IN THE CASE OF:	  

		BOARD DATE:	  22 November 2011

		DOCKET NUMBER:  AR20110010814 


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 his surname and address on all existing military records be changed.

2.  The applicant states he grew-up believing his stepfather had adopted him.  He used the name Charles E. H---- and he enlisted in the Army using it.  Only recently, when he received his birth certificate, did he learn that his name is actually Charles E. E-----.

3.  The applicant provides:

* a National Archives and Records Administration (NA) Form 13038 (Certification of Military Service), dated 28 May 2009
* a 15 May 2010 Special Power of Attorney
* his California Commercial Driver License using the last name of H----
* a Form SSA-1099 – Social Security Benefit Statement for 2010 showing his last name as E----- and a Florida address on Stoner Road
* two letters from the National Personnel Records Center (NPRC), St. Louis, MO, with an address on Dyer Road
* other correspondence showing a Florida address on either Dyer or Stoner Road
* his State of California Standard Certificate of Birth, dated 7 March 1939


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 complete military records are not available for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  His records were destroyed, lost, or seriously damaged in that fire.  However, sufficient documents are available to conduct a fair and impartial review of this case.

4.  A DA Form 13038, issued by the NPRC, dated 28 May 2009, shows the applicant served in the Regular Army from 14 January 1955 to 26 September 1957 under the name Charles E. H----.  He honorably separated in the rank/grade of private first class (PFC)/E-3.

5.  Special Orders Number 188, issued by Headquarters, U.S. Army Transfer Station, Fort Lewis, WA, dated 25 September 1957, show the applicant was honorably discharge by reason of physical disability on 26 September 1957.  

6.  The 15 May 2010 Special Power of Attorney provided by the applicant shows the applicant signed his name as Charles E. (H----) E----- with an address in Florida on Stoner Road.  The Notary Public indicated the applicant produced identification in the form of an inmate wristband.

7.  The Standard Certificate of Birth provided by the applicant shows the full name of child as Charles Edward E-----, the same surname as the father.

8.  The two NPRC letters provided by the applicant show a Florida address on Dyer Road.  His DD Form 149 (Application for Correction of Military Record (ABCMR)) that he submitted, dated 29 March 2010, shows the same Florida address on Dyer Road.


9.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR will decide cases on the evidence of record; it is not an investigative body.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant acknowledges he grew up believing his stepfather had adopted him and he used the surname of H----.  Only recently, when he received his birth certificate, did he learn that his surname is actually E-----.

2.  Although the applicant's surname may be E-----, the available records show he served in the Army under the surname of H---- as evidenced by the discharge orders and NA Form 13038 of record.

3.  Notwithstanding the notarized power of attorney, the Notary Public only asserted that the individual executing the power of attorney represented himself to be one in the same Charles E. H---- and Charles E. E-----, as verified by an inmate wristband.

4.  The ABCMR decides each case on the evidence of record and presumes regularity when the preponderance of the evidence demonstrates there is no error or injustice.  The applicant has failed to provide such convincing evidence to warrant his requested relief.

5.  For historical purposes, the Army has an interest in maintaining the integrity of its existing 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.  There is insufficient compelling reason for compromising the integrity of the former Soldier's records at this late date.

6.  The applicant is advised that a copy of this decisional document, which confirms his correct name and current address, will be filed in his reconstructed Official Military Personnel File (OMPF).  This should serve to clarify any questions or confusion in regard to the difference in the name and address recorded in his military record and to satisfy his desire to have his correct name and current address documented in his OMPF.


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)                                         AR20110010814



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ABCMR Record of Proceedings (cont)                                         AR20110010814



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