IN THE CASE OF:	  

		BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090002784 


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 1986 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show his date of birth as 14 May 1946 vice 9 January 1948 and that his social security account number (SSAN) be changed to show xx8-42-1122 vice xx9-54-2603.

2.  The applicant states, in effect, when he entered the Army in 1967 he entered under his brother’s name (Wxxxxxx) vice his birth name (Mxxxxxx) after obtaining a new SSAN using the name “Wxxxxxx.”  He states in 1976 when his real identity was discovered he was allowed to remain in the Army and he was told he needed to ensure that all of his records were in order.  He states he was given the choice to revert to his birth name of Mxxxxxx or remain as Wxxxxxx.  He states he chose to continue as Wxxxxxx and his retention was approved.

3.  The applicant states that in 1986 he retired from the Army as Wxxxxxx utilizing the SSAN of XX9-54-2603.  He states his brother died in 2005 and that he subsequently had his name legally changed and reverted to his original SSAN of XX8-42-1122.

4.  The applicant provides a copy of his 1986 DD Form 214, a copy of his birth certificate showing his birth name as Mxxxxxx, a copy of the court document changing his legal name from Mxxxxxx to Wxxxxxx, documents from the Social Security Administration showing his SSAN, and copies of various identification cards, including his driver’s license, military ID, a reissued birth certificate confirming his name as Wxxxxxx with the date of birth of 14 May 1946, and copies of documents associated with his retention in the military under the name Wxxxxxx.

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.  Records available to the Board indicate the applicant enlisted as a Regular Army Soldier on 30 November 1963 under his birth name of Mxxxxxx, with his birth date of 14 May 1946, and utilizing his SSAN of xx8-42-1122.  On 1 March 1965 he was administratively discharged under other than honorable conditions as a result of frequent incidents of misconduct.

3.  On 13 December 1967, after obtaining a new SSAN number utilizing his brother’s name of Wxxxxxx, the applicant enlisted in the Regular Army for a period of 3 years under the name of Wxxxxxx, using his brother’s date of birth of 
9 January 1948, and his new SSAN of xx9-54-2603.

4.  The applicant served successfully under the name of Wxxxxxx through a series of reenlistments and by December 1974 had been promoted to pay grade E-6.

5.  In April 1976, during a background check, it was discovered that the applicant, who was performing duties as a military policeman at Fort Bragg, North Carolina, had fraudulently enlisted in 1967 utilizing his brother’s name and administrative separation action was initiated.  In processing the separation action the Staff Judge Advocate (SJA) at Fort Bragg noted that while the fact that the applicant’s fraudulent enlistment could not be denied, the Army would lose an asset of great value if he were not retained.  The SJA stated that since 1968 the applicant had been an outstanding Soldier.  His efficiency reports were consistently excellent and his record was replete with letters of commendation, certificates of appreciation and two awards of the Army Good Conduct Medal.

6.  On 14 December 1976 the Acting Commanding General, Fort Bragg approved the applicant’s retention on active duty and indicated the applicant should take immediate action to legally change his name from Mxxxxxx to Wxxxxxx and to apply to the Army Board for Correction of Military Records to correct his official military records accordingly.  

7.  The applicant did not follow through on those directions until more than 
30 years later.  He was, however, permitted to reenlist on 16 December 1976, was subsequently promoted to pay grade E-7, and continued to serve honorably under the name of Wxxxxxx, with a date of birth of 9 January 1948, and utilizing SSAN xx9-54-2603.

8.  On 31 May 1986 the applicant was honorably retired.  His military service between 1963 and 1965 under the name of Mxxxxxx was utilized for the computation of his total creditable service.  The applicant’s DD Form 214 reflects his name as Wxxxxxx, a date of birth of 9 January 1948 (which was his brother’s date of birth), and a SSAN of xx9-54-2603, the SSAN he obtained in order to enlist in 1967.

9.  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.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part, it states the DD Form 214 is a synopsis of the Soldier’s 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 evidence confirms the applicant served his entire military career between 1967 and 1986 under the name of Wxxxxxx, utilizing a date of birth of 1 January 1948, and a SSAN of xx9-54-2603 and his 1986 DD Form 214 was completed accordingly.

2.  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 DOB and SSAN under which he served during that period.  For historical purposes, 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.  In the absence of a showing of material error or injustice, this Board is reluctant to recommend that those records be changed.  While it is understandable the applicant desires to now record his correct DOB and SSAN in his military records, there is not a sufficiently compelling reason for compromising the integrity of the Army’s records at this late date.

3.  The applicant is advised that a copy of this decisional document along with his application and the supporting evidence he provided, which confirms his correct DOB and SSAN, 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 DOB and SSAN recorded in his military record and to satisfy his desire to have his correct DOB and SSAN documented in his OMPF.

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)                                         AR20090002784



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ABCMR Record of Proceedings (cont)                                         AR20090002784



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