IN THE CASE OF:	  

		BOARD DATE:	  25 March 2010

		DOCKET NUMBER:  AR20090015417 


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 the last name shown in his Army military records and on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states that when he enlisted in the Army he used his mother's maiden name, not knowing that his last name was actually B____.  After he was discharged from the Army, he joined the Army National Guard (ARNG) and his records in the ARNG are correct.  He wants to get all of his military and Department of Veterans Affairs' records corrected under the last name of B____.

3.  In support of his application, the applicant provides copies of his DD Form 214, a Certificate of Non-Eligibility for South Carolina ARNG Retirement Pension memorandum, his South Carolina Department of Health and Environmental Control certificate of birth, and a Social Security Administration printout.

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 record shows that he was inducted into the Army of the United States on 4 March 1969.  His DD Form 47 (Record of Induction) shows he was inducted using the last name of K____.  His DA Form 41 (Record of Emergency Data), dated 13 May 1970, indicated his mother's maiden name was B____ and her last name was K____.  The applicant signed all documents in his Army records using the last name of K____.

3.  The applicant was honorably released from active duty in pay grade E-5 on 24 February 1971 and was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).  The applicant placed his signature using the last name K____ in item 32 (Signature of Person Being Separated) of his DD Form 214.

4.  The military documents that are on file in the applicant's official military personnel file (OMPF) show that the applicant served and was released from the Army under the last name of K____ rather than the last name B____.  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 in the Army.

5.  The applicant was discharged from the USAR on 1 March 1975 and issued orders showing his last name shown as K____.

6.  The applicant enlisted in the South Carolina ARNG on 30 November 1978.  His ARNG enlistment contract was not available.  He was honorably separated from the South Carolina ARNG on 1 October 1997 and transferred to the Retired Reserve.  His National Guard Bureau Form 22 (Report of Separation and Record of Service), item 1 (Last Name, First Name, Middle Name), shows his last name as B____.

7.  The applicant submitted a copy of his Certificate of Non-Eligibility for South Carolina ARNG Retirement Pension memorandum, dated 17 August 1998. 
This memorandum identifies the applicant with the last name of B____.

8.  The applicant also submitted a copy of a South Carolina Department of Health and Environmental Control certification of birth issued on 8 January 2008 that was certified to be a true copy of the original certificate filed in the State of South Carolina.  This document identifies a male registrant with the same first and middle names as the applicant's who was born on 19 May 1949 with the last name of B____.  He also submitted a copy of a Social Security Administration printout, dated 21 August 2009.  This document states that an individual with the last name of B____ was assigned the social security number that is listed throughout the applicant's Army and ARNG records.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was inducted into the Army of the United States using the last name of K____.  Throughout his period of service in the Army up to his separation on 4 March 1969 and in the USAR Control Group, he served under the last name of K____ as evidenced by his Army records.  The applicant enlisted in the South Carolina ARNG on 30 November 1978.  It appears he enlisted in the ARNG using the last name of B____.  Throughout his period of service in the ARNG up to his separation on 1 October 1997, he served under the last name of B____.

2.  In his case, the records reflect the last name he preferred to use at the time of induction in the Army of the United States and under which this military service was performed.

3.  While the Board understands the applicant's desire to have the records changed, it finds no basis for compromising the integrity of the Army's records.  For historical purposes, the 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 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)                                         AR20090015417



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ABCMR Record of Proceedings (cont)                                         AR20090015417



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