IN THE CASE OF:	

		BOARD DATE:	  3 February 2009

		DOCKET NUMBER:  AR20080009735 


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, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 2 October 1956, as follows:

   a.  change his last name from "Mxxxxxxxe-Mxxxxa" to "Mxxxxxxxe";

	b.  change his date of birth from "20 January 1928" to "3 November 1926"; and

	c.  change his rank at the time of his separation from "SP-3" [specialist third class/pay grade E-4] to his retired rank of "SFC" [sergeant first class/pay grade E-7].

2.  The applicant states, in effect, that when his mother initially registered his birth in the Commonwealth of Puerto Rico, she mistakenly entered the wrong date of birth.  The applicant also states that the last name and date of birth that he used throughout his military career were incorrect due to the fact that he was provided erroneous information by his family members.  The applicant concludes that these mistakes in his record are not the result of any error committed by either the Army or himself.

3.  The applicant provides copies of a court order, a birth certificate, his certificate of Retirement, and his United States Uniformed Services Identification and Privilege Card as documentary evidence in support of his application. 


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 complete military record is not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents on file for the Board to conduct a fair and impartial review of this case.

3.  The applicant's DD Form 214 (Report of Separation from the Armed Forces of the United States) for the period 31 October 1950 through 15 October 1953, shows he was inducted into the Army of the United States in San Juan, Puerto Rico, on 31 October 1950.  Item 1 (Last Name, First Name, Middle Name) of this form shows his last name as "Mxxxxxxxe-Mxxxxa."  Item 10 (Date of Birth) shows his date of birth as "20 January 1928."  The applicant authenticated this form by placing his signature in Item 48 (Signature of Person Being Separated) and signed his last name as "Mxxxxxxxe-Mxxxxa."  This form also shows the applicant was discharged from the Army of the United States in order to enlist immediately in the Regular Army.

4.  Item 1 (Last Name, First Name, Middle Name) of the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period 16 October 1953 through 2 October 1956 shows his last name as "MxxxxxxxE-MxxxxA."  Item 6 (Date of Birth) shows his date of birth as "20 January 1928."  The applicant authenticated this form by placing his signature in Item 34 (Signature of Person Being Transferred or Discharged) and signed his last name as "Mxxxxxxxe-Mxxxxa."


5.  Departments of the Army and the Air Force National Guard Bureau, Washington, DC, letter dated 26 February 1974, shows the applicant was notified of his eligibility for retired pay at age 60.  The letter addressed the applicant by his last name of "Mxxxxxxxe-Mxxxxa."

6.  The applicant provides a court order from the District Court located in Sala De Carolina, Puerto Rico [which was rendered in Spanish and interpreted by a member of the ABCMR staff], dated 19 January 1981.  This document, in effect, shows that when the birth of the applicant was initially registered on 14 April 1931, it was with the incorrect date of birth.  This document also shows that the applicant's actual date of birth is 3 November 1926 and that his legal last name is "Mxxxxxxxe."

7.  The applicant provides a Commonwealth of Puerto Rico, Department of Health, Division of Demographic Registry, Certificate of Birth Registration, issued 28 January 1982, which shows his last name as "Mxxxxxxxe" and his date of birth as "3 November 1926."

8.  Item 4 (Last Name, First Name, Middle Initial) of DD Form 108 (Application for Retired Pay Benefits), dated 2 September 1986, shows the applicant's last name as "Mxxxxxxxe-Mxxxxa."  Item 2 (Date of Birth) shows his date of birth as "3 November 1926."  Item 5 (Highest Grade Held) shows "E-7."  The applicant authenticated this form by placing his signature in Item 18 (Signature) and signed his last name as "Mxxxxxxxe-Mxxxxa."

9.  U.S. Army Reserve Personnel Center, Saint Louis, Missouri, Orders P-003856, dated 3 November 1986, retired the applicant and placed him on the Retired list of the Army of the United States effective 3 November 1986 in the retired grade of sergeant first class/pay grade E-7.  This order referred to the applicant by the last name of "Mxxxxxxxe-Mxxxxa."

10.  Item 1a (Last Name, First Name, Middle Name) of DA Form 3713 (Data for Retired Pay), dated 3 November 1986, shows the applicant's last name as "Mxxxxxxxe-Mxxxxa."  Item 3 (Retired Grade) shows "E7."  Item 6 (Date of Birth) shows his date of birth as "3 November 1926."  Item 8 (Highest Grade Attained) shows "E7."  This form also shows the applicant was retired from the Army National Guard and placed on the Retired List on 3 November 1986, the 60th anniversary of his birth date shown in Item 6.


11.  U.S. Army Reserve Personnel Center, Saint Louis, Missouri, letter, dated 10 November 1986, addressed to "Sergeant First Class Jxxxo E. Mxxxxxxxe-Mxxxxa," informed the applicant that his application for retired pay had been approved and how to go about obtaining identification cards for himself and his eligible dependents.  This letter also informed the applicant of some of the benefits and privileges to which he was entitled as a retiree.

12.  The applicant provides a copy of his DD Form 3638 (Certificate of Retirement) which shows "SERGEANT FIRST CLASS (E7) Jxxxo E. Mxxxxxxxe-Mxxxxa [social security number]" was retired from the U.S. Army on 3 November 1986.

13.  The applicant provides a copy of his DD Form 1173 (United States Uniformed Services Identification and Privilege Card) which shows his status as "U.S. Army Retired."  This card also shows his retired rank and pay grade as "SFC/E7", and his last name as "Mxxxxxxxe."

14.  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's contentions that his DD Form 214, dated 2 October 1956, should be corrected to show his last name as "Mxxxxxxxe," his date of birth as "3 November 1926," and his rank at the time of his separation as "SFC" were carefully considered and determined to lack merit.

2.  The evidence of record shows that when the applicant was inducted into the Army of the United States on 31 October 1950, he indicated that his date of birth was 20 January 1928 and his last name was "Mxxxxxxxe-Mxxxxa."  Evidence also shows the applicant enlisted in the Regular Army using the same name and date of birth.  His name and date of birth are consistent on several documents in his service record throughout his entire military service.   The applicant authenticated several documents by placing his signature in the appropriate block, indicating that his name and date of birth on each form was correct.  There is no indication that he used the requested name or date of birth during his military service.

3.  The DD Forms 214 that were issued to the applicant in 1953 and 1956 were properly constituted based upon contemporaneous information and require no correction.

4.  Evidence shows the applicant is in possession of an accurate United States Uniformed Services Identification and Privilege Card and is receiving retired pay for the proper retired grade of SFC/E-7.

5.  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.  

6.  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 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  __x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _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)                                         AR20080009735





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ABCMR Record of Proceedings (cont)                                         AR20080009735



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