IN THE CASE OF:	  

		BOARD DATE:	    23 February 2012

		DOCKET NUMBER:  AR20110017846 


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:

	a.  correction of his DD Form 214 (Report of Separation from Active Duty) for the period ending 29 August 1974 to show his first name as Lutha and his date of birth (DOB) as 7 March 1956; and

	b.  correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 17 December 1982 to add his middle name of Lee.

2.  The applicant makes no additional statements.

3.  The applicant provides his DD Forms 214 for the periods ending 29 August 1974 and 17 December 1982.

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 enlisted in the Arizona Army National Guard (AZARNG) on
5 March 1974 for a period of 6 years.  His DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows the first name as Luther and his date of birth as 5 March 1956.  He was ordered to active duty for training (ADT) on
30 April 1974.  He was released from ADT on 29 August 1974 and reverted to the AZARNG.

3.  Item 1 (Last Name, First Name, Middle Name) of the DD Form 214 he was issued at the time shows his first name as Luther.  Item 4 (DOB) shows his DOB as 5 March 1956.  Item 29 (Signature of Person Being Separated) shows a legible signature with the first name as Luther.

4.  He was honorably discharged from the AZARNG on 10 February 1977 for the purpose of enlisting in the U.S. Army Reserve.  The National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) he was issued at the time shows his first name as Luther and his DOB as 5 March 1956.

5.  He enlisted in the U.S. Army Reserve (USAR) on 11 February 1977 under the Delayed Entry Program (DEP) for a period of 6 years.  On 17 February 1977, he was discharged from the USAR DEP and he enlisted in the Regular Army (RA) on 18 February 1977 for a period of 3 years.  His DD Form 4 and DD Form 4c (Enlistment or Reenlistment Agreement (Continuation Sheet) show the first and middle names as Lutha Lee and his DOB as 7 March 1956.

6.  He was honorably discharged on 18 October 1979 for the purpose of immediate reenlistment.  He reenlisted on 19 October 1979 for a period of
3 years.  His DD Form 4 shows the first name as Lutha with no middle name and his DOB as 7 March 1956.  On 17 December 1982, he was honorably discharged at the expiration of his term of service.

7.  Item 1 (Name) of his DD Form 214 for the period ending 17 December 1982 shows his first name as Lutha and no middle name.  Item 5 (DOB) shows his DOB as 7 March 1956.  Item 21 (Signature of Member Being Separated) shows a legible signature with the first name as Lutha and a middle initial of L.

8.  The applicant's birth certificate is not available for review.

9.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part, it states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active service.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's service personnel record shows he served in the AZARNG from 5 March 1974 through 10 February 1977 with a period of ADT from 30 April 1974 through 29 August 1974.  During these periods of service he served under the first name of Luther with a DOB of 5 March 1956.

2.  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 first name on his DD Form 214 for the period ending 29 August 1974, there is not a sufficiently compelling reason for compromising the integrity of the Army’s records at this late date.  Additionally, the applicant's birth certificate is not available for review.  As such, his actual DOB cannot be determined.  Therefore, there is also an insufficient evidentiary basis for amending his DOB on his DD Form 214 for the period ending 29 August 1974.

3.  His service personnel record shows he enlisted in the RA and continuously served from 18 February 1977 to 17 December 1982 under the first and middle names of Lutha Lee.  Since his DD Form 214 for the period ending 17 December 1982 does not show the middle name Lee, it would be appropriate at this time to correct his DD Form 214 for this period of service to show his middle name.

4.  The applicant is advised that a copy of this decisional document 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 name and DOB on his DD Forms 214 and NGB Form 22 in his military record and to satisfy his desire to have his correct name and DOB documented in his OMPF.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding to item 1 of his DD Form 214 for the period ending 17 December 1982 his middle name of Lee.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amending his first name and date of birth on his DD Form 214 for the period ending 29 August 1974.



      ___________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)                                         AR20110017846



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ABCMR Record of Proceedings (cont)                                         AR20110017846



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