IN THE CASE OF:
BOARD DATE: 1 March 2012
DOCKET NUMBER: AR20110016975
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 records to show the correct spelling of his last name.
2. The applicant states the correct spelling of his last name is "Swaim"; however, some of his official Army records have his last name as "Swain."
3. The applicant provides a copy of his Certificate of Live 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 DD Form 4 (Enlistment Record - Armed Forces of the United States) shows he enlisted in the Regular Army on 28 October 1964 for a period of 3 years. Item 1 (Last Name - First Name - Middle Name) of this form shows his last name as "Swaim."
3. Headquarters, Department of the Army, Enlisted Personnel Division, Personnel Actions Department, Waiver Branch, letter, subject: Continuation of Disabled Personnel on Active Duty UP [under the provisions of] AR [Army Regulation] 635-40, dated 30 October 1968, shows the applicant's request for retention on active duty was approved. The letter shows the applicant's last name as "Swaim."
4. Special Orders Number 36, issued by Headquarters, Department of the Army, Washington, DC, dated 24 February 1969, released the applicant from active duty on 3 March 1969 based on permanent physical disability and placed him on the Retired List, effective 4 March 1969. The orders show the applicant's name as "Swain."
5. The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he entered active duty on 28 October 1964, he was permanently retired on 3 March 1969 by reason of physical disability, and he was placed on the Retired List. He completed 4 years, 4 months, and 6 days of total active service. Item 1 (Last Name - First Name - Middle Name) shows his last name as "Swain."
6. A DD Form 215 (Correction to DD Form 214), dated 2 July 1971, corrected the applicant's DD Form 214 for the period ending 3 March 1969 to add the Purple Heart to item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized). The applicant's last name on this form is shown as "Swain."
7. The applicant provides a copy of his Ohio Department of Health, Division of Vital Statistics, Certificate of Live Birth that shows his last name "Swaim."
8. Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed policies and procedures regarding separation documents. It also established standardized policy for preparing and distributing the DD Form 214.
a. It states that the purpose of a separation document is to provide the individual with documentary evidence of their military service at the time of separation. Therefore, it is important the information entered thereon is complete and accurate as of that date.
b. Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214. It states that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record and orders. It shows for item 1: enter last name, first name, and full middle name or names, if any.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows that upon entry on active duty in the U.S. Army, the applicant's last name was correctly recorded in his military service record. The evidence of record also shows the applicant's name was correctly recorded in his official military service records, except on the orders and DD Form 214 that were issued based on his retirement from active duty, and on the DD Form 215 that was subsequently issued to correct his DD Form 214.
2. Therefore, it would be appropriate to correct the applicant's record as recommended below.
BOARD VOTE:
____X___ ____X___ ____X___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. amending Special Orders Number 36, issued by Headquarters, Department of the Army, Washington, DC, dated 24 February 1969 to show his last name as "Swaim";
b. deleting from item 1 of his DD Form 214 for the period ending 3 March 1969 the current last name entry and replacing it with the entry "Swaim";
c. voiding the previously-issued DD Form 215, dated 2 July 1971; and
d. issuing him a new DD Form 215 that includes the corrections recommended above, as well as adding the Purple Heart to Item 24 of his
DD Form 214 for the period ending 3 March 1969.
___________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) AR20110016975
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