BOARD DATE: 30 August 2016 DOCKET NUMBER: AR20150011660 BOARD VOTE: ___x______ __x_____ __x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 30 August 2016 DOCKET NUMBER: AR20150011660 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR2001064061, dated 25 July 2002. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by changing his DD Form 214 to reflect his name as C____ J____ R____ and social security number as 0__-4_-4___. __________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. BOARD DATE: 30 August 2016 DOCKET NUMBER: AR20150011660 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 reconsideration of his prior request for correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect his name as C____ J____ R____ and social security number as 0__-4_-4___. 2. The applicant states: * he enlisted in the U.S. Army using his brother's name, and his brother's social security number * his name is actually * the real did not enlist in the U.S. Army * he continues to receive Department of Veterans Affairs (VA) benefits in his brother's name * a hearing was held on 18 August 1975 and concluded the records of his fraudulent activity should be corrected to reflect his true identity * his records are unjust because his brother, is receiving medical bills from the VA hospital because he continues to use his brother's name in order to receive his veterans' benefits 3. The applicant provides: * VA letter to the Department of the Army, dated 11 December 1974 * Chief, Disability Section, Retirement Branch, memorandum, dated 18 August 1975 * Chief, Military Personnel Law Team, Administrative Law Division, memorandum, dated 17 September 1975 * VA letter requesting a field examination, dated 20 May 1981 * VA Form 27-3537b (Report of Field Examination), dated 14 July 1981 * VA Office of the Inspector General Criminal Investigations Division memorandum of interview, dated 22 May 2009 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2001064061 on 25 July 2002. 2. The applicant's contention that a hearing held on 18 August 1975 concluded that the records of his fraudulent activity should be corrected to reflect his true identity is a new argument and thus warrants consideration by the board at this time. 3. He enlisted in the Regular Army on 2 November 1972. Item 1 (Service Number/SSN) of his DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows his SSN as . Item 5 (Last Name, First Name, Middle Name) of his DD Form 4 shows his name as R____, H____ M, which was lined through with the complete name R____, H____ M____ typed above it. He initially signed the form as H____ M. R____, but the middle initial M has since been stricken and the full middle name M____ written in. 4. The DA Form 2496 (Disposition Form), dated 7 November 1972, shows he requested amendment of his DD Form 4 to show his full name (last name first) as instead of . 5. Headquarters, U.S. Army Reception Station, Fort Ord, CA, Special Orders Number 225, dated 13 November 1972, show his name was changed on his DD Form 4 as requested to reflect the full middle name M____ in lieu of the middle initial M. There is no other evidence in his military records of a further request to change his name to C____ J____ R____ and there is no evidence he ever requested to change his SSN at the time of his enlistment or during his service. 6. His DA Form 20 (Enlisted Qualification Record) shows he was assigned as a trainee at Fort Ord, CA, for basic combat training effective 13 November 1972 and was reassigned as a patient to the Medical Holding Company, U.S. Army Medical Department Activity, Fort Ord, CA, effective 2 March 1973. On 10 March 1973, he was reassigned as a patient to the Medical Holding Company, Womack Army Hospital, Fort Bragg, NC. 7. Womack Army Hospital Specialized Treatment Center memorandum, dated 1 March 1974, subject: Election of Permanent Change of Station Home as Authorized in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), states: a. was an inpatient at the Womack Army Hospital Specialized Treatment Center and not in need of active bedside medical treatment. b. A physical evaluation board (PEB) convened at Fort Gordon, GA, found this individual to be a candidate for medical discharge and the Office of the Adjutant General was in the process of completing the discharge. While awaiting completion of the PEB, the applicant elected a permanent change of station to his home of record. 8. In April 1974, a line-of-duty investigation was undertaken at Fort Ord, CA, to investigate the applicant's injury. As part of the investigation, the applicant's former first sergeant during training at Fort Ord, CA, was interviewed. The DA Form 2823 (Sworn Statement), dated 10 April 1974, shows First Sergeant P____ J____ stated: a. He was assigned as the first sergeant of the applicant's company during basic combat training at Fort Ord, CA, from July 1972 through 17 January 1973. He was present for duty during the period of time the applicant states he was injured on two separate occasions. b. Due to the elapsed time, he could not affix specific dates, but he does recall an incident involving the applicant reporting to sick call claiming to have hurt himself on the horizontal ladder. As he recalls, the applicant returned to duty with no reportable injury or training time lost. c. In December 1972, the applicant, along with all the other trainees in the company, were granted leave for the Christmas and New Year holiday season. The applicant was twice granted an extension of leave per telephonic request from him stating he was under the care of a civilian doctor who advised against traveling due to illness. The applicant called a third time to request leave extension. The third request was denied and he was advised to return to duty unless he was admitted to the hospital. d. The applicant arrived at Monterey Peninsula Airport on or about 16 January 1973. A call from military personnel at the airport reported the applicant was unable to make it to Fort Ord, so an ambulance was dispatched to transport him to the hospital. e. On 17 January 1973, he was transferred from the applicant's basic combat training company and had no knowledge of the applicant since that date. To his knowledge, no accident report was ever filed because the applicant was admitted to the hospital due to claimed illness and not as the result of any accident. 9. The DD Form 261 (Report of Investigation), dated 11 April 1974, shows: a. The applicant claims he fell off the company horizontal ladder during a company party at Fort Ord, CA, on 12 December 1972. b. His medical diagnosis was discitis. c. The injury was not the result of intentional misconduct or neglect and was found to be in the line of duty. d. The investigating officer stated the circumstances surrounding this case were very vague because of the time that elapsed. Only one witness was still on Fort Ord who remembered the accident and that was First Sergeant J____, who he found to be a very credible witness. First Sergeant J____ pointed out that the applicant had gone to sick call on 12 December 1972, but his ailment was diagnosed only as a muscle spasm. While on Christmas leave, he may have incurred another injury, yet it was impossible to verify this. There was a strong likelihood that the applicant incurred discitis from falling off the horizontal ladder. The investigating officer found no intentional misconduct or any willful negligence. His finding was, therefore, in the line of duty. 10. U.S. Army Military Personnel Center Letter Orders Number D 4-497, dated 29 April 1974, relieved the applicant from duty and placed him on the Temporary Disability Retired List (TDRL) effective 13 May 1974 due to a determination of unfitness by the PEB. His percentage of disability was rated as 100 percent. 11. His DD Form 214 (Report of Separation from Active Duty) shows he was honorably separated due to temporary medical retirement on 13 May 1974. His net active service was 1 year, 6 months, and 12 days. 12. All contemporaneous documents in his military records consistently show his name as and his SSN as . The name and SSN are not recorded on any documents in his military records at the time of his Army service. 13. A letter from the VA Regional Office, Winston-Salem, NC, dated 11 December 1974, states: a. Mr. (who served as ) filed a claim for VA benefits and their office needs to learn whether his period of active service from 2 November 1972 through 13 May 1974 will be voided by the Army. b. Information acquired by their chief attorney indicates the Federal Bureau of Investigation (FBI) investigated the matter of enlistment in the service using the name, birth date, and SSN of his brother . was reportedly on probation from a center for armed robbery when he enlisted and the officers were trying to locate him. Apparently he was found after discharge, jailed, and taken back to the New York court for appropriate disposition. c. It is understood that the real never entered military service and was residing in the New York area. The FBI furnished a report to the Army Finance Center for the purpose of reviewing the discharge. d. They requested notification of whether the enlistment of is voided because his enlistment on 2 November 1972 was prohibited by statute. 14. A TDRL Summary Sheet, dated 22 July 1975, shows individuals at the Disability Section, Retirement Branch, U.S. Army Military Personnel Center, were to call a representative at the VA once a determination was made regarding the type of discharge would receive. Their office had received a letter from the VA stating his enlistment was found to be fraudulent and requested advice as to whether it would be voided. Officials from Womack Army Hospital, Fort Bragg, NC, twice corresponded with their office in February and March 1975, stating they would not perform the TDRL examination as they were concerned the brother of the enlistee would show up for the examination. 15. The DA Form 2496 (Disposition Form) from the Chief, Disability Section, Retirement Branch, U.S. Army Military Personnel Center, to the Office of the Judge Advocate General, dated 15 August 1975, subject: Determination of Type of Discharge for Fraudulent Enlistment of , states: a. Private First Class , SSN , was placed on the TDRL effective 14 May 1974 with a disability rating of 100 percent. The 5-year tenure on the TDRL will expire on 13 May 1979. b. His enlistment under the alias of his brother, , was determined to be fraudulent by the FBI within the purview of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-5c. c. Insofar as it has been determined to be a fraudulent enlistment, the Disability Section questions if it would be appropriate to administratively remove him from the TDRL and, if so, what type of discharge would be appropriate, honorable or general. 16. The Chief, Military Personnel Law Team, Administrative Law Division, Office of the Judge Advocate General, responded to the request for determination of type of discharge for fraudulent enlistment of on 17 September 1975. The response states: a. Based on the information contained in the submitted file, it is the opinion of this office that the fraudulent enlistment of is not sufficient grounds to revoke the orders placing him on the TDRL absent a showing that his placement on that list was procured by fraud. b. Because no action was taken by the Government to void this enlistment prior to his retirement for physical disability, the enlistment is valid for all purposes. c. This office is of the further opinion that the records of this member should be corrected to indicate his true identity. 17. The applicant was removed from the TDRL on 1 May 1979 and permanently retired under the name and SSN . The orders permanently retiring him are not in his available records for review. A letter from the VA to the Chief, Disability Section, Retirement Branch, U.S. Army Military Personnel Center, dated 17 December 1979, corroborates that a letter from the Retirement Branch, dated 2 April 1979, informed the VA that was removed from the TDRL and placed on the permanent Retired List. It also states at the time of his enlistment C____ H____ had been on probation for armed robbery and the authorities were trying to locate him, thus his enlistment under the name . Officials from the Defense Finance and Accounting Service have also confirmed SSN has been receiving retired pay since 1974. 18. The VA Form 27-3537b, dated 7 July 1981, shows the VA conducted a field examination in an attempt to determine the identity of the claimant. In so doing, the field examiner interviewed Mr. at his residence in Westbury, NY. Over the course of the interview, the applicant stated he told the recruiter about his criminal record at the time of enlistment in the military and the recruiter asked him multiple questions about his family and his brother H____ R____, who was never in the military. This is where the paperwork confusion began and he enlisted using the name and SSN of his brother, He attempted to correct the error while in the Army. In the meantime, he received Army physical disability retired pay at the rate of 30 percent and was unable to work due to his disability. The field examiner reviewed the applicant's military identification card, which showed his picture with the name of on it. It was the opinion of the field examiner that the party making the claim for VA benefits was probably Mr.  but whose name was listed with the military and continues to be listed as . 19. The VA Office of the Inspector General Criminal Investigations Division memorandum of interview, dated 22 May 2009, shows was interviewed at the VA Medical Center in Tampa, FL, regarding the discrepancy between the name on his driver's license showing and his VA identification card bearing the name . The applicant retold the story of his enlistment in the Army using his brother's name because his brother was denied entry in the service and a mix-up with his name at enlistment ensued which he was unable to correct. He stated he receives both VA service-connected disability pay and Army disability retired pay in the name of his brother, He admitted signing his brother's name when he picked up his prescription drugs and added that his benefits in his brother's name were mailed to his mother's house in Alabama and she forwarded the money to him. REFERENCES: Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214. This regulation stated the purpose of the separation document was to provide the individual with documentary evidence of his or her military service at the time of release from active duty, retirement, or discharge. It was important that information entered on the form was complete and accurate and reflected the conditions as they existed at the time of separation. All available records would be used as a basis for preparation of the DD Form 214. The instructions for item 1 (Last Name, First Name, Middle Name) stated to enter the last name, first name, and full middle name or names, if any. DISCUSSION: 1. The applicant's request for correction of his DD Form 214 to show his name as and social security number as was carefully considered. 2. The applicant fraudulently enlisted in the Regular Army using the name and social security number of his brother, SSN . He claims it was a mix-up he attempted to correct while in the Army but was unable to do. There is no evidence of record indicating he attempted to correct his name at the time of enlistment or while serving in the Army. 3. All documents throughout his military records consistently reflect his name as and SSN as . The name is not recorded on any documents in his military records contemporaneous to his service. 4. A line-of-duty investigation shows he was injured while in training at Fort Ord, CA, which was found to be in the line of duty. In making his determination, the investigating officer took into account statements from the applicant's former first sergeant whom he considered a credible source. The first sergeant recalled the applicant was returned to duty with no reportable injury or training time lost after going to sick call as a result of an injury sustained on the horizontal ladder. Despite his first sergeant's statement, the investigating officer found there was a strong likelihood that the applicant incurred discitis from falling off the horizontal ladder. He could not prove or dispel the applicant further injured himself while on Christmas leave. The investigating officer found no intentional misconduct or any willful negligence and found the injury to have been in the line of duty. Thus, the claimed injury should not be considered fraudulent. 5. Subsequent to the line-of-duty investigation, the applicant was hospitalized and underwent a PEB, after which he was placed on the TDRL with a 100-percent disability rating. 6. After his Army separation and placement on the TDRL, an FBI investigation concluded the applicant's enlistment in the Army was fraudulent due to his use of his brother's name and SSN. At the time of his enlistment, had been on probation for armed robbery and the authorities were trying to locate him. This is likely the reason he fraudulently enlisted using his brother's name and SSN. He was avoiding the authorities and simultaneously unable to enlist using his own identity. 7. Despite the fact that clearly and admittedly enlisted fraudulently using his brother's name and SSN, the Chief, Military Personnel Law Team, Administrative Law Division, Office of the Judge Advocate General, opined on 17 September 1975 that the applicant's fraudulent enlistment was not sufficient grounds to revoke the orders placing him on the TDRL absent showing his placement on that list was fraudulent. Additionally, the opinion further states the applicant's records should be corrected to indicate his true identity. There is no conclusive evidence of record showing his placement on the TDRL was fraudulent. 8. It is unclear why, but his records were not corrected to show his true identity, as recommended in the legal opinion, and he was permanently retired due to disability on 1 May 1979 under the name and SSN 9. In the past, the ABCMR has denied similar applications for name changes on the basis that the DD Form 214 is a historical document that should reflect the record as it existed at the time the DD Form 214 was created. The underlying reasoning has been that a post-service name change does not retroactively create an error on the DD Form 214. This is still true; however, a failure to change the applicant's name and SSN in this case results in perpetuation of known fraud in his continued receipt of the Army disability retirement and VA benefits to which he has been deemed entitled but remain issued under his brother's name and SSN. 10. Notwithstanding valid speculation about further fraudulent activities potentially perpetrated by the applicant beyond his fraudulent enlistment and uncertainty about his brother's willing involvement in the applicant's enlistment fraud, the only verified fraud is his enlistment using his brother's identity and his continued receipt of benefits issued by the Army and the VA in his brother's name. Speculated additional fraudulent activity as reasoning for not changing his name and SSN in his records does not outweigh the actual verifiable fraud perpetuated in continuing to make disability retirement payments in the name of when it is a known fact that he did not enlist in the Army and sustain an injury, but did. Without correcting his military records to show his name as and SSN as , the only avenue available for the applicant to receive the disability payments to which the Army determined he is entitled and continues to pay him, even after knowledge of his fraudulent enlistment, involves continuing to fraudulently assume his brother's identity. //NOTHING FOLLOWS//