IN THE CASE OF:
BOARD DATE: 30 October 2008
DOCKET NUMBER: AR20080014211
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 last name on his WD AGO Form 53-55 (Enlisted Record and Report of Separation-Honorable Service) from Haxxxy to Heaxxxy.
2. The applicant states that the spelling of his last name is incorrect on all of his military records. He also adds that his birth was not reported to the local health department at the time and that he does not have a birth certificate.
3. The applicant provides a copy of his Social Security Card 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records are not available to the Board for review. A fire destroyed approximately 18 million service members records at the National Personnel Records Center in 1973. It is believed that the applicants records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.
3. The applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 4 February 1943 and entered active duty on 11 February 1943 at Camp Shelby, Mississippi. The applicants record of induction is not available for review with this case.
4. The applicants WD AGO Form 53-55 also shows he was trained in military occupational specialty (MOS) 345 (Truck Driver) and that at the time of his separation, he was assigned to the 212th Port Company.
5. The applicants WD AGO Form 53-55 shows he completed 2 years, 10 months, and 5 days of active military service, 2 years, 3 months, and 11 days of which was foreign service. He was honorably separated on 13 December 1945.
6. Item 1 (Name) of his WD AGO Form 53-55 shows his last name as Haxxxy. He authenticated this form by placing his signature in Item 56 (Signature of Person Being Separated) using his last name Haxxxy.
7. The applicant submitted a copy of his Social Security Card that shows his last name as Heaxxxy.
8. 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 (or the WD AGO Form 53-55). In pertinent part it states that the DD Form 214 is a synopsis of the Soldiers 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 his WD AGO Form 53-55, dated 13 December 1945 be corrected to show his last name as Heaxxxy instead of Hexxxy.
2. The applicants record is void of his record of induction or any other military records. In the absence of evidence to the contrary, it is presumed that the applicant was inducted and served under the last name Haxxxy which is shown on his WD AGO Form 53-55.
3. 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 applicants last name in this case.
4. A copy of this decisional document, along with the applicants application will be filed in his military records. This should serve to clarify any questions or confusion regarding the different names and adequately document his last name 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.
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.
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