IN THE CASE OF:
BOARD DATE: 04 March 2010
DOCKET NUMBER: AR20090016972
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 to item 19b (Nearest Relative) of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated
31 October 2004.
2. The applicant states, in effect, item 19b of his DD Form 214, dated
31 October 2004, should be changed to reflect the name of his current spouse instead of the name of his former spouse to ensure his former spouse cannot claim benefits his current spouse may be eligible for upon his death.
3. The applicant provides a self-authored statement, DD Form 214, divorce decree, and marriage license 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants record shows he was retired on 31 October 2004. The
DD Form 214 he was issued at the time shows he completed a total 22 years,
6 months, and 25 days of active military service, and that he held the rank of chief warrant officer three (CW3) on the date of his retirement.
3. Item 19b of the applicant's DD Form 214 contains the name and address of his former spouse. The applicant authenticated this document with his signature on the date of his retirement.
4. The applicant provides a copy of a divorce decree that shows he and his former spouse were divorced on 16 August 2005; more than a year after his
DD Form 214 was issued. He also provides a copy of a marriage certificate that shows he married his current spouse on 6 June 2008, more than three years after the DD Form 214 was issued.
5. 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. It also establishes standardized policy for preparing and distributing the DD Form 214. Chapter 2 contains guidance on preparation of the DD Form 214 and states the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. The instructions for item 19 state, in pertinent part, that the mailing address after separation and nearest relative will be provided by the Soldier. The regulation provides no provisions for altering or correcting a DD Form 214 by changing information that changes subsequent to separation.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request that item 19b of his DD Form 214 should be corrected to reflect his current spouse's name and address was carefully considered. However, there is insufficient evidence to support this claim.
2. For historical purposes, the Army has an interest in maintaining the accuracy of its records. The data and information contained in those records should actually reflect the conditions and circumstances that existed at the time the records were created.
3. The evidence of record confirms the applicant was married to his former spouse, the person currently listed in item 19b of his DD Form 214, at the time of his retirement and that he provided the name and address to be entered in item 19. Therefore, given the information was provided by the applicant and correct at the time the DD Form 214 was issued, there are no regulatory provisions that provide for altering or correcting this information based on changes that have occurred subsequently.
4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.
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) AR20090016972
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ABCMR Record of Proceedings (cont) AR20090016972
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