IN THE CASE OF:	  

		BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20100026828 


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 DD Form 214 (Report of Separation from Active Duty) for the period ending 19 January 1975 and his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending
3 May 1982 to show his last name as "Toro Perez" instead of "Toro."  Additionally, he requests correction of his year of birth on his DD Form 214 for the period ending 3 May 1982 to show "1954" instead of "1955."

2.  He states that since his enlistment, his last name and year of birth have been incorrect.

3.  He provides his DD Forms 214 and Certificate of Birth.

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 record for his service in the ARNG was not available to the ABCMR for review; however, his record contains a DA Form 214 for the period ending 19 January 1975 that shows he entered active duty for training as a member of the New York Army National Guard (NYARNG) on 20 September 1974.  It shows he was subsequently released from active duty for training and returned to the control of The Adjutant General of New York to complete his remaining service obligation.  It further shows his last name as "Toro" and his date of birth as "NA" [not applicable].

3.  He remained in the NYARNG until his discharge on 2 April 1980.  On 3 April 1980 he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) for a period of 6 years.  On 27 May 1980 he was discharged from the USAR DEP and on 28 May 1980 he enlisted in the Regular Army (RA) for a period of 3 years.  He was honorably retired on 3 May 1982 by reason of temporary physical disability.

4.  Item 1 (Name) of his DD Form 214 for this period of service shows his last name as "Toro" and the year of birth as "1954."

5.  His military personnel records jacket (MPRJ) shows his last name as "Toro" and year of birth as "1954."  Additionally, the following documents and all other documents contained in his MPRJ requiring a signature show he signed the documents using his last name as "Toro."

* DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 3 April 1980
* DA Form 873 (Certificate of Clearance and/or Security Determination), dated 9 June 1981
* DA Form 428 (Application for Identification Card), dated 19 November 1981
* DA Form 4240 (Data for Payment of Retired Army Personnel), dated 
9 April 1982

6.  All orders contained in his MPRJ show his last name as "Toro."  

7.  He provided a copy of his Certificate of Birth that shows his birth last name as "Toro Perez" and his year of birth as "1955."

DISCUSSION AND CONCLUSIONS:

1.  There are no records available to verify the name the applicant used during his service in the ARNG.  However, the fact that his last name is listed as "Toro" on his DD Form 214 for the period ending 19 January 1975, which he signed, is an indication that he used this name throughout his ARNG service.

2.  Evidence of record shows that he served in both the ARNG and the RA under the last name of "Toro."  Additionally, the documents contained in his available records show his year of birth as "1954."  Therefore, his last name listed on his DD Forms 214 is correct as constituted.  Likewise, his year of birth listed on his DD Form 214 for the period ending 3 May 1982 is also correct as constituted.

3.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The data and information 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, there is a reluctance to recommend that those records be changed.  While it is understandable the applicant desires to now record his correct last name and year of birth in his military records, there is not a sufficiently compelling reason for compromising the integrity of the Army’s records at this late date.  

4.  The applicant is advised that a copy of this decisional document along with his application and the supporting evidence he provided, which confirms his correct last name and year of birth, will be filed in his Official Military Personnel File (OMPF).  This should serve to clarify any questions or confusion in regard to the difference in the last name and year of birth recorded in his military record and to satisfy his desire to have his correct last name and year of birth documented in his OMPF.

5.  In view of the foregoing, there is no basis for granting his requested relief.

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)                                         AR20100026828



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ABCMR Record of Proceedings (cont)                                         AR20100026828



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