IN THE CASE OF:	  

		BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090008908 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show that his last name is H----y instead of B------g.

2.  The applicant essentially states that he used the last name of B------g, which was his step-father's last name, when he joined the Army in 1969.  However, when he got out of the service he started using the last name of H----y, which was his birth last name.

3.  The applicant provides his DD Form 214; a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 6 May 2009; a copy of his State of Ohio Certificate of Birth, issued on 11 May 2005; a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 24 April 1979; and a copy of his social security card in support of this 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 military records show that he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 9 April 1969.  He was discharged from the USAR DEP on 19 June 1969 and he enlisted in the Regular Army (RA) on 20 June 1969 for a period of 3 years.  His initial enlistment contract shows that he enlisted under the last name of B------g.  In conjunction with this enlistment, he completed a USAREC [U.S. Army Recruiting Command] Form 131-R (Applicant's Statement of Name Change) in which he stated that he had not changed his name through any court procedure and that he preferred to use the last name of L------e T----s B------g as a matter of convenience and with no intent to defraud.  He also stated that he was the same person whose name appeared on the birth certificate he provided [which shows the name L------e
T----s H----y.  This statement was signed by both the applicant and his recruiter, and was witnessed by his mother on 2 April 1969.  His enlistment contract into the RA on 20 June 1969 also contained the last name of B------g, as did every document in his military records for his service from 20 June 1969 to 19 January 1972.  

3.  The applicant provided a copy of his birth certificate and social security card which shows that his last name is H----y.  He also provided an NGB Form 22 for the period ending 24 April 1979 which shows that he served in the Idaho Army National Guard (IDARNG) from 14 August 1978 to 24 April 1979 under the last name of H----y.

4.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the active Army.  Chapter 2 contains guidance on the preparation and distribution of the DD Form 214.  Paragraph 2-4 contains item by item instructions for completion of the DD Form 214 and it states, in pertinent part, that Item 1 will contain the name taken from the Soldier’s personnel record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show that his last name is H----y instead of B------g.

2.  The evidence of record clearly shows that the applicant enlisted in both the USAR and the RA under the preferred last name of B------g.  The fact that he now, more than 37 years after his release from active duty, requests that the last name recorded in his military records be changed from B------g to H----y is not a sufficiently mitigating factor that warrants granting this requested relief, especially when the applicant himself officially requested to be referred to by the last name of B------g instead of H----y during his USAR and RA service.

3.  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 last name under which he served.  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 last 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.  

4.  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 last 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 last name recorded in his military record and to satisfy his desire to have his correct last name documented in his OMPF.

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)                                         AR20090008908



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090008908



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1