IN THE CASE OF:	  

		BOARD DATE:	  	  14 April 2009

		DOCKET NUMBER:  AR20080016768 


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, that the middle name on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected.

2.  The applicant states, in effect, that his middle name is "Harold"; however, the name "Hardley" was typed on his DD Form 214 as his middle name.  The applicant requests correction of his DD Form 214 to prevent future confusion.

3.  The applicant provides copies of his DD Form 214 with an effective date of 22 May 1972 and Ohio Department of Health Division of Vital Statistics Certificate of Live Birth signed on 8 July 1950.

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 military personnel records contain a DD Form 398 (Statement of Personal History), dated 5 November 1970.  Item 1 (First Name-Middle Name-Maiden Name (if any)-Last Name) contains the entry "B____ HAROLD M____."  This document also shows the applicant’s date of birth (DOB) is recorded as "_ July 1950" and that the applicant authenticated the document with his signature as "B____ HAROLD M____" on 5 November 1970.  The document was witnessed by an Army enlisted Soldier assigned to the U.S. Army Reception Station, Fort Knox, Kentucky.

3.  The applicant’s military personnel records contain a DD Form 4 (Enlistment Contract-Armed Forces of the United States), dated 16 November 1970.      Item 5 (Last Name-First Name-Middle Name) contains the entry "M____ B____ HARDLEY."  This document also shows that the applicant’s   DOB is recorded as "_ July 1950" and that he enlisted in the Regular Army (RA) for a period of 2 years on 16 November 1970.  Item 57 (Oath of Enlistment) shows   the applicant’s name is recorded as "B____ HARDLEY M____" and   that the applicant authenticated the document with his signature as "B____ HAROLD M____."  This document was witnessed by a commissioned officer assigned to the Armed Forces Entrance and Examination Station, Cleveland, Ohio.

4.  The applicant’s military personnel records contain an Armed Forces Fingerprint Card, dated 23 November 1970, that shows the applicant’s name is recorded as "M____, B____ HAROLD" and his DOB is recorded as "_ July 1950."  This document also shows the applicant authenticated the document with his signature as "B____ HAROLD M____" on 16 November 1970.

5.  The applicant’s military personnel records contain a DD Form 1584 (National Agency Check Request), dated 2 December 1970.  Item 1 (Last Name-First Name-Middle Name) contains the entry "M____ B____ HAROLD."  This document also shows the applicant’s DOB is recorded as "_ July 1950."

6.  The applicant’s military personnel records contain a DD Form 214 with an effective date of 22 May 1972.  Item 1 (Last Name-First Name-Middle Name) of this document shows the applicant's name is recorded as "M____, B____ HARDLEY."  This document also shows that his DOB is recorded as "_ July 1950."  The DD Form 214 shows the applicant entered active duty in the RA on 16 November 1970, was honorably released from active duty on 22 May 1972, and was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining military service obligation.  The applicant authenticated the document with his signature as "B____ H. M____."  At the time he had completed 1 year, 6 months, and 7 days of net active service this period.
7.  In support of his application, the applicant provides a copy of an Ohio Department of Health Division of Vital Statistics Certificate of Live Birth signed by the medical doctor on 6 July 1950.  This document shows the applicant was born on "_ July 1950" and his name was recorded as "B____ HAROLD M____."  This document also shows that it was received and recorded by the local registrar on 8 July 1950.

8.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment) prescribes eligibility criteria governing the enlistment of persons, with or without prior service, into the RA and USAR.  Chapter 2 (Enlistment in the RA, AR, or Army National Guard for Non-prior Service Applicants), paragraph 2-5 (Name), in pertinent part, provides that ordinarily the applicant will be enlisted in the name shown in birth, baptismal, or naturalization certificate, or court order authorizing a name change.  Chapter 6 (Military Entrance Processing Station Processing Phase), paragraph 6-15 (Correction of errors on enlistment forms), provides procedures to correct errors found after applicant has enlisted and forms are distributed and, in pertinent part, instructs to provide a copy of the approved correspondence that directs correction of the DD Form 4 to the official military personnel file record custodian for appropriate administrative action and filing of the correspondence with the DD Form 4.

9.  Army Regulation 635-5 (Personnel Separations-Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.  This Army regulation states that the purpose of a separation document is to provide the individual with documentary evidence of his or her military service at the time of separation.  Therefore, it is important the information entered thereon is complete and accurate as of that date.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.  Paragraph 17 (Item 1-Last Name-First Name-Middle Name) states to enter the last name, first name, and full middle name or names, if any.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the middle name on his discharge document should be corrected because it does not correspond with the legal name that is recorded on his birth certificate.

2.  The evidence of record shows the applicant’s name on his birth certificate is recorded as "B_____ HAROLD M____."  The evidence of record also shows that at the time of his processing for entrance and enlistment in the U.S. Army, the applicant completed a Statement of Personal History, Armed Forces Fingerprint Card, and National Agency Check Request.  In all instances, the applicant’s name is shown as "B____ HAROLD M____" and the applicant authenticated the pertinent documents with his signature showing his middle name as "Harold."

3.  The evidence of record shows that upon enlistment in the RA, the applicant’s middle name was recorded on his DD Form 4 as "HARDLEY."  Despite the fact that the applicant had a responsibility to review and verify the information contained on the document, an incorrect middle name was recorded on his enlistment contract.  Nonetheless, the applicant authenticated his enlistment contract with his correct legal name and signature as "B____ HAROLD M____."  Thus, it is reasonable to conclude that the applicant did not notice the typographical error at the time he signed his enlistment contract with his correct legal name.  Therefore, based on the evidence of record, it would be appropriate to correct the applicant’s records to show his correct legal name on his DD Form 4.  However, since Army regulatory guidance precludes amending the DD Form 4 by "pen and ink" correction, an appropriate document should be placed into the applicant's military service records directing the correction.

4.  The evidence of record shows the name "B____ HARDLEY M____" was subsequently recorded on the applicant’s DD Form 214.  Thus, it is reasonable to conclude that Army officials transcribed the name of record on his DD Form 4 onto his DD Form 214 and the applicant was either informed that this was the name as recorded in official Army records, or he did not notice the typographical error at that time.  In any event, the evidence of record is clear and convincing that the applicant’s legal name is "B____ HAROLD M____" and that the applicant’s middle name was not correctly recorded on his separation document.  Therefore, in view of all of the foregoing, it would be appropriate to correct the applicant’s DD Form 214 to show his correct legal name.

BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

	a.  annotating his DD Form 4 with an effective date of 16 November 1970 to show correction of:

		(1)  item 5 to show his full name as "M____, B____ HAROLD"; and

		(2)  item 57 to show his legal name "B____ HAROLD M____"; and

	b.  correcting his DD Form 214 with an effective date of 22 May 1972 by:

		(1)  deleting from item 1 the entry "M____, B____ HARDLEY"; and

		(2)  adding to item 1 the entry "M____, B____ HAROLD."



      ____________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)                                         AR20080016768



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ABCMR Record of Proceedings (cont)                                         AR20080016768



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