BOARD DATE:	  30 December 2009

		DOCKET NUMBER:  AR20090013232 


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 WD AGO Form 53-55 (Enlisted Record and Report of Separation) to show his last name as "Rxxxxxo Axxxt" instead of "Cxxxxo Axxxt."

2.  The applicant states that he was adopted by his stepfather on 10 October 1946 and his last name was changed from "Cxxxxo Axxxt " to "Rxxxxxo Axxxt."

3.  The applicant provides a copy of his National Archives Form 13038 (Certification of Military Service), dated 19 September 1975; a copy of his WD AGO Form 53-55, dated 9 March 1946; a copy of an adoption document (in Spanish); and a copy of his certification of birth, issued 17 July 2009, in support of his request.

4.  On 12 August 2009, the applicant submitted a statement (in Spanish), together with a sworn affidavit, dated 13 August 2009; another copy of his certification of birth, issued 17 July 2009; copies of his medical records and/or reports and an X-ray, dated on various dates in 2009; a copy of his Department of Veterans Affairs (DVA) Medical Card; a copy of his Puerto Rico (PR) driver's license; a copy of his DVA rating decision, dated 26 November 2007; and a copy of his handicapped parking permit.

5.  On 6 September 2009, the applicant submitted additional copies of the documentary evidence he previously submitted and asked the Board for help.


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.  Prior to his induction into the Army of the United States, the applicant underwent a physical examination for induction.  The Report of Physical Examination and Induction, dated 20 October 1943, listed his last name as "Cxxxxo/Axxxt."  The applicant authenticated this form by placing his fingerprints in the appropriate blocks.

3.  The applicant's records show he was inducted into the Army of the United States and entered active duty at Fort Buchanan, PR, on 11 November 1943.  He completed basic combat training and performed duties as a messenger for nearly 7 months.  He subsequently performed duties as a draftsman for about 15 months while assigned to Headquarters Company, 295th Infantry, Panama.

4.  The applicant's records also show he completed 2 years, 3 months, and 29 days of foreign service.  He was honorably separated on 9 March 1946.  The WD AGO Form 53-55 he was issued listed his last name as "Cxxxxo Axxxt."

5.  The applicant's records contain various personnel, medical, and pay documents that show his last name as "Cxxxxo-Axxxt."  These documents include his WD AGO Form 100 (Separation Qualification Record), dated 9 March 1946; his WD Form 372A (Final Payment), dated 31 January 1946; his WD AGO Form 38 (Report of Physical Examination of Enlisted Personnel Prior to Discharge, Release from Active Duty, or Retirement), dated 7 March 1946, and several other medical documents and forms.

6.  The applicant submitted various documents including a copy of his adoption document and a sworn statement affidavit, dated 13 August 2009, in which he states that he joined the Army under the last name "Cxxxxo Axxxt," but was subsequently adopted on 10 October 1946 by his stepfather who held the last name "Rxxxxxo" and was the husband of his mother as evidenced by the resolution issued by the District Court of PR on 10 October 1946.

7.  The applicant also submitted several other documents including a copy of his certification of birth, issued 17 July 2009; copies of his medical records and/or reports and an X-ray, dated on various dates in 2009; a copy of his DVA Medical Card; a copy of his PR driver's license; a copy of his DVA rating decision, dated 26 November 2007; and a copy of his handicapped parking permit that show his last name as "Rxxxxxo Axxxt."

8.  War Department Technical Manual 12-236 (Preparation of Separation Forms) and Army Regulation 635-5 (Separation Documents), currently in effect, prescribe the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  These regulations establish standardized policy for the preparation of the separation document.  In pertinent part, they state that the separation document is a synopsis of the Soldier's most recent period of continuous active duty and 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 applicant contends that his WD AGO Form 53-55 should be corrected to show his last name as "Rxxxxxo Axxxt " instead of "Cxxxxo Axxxt."

2.  The applicant's service records show he enlisted and served using the last name "Cxxxxo Axxxt."  This last name is consistent with the last name shown on various personnel, finance, and medical documents throughout his military service, including his WD AGO Form 53-55.  He was adopted after his separation from the Army and did not use his adopted name during his military service.

3.  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 records in this case.

4.  A copy of this decisional document along with the application will be filed in the applicant's military service records.  This should serve to clarify any questions or confusion regarding the applicant's different last names and adequately document his last name in his record for the purpose of entitlement to veterans' benefits.


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)                                         AR20090013232



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ABCMR Record of Proceedings (cont)                                         AR20090013232



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