IN THE CASE OF:	  

		BOARD DATE:	  25 June 2013

		DOCKET NUMBER:  AR20120020690 


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 (Certificate of Release or Discharge from Active Duty) for the period ending 22 October 1985 as follows:

* item 1 (Name) – to show his name as "L____ M____ L____, Jr."
* item 18 (Remarks) – to delete the statement "AMOUNT OF DISABILITY/READJUSTMENT PAY:  $13,452.60"
* item 28 (Narrative Reason for Separation) – to show "PHYSICAL DISABILITY" vice "PHYSICAL DISABILITY WITH SEVERANCE PAY"

2.  The applicant states the name listed on his DD Form 214 is not his birth name.  He also states the amount of his disability pay is confidential and is not needed by anyone who views his DD Form 214.  He also states reference to severance pay should be excluded from item 28 for the same reason.

3.  The applicant provides his DD Form 214, birth certificate, DD Form 1584 (National Agency Check (NAC) Request), a Defense Investigative Service Form 1 (Report of NAC/Entrance NAC), and two social security cards.

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 records show he served in the Regular Army (RA) from 14 September 1977 to 12 September 1980.  He was honorably released from active duty on 12 September 1980 and transferred to the U.S. Army Reserve (USAR).

3.  Item 1 of his DD Form 214 for the period ending 12 September 1980 shows his name as "W____, L____ M____."  He authenticated this form by placing his signature in the appropriate block using this name.

4.  He enlisted in the USAR Delayed Entry Program (DEP) on 23 July 1981.  His DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows his name as "W____, L____ M____."  He authenticated this form by placing his signature in the appropriate block using this name.  He was discharged from the DEP on 3 August 1981 for immediate enlistment in the RA.  He enlisted in RA on 4 August 1981.  He authenticated this same DD Form 4 by placing his signature in the appropriate block using this name.

5.  The DA Form 2-1 (Personnel Qualification Record – Part II) that was created at the time he entered active duty shows his name as "W____, L____ M____."  He reviewed this form and authenticated it by placing his signature in the appropriate block using this name on 5 August 1981 and initialing the form on 30 July 1985.

6.  His record contains numerous personnel, finance, medical, and legal documents that all show his last name as "W____, L____ M____" or "W____, L____ M."

7.  On 25 March 1983, the applicant extended his enlistment for a period of 6 months.  His DA Form 3340 (Request for RA Reenlistment or Extension) shows his name as "W____, L____ M."  He authenticated this form by placing his signature in the appropriate block on 25 March 1983 using this name.

8.  On 11 March 1985, he was evaluated at the 97th General Hospital, Germany, by a medical evaluation board (MEB) and was referred to a physical evaluation board (PEB).

9.  A PEB subsequently convened and determined the applicant was physically unfit for further military service due to chronic right knee pain.  The PEB recommended his separation with severance pay.  The PEB proceedings are not available for review with this case.

10.  He was honorably discharged on 22 October 1985.  His DD Form 214 for this period of service shows he discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 4-24e(3).

11.  This DD Form 214 also shows in:

* item 1 – "W____, L____ M____"
* item 18 – "AMOUNT OF DISABILITY/READJUSTMENT PAY:  $13,452.60"
* item 24 (Separation Code) – "JFL"
* item 28 – "PHYSICAL DISABILITY WITH SEVERANCE PAY"

12.  The applicant authenticated this form by placing his signature in the appropriate block using the name "L____ M. W____."

13.  The applicant provides a copy of his birth certificate which shows his name as "L____ M____ L____ Second."

14.  The applicant provides copies of two social security cards.  One undated card shows his name as "L____ M. W____."  The second card, dated 9 April 2009, shows his name as "L____ M____ L____ Jr."

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states MEB's/PEB's are convened to document a Soldier's medical status and duty limitations.  A decision is made as to the Soldier's medical qualification for retention.

16.  Army Regulation 635-200 governs the separation of enlisted members and states Soldiers found to be medically unfit for further service will be entitled to severance pay based on the number of years of their service.

17.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It stated the SPD code of "JFL" was the appropriate code to assign to Soldiers being released from active duty with severance pay due to a physical disability and to enter "physical disability with severance pay" as the corresponding narrative reason for separation.

18.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for the preparation of the DD Form 214.  It stated to enter the amount of disability severance/readjustment pay, if any, in item 18 when an enlisted person was involuntarily separated for disability and to enter the narrative reason for separation in item 28.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant's name was recorded as "L____ M____ W____" on the DD Form 214 he received for his period of service ending 12 September 1980.  This is the same name he used when he enlisted in the USAR on 23 July 1981 and in the RA on 4 August 1981.  This name is consistent with the name recorded on various documents throughout both periods of his active duty service.  He authenticated many documents by placing his signature in the appropriate block indicating this name was correct.  He did not use the name he now claims is correct during either period of his military service.

2.  The Army has an interest in maintaining the accuracy of its records for historical purposes.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.  In the absence of compelling information to the contrary, there is no basis for changing the applicant's last name in this case.

3.  With respect to deleting the amount of severance pay from his DD Form 214, the governing regulation directed the amount of severance pay received be listed in item 18 of the DD Form 214.  His DD Form 214 correctly reflects his severance pay; therefore, he is not entitled to this portion of the requested relief.

4.  With respect to amending the reason for his separation, the applicant was separated by reason of "physical disability with severance pay" which is correctly shown on his DD Form 214.  This is the only valid reason for separation for Soldiers being separated under the provisions of Army Regulation 635-40 for being physically unfit for further military service.  Therefore, he is not entitled to this portion of the 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 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)                                         AR20120020690



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ABCMR Record of Proceedings (cont)                                         AR20120020690



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