DOCKET NUMBER:  AR20090000526 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 12 December 1969, as follows:

	a.  change his name to show "C____ E. Rex L____" by including his nickname "Rex."

	b.  change his grade at the time of his separation from specialist five (SP5)/
pay grade E-5 to sergeant (SGT)/pay grade E-5.

2.  The applicant states that his legal name is shown on his DD Form 214.  He also states that he has been known by his middle name "Rex" for his entire life.  He further states that although his job was technical in nature, he managed a crew of five Soldiers; therefore, he was given the rank of sergeant.  The applicant continues that after contacting the Jefferson Barracks National Cemetery located in St. Louis, Missouri, he learned that the provided headstone would include information as it appears on his DD Form 214.  He adds that he wants his DD Form 214 corrected so his headstone will reflect the correct information.  The applicant concludes that he does not want to go through eternity with incorrect information on his tombstone and does not want his wife to have to deal with these errors after he dies.

3.  The applicant provides copies of special orders showing his grade as SGT and his DD Form 214 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 record contains a DD Form 47 (Record of Induction), dated 2 January 1968.  Item 1 of this form shows the applicant's name as "L____, C____ E____."

3.  The applicant's record contains a DA Form 873 (Certificate of Clearance and/or Security Determination Under Executive Order 10450), dated 3 July 1968. 
Item 1 of this form shows the applicant's name as "L____, C____ E____."

4.  The applicant's record contains Headquarters, United States Army, Southern European Task Force, Special Orders Number 248 Extract, dated 29 November 1969, which promoted him from the grade of specialist four (SP4)/pay grade E-4 to the temporary grade of SGT effective 28 November 1969.  His name appears as "L____, C____ E." on these orders.

5.  The applicant's record contains a DA Form 20 (Enlisted Qualification Record). 
Item 1 of this form shows the applicant's name as "L____, C____ E."  Item 33 (Appointments and Reductions) of this form shows the applicant was promoted to the temporary grade of SGT effective 28 November 1969.

6.  The applicant's record contains Headquarters, United States Army Personnel Center, Fort Hamilton, Brooklyn, New York, Special Orders Number 243 Extract, dated 12 December 1969, which relieved him from active duty effective 12 December 1969 and transferred him to the United States Army Reserve in the rank of SGT effective 13 December 1969.  His name appears as "L____, C____ E____" on these orders.


7.  Item 1 (Last Name-First Name-Middle Name) of the applicant's DD Form 214 shows his name as "L____, C____ E____."  Item 5a shows his temporary grade at the time of his separation as "SP5."

8.  A thorough review of the documents contained in the applicant's service personnel record revealed that his name appeared consistently as either "L____, C____ E____," "L____, C____ E.," "C____ E____ L____," or "C____ E. L____."  The applicant's nickname "Rex" does not appear on any document contained in his available record.

9.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for the preparation of the DD Form 214.  It stated that the DD Form 214 was a synopsis of the Soldier’s most recent period of continuous active duty.  It provided a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  In pertinent part, the regulation stated that:

	a.  the separating Soldier's last name, first name, and full middle name would be entered in item 1 of the DD Form 214; and

	b.  the grade in which the Soldier was serving at the time of separation along with an indication of whether the grade was permanent (P) or temporary (T) would be entered in item 5a of the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his DD Form 214 should be corrected by including his nickname "Rex" and changing the grade he held at the time of his separation to "SGT" were carefully considered and determined to have partial merit.

2.  Special orders promoted the applicant to the temporary grade of SGT effective 28 November 1969.  The evidence of record shows the applicant was serving in the temporary grade of SGT at the time of his separation from active duty.  Therefore, he is entitled to correction of his DD Form 214 to show that his grade was SGT (T).

3.  The evidence of record shows that when the applicant was inducted into the Army of the United States on 2 January 1968 he indicated that his name was "C____ E____ L____."  His name is consistent on every document in his available service personnel record throughout his military service.  The applicant authenticated several documents by placing his signature in the appropriate block indicating that his name on each form was correct.  There is no indication that he used the requested nickname in any formal capacity during his military service.

4.  There is no regulatory provision for including a nickname on a Soldier's DD Form 214.

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 records to include his nickname.

6.  In order to justify correction of a military record the applicant must show, 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.  In absence of evidence to the contrary, the preponderance of evidence in the available records supports presumption of regularity in the personnel records maintenance process.

7.  Based on the foregoing, it would be inappropriate in this case to amend the applicant's records to show his nickname.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ____x___  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that item 5a of the DD Form 214 of the individual concerned be corrected by showing his grade at the time of his separation was "SGT (T)."


2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amending the applicant's DD Form 214 to show his nickname.



      ____________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)                                         AR20090000526



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ABCMR Record of Proceedings (cont)                                         AR20090000526



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