ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 July 2020 DOCKET NUMBER: AR20200000048 APPLICANT REQUESTS: his mustering out pay and correction of his records, to show Current legal name instead of the contested name. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * a self-authored statement * National Archives (NA) Form 13038 (Certification of Military Service) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * a letter, dated 4 November 1988 * 2 Affidavits Regarding Change of Name * Decree Changing Name FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant's complete military record is not available to the Board for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed that his records were lost or destroyed in that fire. However, there were sufficient documents on file for the Board to conduct a fair and impartial review of this case. This case is being considered primarily using his DD Form 214, NA Form 13038, and documents provided by the National Personnel Records Center. 3. The applicant states he never received his mustering out pay for each month he served. He would like to receive said payment. 4. The applicant was inducted into the Army of the United States on 22 November 1954, and he was honorably released from active duty on 8 November 1956. All of the documents in his military record reflect the contested name. These documents include, but are not limited to the following documents: * NA Form 13038 * DD Form 214 * Standard Form 88 (Report of Medical Examination) 5. The applicant provides a Decree Changing Name from a State Superior Court, dated 4 November 1988, which changed his name from the contested name to his current legal name. 6. The available military records do not record his current legal name. 7. There is no evidence in the applicant’s available records to support or refute his claim of nonpayment of his mustering out pay. 8. 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. Item 1 (Last Name - First Name - Middle Name) states to transcribe the name at the time of separation from applicable documents. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that some relief was warranted. The Army has an interest in maintaining the integrity of its records for historical purposes. However, the Board agreed the name change may prevent disruptions in crucial services the applicant may require at this time of his life as a sufficient reason to grant the requested relief. The Board determined there is insufficient evidence that shows the applicant is authorized any form of pay at this time. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is 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: a. voiding DD Form 214 for the period ending 8 November 1956, and issuing a new DD Form 214, showing the name as shown on the court-ordered name change. b. No entries should be made in block 18 of the reissued DD Form 214 listing a previous name or indicating the DD Form 214 was administratively reissued. 2. The Board further determined 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 providing retroactive pay. 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. REFERENCES: 1. Title 10, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-5 (Separation Documents), then in effect, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It states 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. Item 1 states to transcribe the name at the time of separation from applicable documents. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 4. Title 31 U. S. Code (USC), section 3702, also known as the barring statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U. S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. A change to this statue is not within the purview of this Board. //NOTHING FOLLOWS//