IN THE CASE OF:	  

		BOARD DATE:	  28 October 2010

		DOCKET NUMBER:  AR20100011298 


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 the first name recorded in his military records be corrected.  He also requests correction of the service number (SN) that is shown on his discharge documents.

2.  The applicant states his birth certificate shows his first name as "Fernando"; however, his military records incorrectly show his first name as "Ferdinand."  He also states that his SN was "-- 032 ---"; however, the SN shown on his discharge documents is "-- 034 ---."

3.  The applicant provides copies of his DD Form 214 (Report of Separation from the Armed Forces of the United States), National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service in the Army National Guard of the United States [ARNGUS] and the Army National Guard of Wyoming [WYARNG]), Honorable Discharge Certificate, Certificate of Eligibility, Delayed Certificate of Birth, Certificate of Baptism, Social Security Card, and Motor Vehicle Record.

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 service records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, the applicant's separation documents (i.e., DD Form 214 and NGB Form 22) provide sufficient documentary evidence for the Board to conduct a fair and impartial review of this case.

3.  The State Adjutant General is responsible for the preparation of the NGB Form 22 upon separation of personnel from the Army National Guard of that State.  Thus, the ABCMR has no jurisdiction to grant the requested relief pertaining to the applicant's NGB Form 22 and Honorable Discharge Certificate.  However, this in no way affects his right to submit a request to the Wyoming State Adjutant General to pursue correction of his WYARNG records.  This issue will not be discussed further in this Record of Proceedings.

4.  The applicant enlisted in the ARNGUS and WYARNG for a period of 3 years on 15 September 1949.  His date of birth is -- September 193-.

5.  In support of his application, the applicant provides copies of the following documents.

   a.  A DD Form 214 that shows he entered active duty on 11 September 1950, he was honorably released from active duty on 16 August 1952, and transferred to the ARNGUS, 5th Army Area.  At the time he had completed 1 year, 
11 months, and 6 days of net service this period; 11 months and 26 days of other service; and 2 years, 11 months, and 2 days of total net service for pay.

       (1)  Item 1 (Last Name - First Name - Middle Name) shows the entry "T-----FERDINAND."

       (2)  Item 2 (Service Number) shows the entry "NG-- 032 ---."

       (3)  Item 48 (Signature) shows he signed the document "Ferdinand T------."

   b.  An NGB Form 22 that shows he enlisted in the ARNGUS and WYARNG for a period of 3 years on 15 September 1949 and he was honorably discharged on 14 September 1952.  At the time he had completed 3 years of total service for pay purposes.

       (1)  Item 1 (Name - Last, first, middle initial) shows the entry "T----- Ferdinand (NMI) [No Middle Initial]."

       (2)  Item 2 (Service Number) shows the entry "--034---."
   
       (3)  Item 48 (Signature) shows he signed the document "Ferdinand T------."

   c.  An Honorable Discharge Certificate that shows he was honorably discharged from the ARNGUS and WYARNG on 14 September 1952.  The certificate shows the name "T-----, FERDINAND (NMI)" and SN "--034---."

   d.  A Veterans Administration, Certificate of Eligibility for Loan Guaranty Benefits, dated 29 April 1988, that shows the name "Ferdinand T-----" and
SN "-- 032 ---."

   e.  State of New Mexico, Delayed Certificate of Birth, issued on 13 October 1970, that shows the full name of the child as "FERNANDO A---- T-----" and that he was born on -- September 193-.  The Delayed Certificate of Birth was issued based on evidence that consisted of an Affidavit [sworn by the applicant's mother on 5 October 1970], a Certificate of Baptism (to verify facts), and the applicant's DD Form 214 (to verify his date and place of birth).

   f.  A Certificate of Baptism that shows "Fernando A---- T-----" was born on
-- September 193- and Baptized according to the Rite of the Roman Catholic Church on -- September 193-.  It also shows the certificate was issued on
13 October 1944.

   g.  A Social Security Card that shows the name "FERNANDO A----- T-----."

   h.  A State of Colorado, Motor Vehicle Record, dated 25 January 2010, that shows the name "FERNANDO A----- T-----."

6.  Service Regulations Number 615-360-1 (Discharge Procedures and Preparation of Separation Forms), in effect at the time of the applicant's separation from active duty, prescribed the discharge procedures and separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also established standardized policy for preparing and distributing the DD Form 214.

   a.  The instructions for item 1 state enter the last name, first name, and full middle name or names, if any.  If the separatee has only a middle initial, the initial will be entered.
   b.  The instructions for item 2 state enter enlisted person's service number together with the authorized prefix (e.g., NG for National Guard).

7.  National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) prescribes policies and procedures regarding National Guard Bureau separation documents.  It also establishes standardized policy for preparing and distributing the NGB Form 22.  It provides that the State Adjutant General is responsible for the preparation of the NGB Form 22 upon separation of personnel from the Army National Guard of that State.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military service records should be corrected to show his first name is Fernando.  He also contends that the SN on his discharge documents should be corrected.

2.  The evidence of record shows the applicant served in the ARNGUS and WYARNG, and on active duty in the Army, under the name "FERDINAND T-----" and his SN was "-- 032 ---."

3.  The applicant's DD Form 214 issued at the time of his separation from active duty on 16 August 1952 correctly shows the applicant's SN and the name under which he served on active duty in the Army.  In addition, the applicant signed the document with a signature matching that of the name typed in item
1 of the DD Form 214.

4.  The evidence of record shows that, subsequent to the period of military service under review, a Delayed Certificate of Birth was issued showing the applicant's name is "FERNANDO A----- T-----."  In addition, it is noted that the applicant's DD Form 214, showing the name "Ferdinand T-----," was used to verify his date and place of birth.

5.  Considering all the evidence and information presented by the applicant, together with the evidence of record, applicable law, and regulations, it is concluded that the documents provided by the applicant are insufficient to warrant a change to the name recorded in his military service records and on his DD Form 214.  Therefore, the applicant is not entitled to correction of his
DD Form 214 in this case.

6.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  Accordingly, the information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  In this regard, the evidence of record shows that the applicant's military service records reflect the correct name (at the time) under which military service was performed.  Therefore, in the absence of a showing of material error or injustice, the applicant's military service records should not be changed.  However, as a matter of record, a copy of this Record of Proceedings will be filed in the applicant's military records showing his name was changed based on a State of New Mexico, Delayed Certificate of Birth, issued subsequent to his separation from the U.S. Army.

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)                                         AR20100011298



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ABCMR Record of Proceedings (cont)                                         AR20100011298



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