IN THE CASE OF:	  

		BOARD DATE:	  19 July 2012

		DOCKET NUMBER:  AR20120001322 


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 the DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) of her late husband, a former service member (FSM), be corrected to show his last name as "Dxxxx" in lieu of Hxxxxx.

2.  The applicant states that her husband's real father acknowledged parenthood and his last name was legally changed in 2007 by the State of Illinois.  In effect, the FSM died on 7 October 2011 and his DD Form 214 and records need to be corrected to apply for his headstone.

3.  The applicant provides copies of the FSM's:

* 2000 Certification of Birth (2 copies)
* General Educational Development certificate
* DD Form 214
* Honorable Discharge Certificate
* W-2 Wage and Tax Statement
* Form SSA-1099 - Social Security Benefit Statement
* Social Security Cards and State Identification (ID) Card
* Original Death Certificate, Power of Attorney, Marriage Certificate, and the applicant's Certificate of Birth

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers requests and statements to the applicant and provides no additional evidence.
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 FSM's military records show he enlisted in the Regular Army (RA) on 10 March 1958 for 3 years.  

3.  The FSM's record contains:

   a.  DD Form 4 (Enlistment Record - Armed Forces of the United States), Item 1 (Last Name - First Name - Middle Name) shows he enlisted under the  name of "Wxxxxxx Txxxxx Hxxxxx."  Item 37 (Remarks) of this form contains the entry, "Wxxxxxx Txxxxx Dxxxx and Wxxxxxx Txxxxx Hxxxxx are one and the same person."  He placed his initials (TWH) in Item 37 and signed the form using the last name of "Hxxxxx";
   
   b.  DA Form 20 (Enlisted Qualification Record), Item 1 (Name (Last, First, Middle Initial) and Service Number)) showing his last name as "Hxxxxx"; and 
   
   c.  DA Form 24 (Service Record) Name and Service Number section shows his last name as "Hxxxxx."

4.  On 28 February 1961, the FSM was honorably released from active duty and transferred to the U.S. Army Reserve (USAR).  His DD Form 214 shows in Item 1 (Last Name, First Name Middle Name) his last name is listed as "Hxxxxx."

5.  He was honorably discharged from the USAR on 29 February 1964.  His Honorable Discharge Certificate shows his last name as "Hxxxxx."

6.  The applicant provides a copy of a State of Illinois Certificate of Birth issued on 24 October 2000.  This document identifies a male registrant with the same first and middle as the FSM and the last name of "Hxxxxx."  She also provides copies of the FSM's Social Security Cards which shows both last names, "Hxxxxx and Dxxxx."  She further provides his Form SSA-1099 and State ID Card which show his last name as "Dxxxx."

7.  Army Regulation 635-5 (Personnel Separations - Separation Documents) provides instructions for preparation of the DD Form 214.  The regulation states Item 1 would list the last name, first name, and full middle name or names, if any, of the individual being separated.  

DISCUSSION AND CONCLUSIONS:

1.  The FSM's records contain a DD Form 4 which contains the entry "Wxxxxxx Txxxxx Dxxxx and Wxxxxxx Txxxxx Hxxxxx are one and the same person."  The evidence of record shows throughout his period of RA service, at the time of release from active duty, and at the time of discharge from the USAR he used the last name of "Hxxxxx" as evidenced by the available evidence.

2.  The FSM's DD Form 214 reflects the last name as it was entered on his enlistment documents as his preference and under which his military service was performed.

3.  While the applicant desires to have the FSM's last name changed on the 
DD Form 214 is understandable there is no basis for compromising the integrity of the Army's records.  However, since the FSM's enlistment documents show Wxxxxxx Txxxxx Dxxxx and Wxxxxxx Txxxxx Hxxxxx are one and the same person, as a matter of equity, Item 32 (Remarks) of his DD Form 214 should be amended to include the entry "AKA:  Wxxxxxx Txxxxx Dxxxx."  

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 32 of the former service member's DD Form 214 the entry "AKA:  Wxxxxxx Txxxxx Dxxxx."  

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 correcting the former service member's records and DD Form 214 to show his last name as "Dxxxx."



      _______ _   __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)                                         AR20120001322



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ABCMR Record of Proceedings (cont)                                         AR20120001322



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