IN THE CASE OF:	  

		BOARD DATE:	        29 July 2008

		DOCKET NUMBER:  AR20080008690 


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 correction of his records to show his last name as “Moxxx” instead of “Moxxhead” and his date of birth (DOB) as "21 November 1938" instead of "21 March 1938."

2.  The applicant states that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) does not show the correct last name or DOB. 

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DD Form 214, dated 6 November 1961.

	b.  Order Granting Change of Name of an Adult, dated 12 September 2000.

	c.  Certificate of Birth, dated 21 November 1938 (issued on 15 August 1977).

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 applicant's records show that he was born on 21 November 1938, enlisted in the Army National Guard on 17 December 1955, and subsequently enlisted in the Regular Army for a period of 3 year on 24 January 1957.

3.  Item 1 (Name) of the applicant’s DD Form 4 (Enlistment Record-Armed Forces of the United States) shows his last name as “Moxxhead” and Item 15 (Date of Birth) shows he was born on 21 November 1938.  The applicant authenticated this form by placing his signature in Item 38 (Signature of Applicant) and Item 41 (Oath of Enlistment-Signature) using the last name “Moxxhead.”

4.  The applicant’s records further show that he was discharged on 29 January 1958.  The DD Form 214 he was issued at the time shows his last name as “Moxxhead” and his DOB as “21 November 1938.”  He authenticated this form by placing his signature in Item 34 (Signature of Person Being Separated or Discharged) using his last name “Moxxhead.” 

5.  The applicant’s records also show that, after a break-in-service, he again enlisted in the Regular Army for a period of 3 years on 5 April 1961.  Item 1 of his DD Form 4 shows his last name as “Moxxhead” and Item 15 shows his date of birth as "21 November 1938."  He authenticated this form by placing his signature in Items 38 and using the last name “Moxxhead.”  He was honorably discharged on 6 November 1961.

6.  The DD Form 214 he was issued shows he completed 7 months and 2 days of creditable military service during this period of enlistment.  Item 6 (Date of Birth) of this DD Form 214 shows his DOB as “21 March 1938.”  He authenticated this form by placing his signature in Item 34 using the last name “Moxxhead.”  

7.  The applicant's DA Form 20 (Enlisted Qualification Record) created on 3 December 1957 and reviewed by the applicant on several dates, shows his last name as “Moxxhead” and his DOB as “21 November 1938.” 

8.  The applicant provided a copy of his birth certificate, issued on 15 August 1977 that shows his last name as “Moxxhead” and his DOB as “21 November 1938.” 

9.  The applicant also provided a copy of a State order, dated 12 September 2000, granting him a name change from “Moxxhead” to “Moxxx.”  

10.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel File (OMPF), the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Chapter 2 of this regulation states an OMPF is initiated when the Soldier becomes a member of any Army Component.  It further states that once a document is placed in the Official Military Personnel File it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file.

11.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  In establishes standardized policy for the preparation of the DD Form 214.  In pertinent part it states that the DD Form 214 is a synopsis of the soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his DD Form 214, dated 6 November 1961 be corrected to show his last name as “Moxxx” and his DOB as “21 November 1938.” 

2.  With respect to the applicant’s DOB on the DD Form 214, dated 6 November 1961, the evidence of record shows that he was born on 21 November 1938 and that this DOB is consistent with the DOB on several documents in his service record as well as his birth certificate.  The applicant authenticated the DD Form 214 by placing his signature in Item 34; nevertheless, the month of birth is incorrectly shown as March instead of November.  Therefore, the applicant is entitled to correction of his records to show his DOB as 21 November 1938.

3.  With respect to the applicant’s last name on the DD Form 214, dated 6 November 1961, the evidence of record shows the applicant enlisted and served using his last name “Moxxhead” throughout his military service.  His 

enlistments, certificate of birth, evaluations, orders, certificates, and separation documents all reflect the last name “Moxxhead.”  Those service records are consistent with the name he was using at that time.  Evidence of record also shows the applicant’s name was not officially changed from “Moxxhead” to 
“Moxxx” by a civil court petition until 12 September 2000, nearly 39 years after his discharge from the Army.  Therefore, he could not have used the name “Moxxx” during his military service. 

4.  The Army has an interest in maintaining the accuracy of its records for historical purposes.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.  In the absence of compelling information to the contrary, there is no basis for changing the applicant’s last name in this case.  

5.  A copy of this decisional document, along with the applicant’s application will be filed in his Official Military Personnel File (OMPF).  This should serve to clarify any questions or confusion regarding the different names and dates of birth, and adequately document his last name and date of birth in his record. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__xxx___  __xxx___  __xxx___  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 all Department of the Army records of the individual concerned be corrected by deleting the entry "March” from Item 6 of the applicant's DD Form 214, dated 6 November 1961, and adding the entry “November” in its place. 





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 his last name.


															XXX
      ______________________
       	   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)                                         AR20080008690



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ABCMR Record of Proceedings (cont)                                         AR20080008690



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