IN THE CASE OF:	

		BOARD DATE:	      25 JUNE 2009

		DOCKET NUMBER:  AR20090001265 


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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) be amended to show her correct last name and her initial period of enlistment.

2.  The applicant states that she received orders reflecting her new last name; however, the incorrect last name is reflected on her DD Form 214.  She also states that the date of her initial period of enlistment is not reflected on her DD Form 214 and that she never received a DD Form 214 to reflect her initial period of service in the Regular Army (RA).

3.  The applicant provides in support of her application, a copy of her DD Form 214; a copy of a Personnel Action (DA Form 4187) dated 9 November 1981; a copy of reassignment orders dated 27 May 1981; a copy of Orders 120-26 dated 26 May 1981; and a copy of her Honorable Discharge Certificate dated 22 May 1981.

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.  On 12 September 1978, the applicant enlisted in the RA in San Juan, Puerto Rico, for 3 years, in the pay grade of E-3.  At the time of her enlistment, she enlisted using the last name of Maldonado.  She successfully completed her training as a material supply specialist.

3.  After completing 2 years, 8 months and 10 days of net active service, the applicant was honorably discharged from the RA on 21 May 1981, for the purpose of immediate reenlistment.  Accordingly, she reenlisted in the Army for 3 years on 22 May 1981.

4.  On 9 November 1981, a DA Form 4187 was submitted to the personnel officer, by the applicant’s commanding officer, stating that the applicant had married and requesting that her name of record be changed to reflect her married name.  The applicant signed the request on 3 November 1981 and it is noted that the name reflected on the DA Form 4187 as her last name is the middle name that she used at the time of her enlistment in the RA.  The last name that she used at the time of her enlistment (Maldonado) is not reflected on the DA Form 4187.  

5.  On 25 November 1981, a DA Form 4187 was submitted to the personnel officer, by the applicant’s commanding officer, requesting that the applicant’s name of record be changed to reflect her married last name and the first and middle names that she used at the time of her enlistment.  The applicant signed the DA Form 4187 on 25 November 1981.

6.  After completing 1 year and 23 days of net active service this period, the applicant was honorably released from active duty (REFRAD) on 14 June 1982, under the provisions of Army Regulation 635-200, paragraph 8-15b, due to pregnancy. 

7.  The DD Form 214 that the applicant was furnished at the time of her REFRAD shows that she had 2 years 8 months and 23 days of total prior active service and it also reflects her married and maiden name as a hyphenated last name and her first and middle name.




8.  On 14 June 1982, a DD Form 215 (Correction of DD Form 214, Certificate of Release or Discharge from Active Duty) was prepared to reflect the applicant’s married last name, her first name and her middle name as requested on the DA Form 4187 dated 25 October 1981.  The available records show that the applicant was forwarded a copy of the DD Form 215 on 7 December 1982.

9.  Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214.  The regulation in effect at the time provided, in pertinent part, that a DD Form 214 would be prepared for each period of service, to include separations for immediate reenlistment.  It also provided that only awards issued and foreign service performed by the individual during the period covered by the DD Form 214 would be entered and that information would not be entered on subsequent DD Forms 214.  Effective 1 October 1979, that regulation was changed and provided that a DD Form 214 would be issued for periods of immediate reenlistment.  A break in service of more than 24 hours is required for a DD Form 214 to be issued.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her DD Form 214 should be amended to show her correct last name and her initial period of enlistment.

2.  Her contentions have been noted.  However, a DD Form 215 was prepared on 14 June 1982 to reflect the last name to which she is referring.  The records show that she was forwarded a copy of the DD Form 215 on 7 December 1982 and inasmuch as the DD Form 215 making this correction already exists, there is no basis for grant this portion of the applicant’s request.

3.  In regard to the applicant’s request that her DD Form 214 be corrected to reflect her initial period of enlistment, her DD Form 214 already reflects this information.  Her DD Form 214 shows that she had 2 years, 8 months and 10 days of total prior active service and in accordance with the applicable regulation a break in service of more than 24 hours is required for a DD Form 214 to be issued.  She was discharged from the RA on 21 May 1981 and she immediately reenlisted on 22 May 1981.  Therefore, she is not entitled to be furnished a separate DD Form 214 to reflect her initial period of enlistment.

4.  In order to justify correction of a military record the applicant must show 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.

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.




      _______ _   XXX_______   ___
               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)                                         AR20090001265



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ABCMR Record of Proceedings (cont)                                         AR20090001265



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