IN THE CASE OF:	  

		BOARD DATE:	        21 August 2008

		DOCKET NUMBER:  AR20080008495 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests the service records of her mentally incompetent husband, a former service member (FSM), be corrected as follows:

	a.  change his racial category from white to Native American;

	b.  correct his last name on his NGB Form 22 (Report of Separation and Record of Service), with an effective date of 29 July 2004;

	c.  list all of his awards and decorations on his retirement DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 6 January 2006; and

	d.  properly identify all of his tattoos in his medical records.

2.  The applicant states "because they are and that is the truth about these few matters."

3.  The applicant provides:

	a.  the FSM’s NGB Form 22;

	b.  the FSM’s DD Form 214;

	c.  the FSM’s DD Form 1966/1 (Record of Military Processing – Armed Forces of the United States), with an enlistment date of 12 November 2003;
	d.  copies of four cards, all of which state, "THIS IS TO CERTIFY THAT [NAME] IS AN ENROLLED MEMBER OF THE MOWA BAND OF CHOCTAW INDIANS OF SOUTH ALABAMA."  The cards have a space for a "Roll #" and a signature of the tribal chairman.  The applicant alleges that card #1 [Roll # 3093 SUPP] is the FSM's great grandmother; card #2 [Roll # 3110 SUPP] is the FSM's grandmother; card #3 [Roll # 3098 SUPP] is the FSM's mother; and card #4 [Roll # 3151] is the FSM’s;

	e.  copies of Alabama Driver Licenses for the FSM's mother and the FSM;

	f.  copy of a Power of Attorney, dated 5 July 2007, wherein the FSM appoints the applicant as his true and lawful attorney;

	g.  copy of a Marriage License showing the FSM and the applicant were married on 19 July 2004;

	h.  Department of Veterans Affairs (DVA) Form 200 (Statement in Support of Claim), dated 12 March 2007;

	i.  copy of the cover page of a DVA Rating Decision, dated 6 November 2007;

	j.  copy of a VA Form 21-4703 (Fiduciary Agreement), dated 27 December 2007; and

	k.  Photographs purported to be of the FSM's tattoos.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM enlisted in the US Army Reserve (USAR) for 8 years on 15 March 2000.  The following pertinent information is discernable from his enlistment paperwork:
	a.  his DD Form 1966/1 (Record of Military Processing – Armed Forces of the United States) shows his racial category in Item 7a as "white";

	b.  his SF 88 (Report of Medical Examination) for his USAR enlistment physical examination shows in Item 39 (Identifying body marks, scars, tattoos) "scar right eyebrow"; and

	c.  his DD Form 369 (Police Record Check) shows his race/ethnic group in Item 6 as "White, not of Hispanic origin."

3.  The applicant enlisted in the Alabama Army National Guard (ALARNG) on 12 November 2003.  Again, pertinent entries on his enlistment paperwork show his racial category on his DD Form 1966/1, Item 7a, as "white."

4.  On 3 June 2004, the FSM enlisted in the Regular Army for 3 years.  For the third time, he annotated his racial category on his DD Form 1966/1 as "white."  His DD Form 2808 (Report of Medical Examination), dated 15 March 2004, lists his racial category as "White-Not Hispanic Latino," and indicates in Item 37 (Identifying body marks, scars, tattoos) "Tattoos rt [right] arm – dragon head; Left scapula-a bull's head."

5.  The reason for the FSM's discharge from the Regular Army is not contained in the record.  His DD Form 214 shows he was honorably retired by reason of temporary disability on 6 January 2006.  It shows in Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) he was awarded the National Defense Service Medal, the Army Service Ribbon, the Global War on Terrorism Service Medal, and the Global War on Terrorism Expeditionary Medal.  These same awards are reflected on his Enlisted Record Brief.

6.  The FSM's record contains an NGB 22 with a effective date of 29 July 2004.  It misspells his last name by erroneously omitting the letter "s" at the end of his last name.  This document also shows that he was awarded the Army Reserve Components Achievement Medal on 14 March 2003.

DISCUSSION AND CONCLUSIONS:

1.  The FSM's NGB 22 contains an error in Item 1 (Last Name, First Name, Middle Name).  The FSM's last name ends in the letter "S," but this form omits the letter "S."  This error should be corrected.

2.  The applicant claims the FSM is a Native American, yet in every document completed by the FSM during his multiple enlistments, he lists his racial category as white, not of Hispanic or Latino descent.  

3.  The applicant's evidence of the FSM's Native American heritage is not persuasive.  The cards are not certified as true and correct and the names of the individuals on the cards are not proven to be relatives of the FSM.  Furthermore, the FSM's card is different from the other three cards and his name is hand-printed, not typed.  This evidence is not credible as a basis for changing a record.

4.  The FSM's record, as far as awards are concerned, shows that he was awarded the Army Reserve Components Achievement Medal on 14 March 2003. This award is the only verifiable award that is not reflected on the FSM's DD Form 214.  It should be added to his DD Form 214.

5.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  Throughout the FSM's service, he consistently categorized his racial category as "white" or "white, not Hispanic."  If the FSM is a Native American, he presumably has been Native American all of his life.  That being the case, he purposely chose to portray himself as "white" and that portrayal should stand for historical accuracy of the Army records.

6.  The applicant provided photographs purportedly taken of the FSM's tattoos and requests the tattoos be properly identified on the FSM's service medical records.  The following issues apply:

	a.  The ABCMR has no way of ascertaining whether or not the tattoos are, in fact, the FSM's tattoos.

	b.  The Army has a tattoo policy which is directly related to the enlistment of prospective Soldiers; it is not related to retirees.  The FSM's tattoos are not relevant to his service medical records and their addition to those records serve no purpose.

	c.  Finally, the FSM is currently on the Temporary Disability Retired List (TDRL); that means he will be medically re-evaluated at a future date to assess whether his disability has resolved, stabilized, or gotten worse.  The applicant should request the documentation in medical records of the FSM's tattoos at his next TDRL re-evaluation.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ___X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that the state Army National Guard records and the Department of the Army records of the individual concerned be corrected by:

	a.  correcting the FSM's NGB 22, with effective date of 29 July 2004, by adding an "S" to his last name; and

	b.  issuing the FSM a DD Form 215 (Correction to DD Form 214) adding the Army Reserve Components Achievement Medal to Item 13.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing the FSM's racial category and the documentation of his tattoos in medical records.



      _________X_____________
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080008495



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ABCMR Record of Proceedings (cont)                                         AR20080008495



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