IN THE CASE OF:
BOARD DATE: April 14, 2009
DOCKET NUMBER: AR20080019274
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 last name shown on his DD Form 214 (Report of Separation from Active Duty).
2. The applicant states, in effect, that his birth certificate was not available when he enlisted and he was not aware of the last name recorded on the certificate. He also states that his birth certificate was not found until 1980 and legally his last name is C______.
3. In support of his application, the applicant provides copies of a Certification of Birth and his DD Form 214.
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 record shows that he enlisted in the Army Delayed Entry Program (DEP) on 25 January 1974. He enlisted in the Regular Army, in pay grade E-1, on 1 February 1974, for 3 years. His DA Form 3284-R (Applicant's Statement of Name Change) shows he elected not to use the last name recorded on his birth certificate. He indicated that he had not changed his name through any court procedure and preferred to use the last name of W_________ as a matter of convenience and with no intent to defraud. He also stated he was the same person whose name appeared on the birth certificate.
3. The applicant was separated from active duty, in pay grade E-1, on 2 July 1975, with a general discharge. He was credited with 1 year, 5 months, and 2 days net active service. The applicant placed his signature, using the last name W_________ in Item 29 (Signature of Person Being Separated).
4. The applicant's records contain, and he provided, a copy of a Certificate of Birth that identifies a male registrant with the same first and middle names as the applicant's who was born on 15 November 1955, in the City of New York, with the last name of C______.
5. The military documents that are on file in the applicants Official Military Personnel File (OMPF) show that the applicant served and was released from active duty under the last name of W_________ instead of the last name C______. There is no evidence in his service personnel records to show he applied for a legal name change of his last name, while he served on active duty or in the United States Army Reserve.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant enlisted in the DEP and the RA in 1974. At the time of his enlistment in the RA he provided a copy of his birth certificate. He completed a DA Form 3284-R stating that he preferred to use the last name of W_________ and not the last name recorded on his birth certificate. He served on active duty using the last name of W_________ until he was discharged on 2 July 1975.
2. There is no evidence, and the applicant has provided none, which would indicate that an injustice will occur if his last name is not changed on his DD Form 214 as requested. In his case, the records reflect the last name he preferred to use at the time of enlistment in the Regular Army and under which military service was performed.
3. While the Board understands the applicants desire to have the records changed, it finds no basis for compromising the integrity of the Armys records. For historical purposes,Tte Army has an interest in maintaining the accuracy of its records for historical purposes. The data contained in those records should reflect the conditions and circumstances that existed at the time the records were created. In the absence of a showing of material error or injustice no basis has been established to support the change requested.
4. A copy of this decisional document, along with the applicants application and enclosures will be filed in the applicant's OMPF. This should serve to clarify any questions or confusion regarding the different last names.
5. In view of the foregoing, there is no basis for granting 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.
_______ _ _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) AR20080019274
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ABCMR Record of Proceedings (cont) AR20080019274
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