IN THE CASE OF:	  

		BOARD DATE:	        13 NOVEMBER 2008

		DOCKET NUMBER:  AR20080014228 


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 that his name be changed on his military records from Spires, S_______ M_____ to M_____, S_______; that he be issued a new DD Form 214 (Certificate of Release or Discharge from Active Duty); and that his original "Final Judgment and Decree of Changing Name" be returned to him.

2.  The applicant states that he had his name legally changed to M_____, S_______ and he desires his military records changed to reflect his new legal name and to be issued a new DD Form 214.  He also states that he desires his original "Final Judgment and Decree of Changing Name" be returned to him because it is the only copy he has.

3.  The applicant provides a copy of his DD Form 214 and a Final Judgment and Decree of Changing Name issued by the Superior Court of Gwinnett County, Georgia on 7 December 1999 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 enlisted in the Regular Army in Columbia, South Carolina on 15 January 1985 for a period of 3 years.  At the time of his enlistment, he produced a birth certificate showing that he was born in Columbia, South Carolina on 11 June 1965 under the name of Spires, S_______ M_____, the same name in which he was enlisted.  He also provided a high school diploma containing the same name.

3.  He completed his one-station unit training (OSUT) at Fort Sill, Oklahoma and was transferred to Korea on 6 June 1985 for duty as a fire support specialist.  He completed his tour in Korea on 3 June 1986 and was transferred to Fort Lewis, Washington, where he remained until he was honorably released from active duty (REFRAD) in the pay grade of E-4 on 14 January 1988.  He had served
3 years of total active service and was REFRAD in the Name of Spires, S_______ M_____, the name in which he enlisted and served his entire 3 years of service.

4.  The applicant enlisted in the South Carolina Army National Guard on 20 December 1989, under the name of Spires, S_______ M_____ and served until he was honorably discharged on 1 July 1990 (6 months and 11 days).  He was issued a Report of Separation (NGB Form 22) under that name.

5.  On 7 December 1999, the Superior Court of Gwinnett County, Georgia approved the applicant's petition to change his name from Spires, S_______ M_____ to M_____, S_______.

6.  The applicant is currently incarcerated at the Washington State Department of Corrections under the name of Spires, S_______.

7.  Army Regulation 635-5 (Separation Documents) provides, in pertinent part, guidance on the preparation of the DD Form 214.  This regulation has historically stated that item 1 (Last Name, First Name, Middle Name) of the DD Form 214 will contain the name taken from the Soldier’s personnel record.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that 
the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his name shown in his military records should be changed from Spires, S_______ M_____ to Morgan, S_______.  However, contrary to the applicant's contention, the fact that the name shown in his military records is different than his current name does not constitute an error.

2.  It is understandable that the applicant desires to have the name recorded in his military records changed to his current legal name.  However, there is no evidence of record or independent evidence that suggests the name recorded in his military records exhibits a material error or injustice.

3.  The evidence of record shows that the applicant was enlisted, served, and was honorably released from active duty under the name Spires, S_______ M_____.  The fact that on 7 December 1999, approximately 12 years after his release from active duty, he had his name changed is not a sufficiently mitigating factor that warrants granting the requested relief.

4.  There is no evidence that suggests the applicant has or would suffer any injury or injustice as a result of the Army maintaining its records with the name under which he served.  The Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  While it is understandable the applicant desires to now record his current name in his military records, there is not a sufficiently compelling reason for compromising the integrity of the Army’s records at this late date.  

5.  The applicant is advised that a copy of this decisional document along with his application and the supporting evidence he provided, which confirms his current name, will be filed in his Official Military Personnel File (OMPF).  This should serve to clarify any questions or confusion in regard to the difference in the name recorded in his military records and to satisfy his desire to have his current name documented in his OMPF. 

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Accordingly, there is no basis to grant the applicant's request.




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.

ABCMR Record of Proceedings (cont)                                         AR20080014228



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ABCMR Record of Proceedings (cont)                                         AR20080014228



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