BOARD DATE: 2 November 2010 DOCKET NUMBER: AR20100013507 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 (Armed Forces of the United States Report of Transfer or Discharge) to change his date of birth (DOB) from 20 May 1947 to 2 September 1949. He also requests his rank and pay grade be changed from Private (PVT)/E-1 to Specialist Four (SP4)/E-4. 2. The applicant states his rank should be SP4 based on Special Orders (SO) Number 100, Vietnam and his DOB should be 2 September 1949. 3. The applicant provides a copy of SO 100, Headquarters, U.S. Army Support Command Cam Ranh Bay, dated 10 April 1969. 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 was inducted into the Army on 3 July 1967. Item 5 (DOB) of the applicant's DD Form 47 (Record of Induction) shows the entry “20 May 1947.” He signed this form confirming that the information was correct at the time. 3. His records contain a copy of a DD Form 398 (Statement of Personal History) which shows in item 5 (DOB – Day, month, year) the handwritten entry “20 May 1947.” The applicant signed and dated this form on 1 July 1967, confirming that the information contained therein was correct at the time. 4. His records contain a copy of a DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States), dated 5 March 1977, which shows in item 7 (DOB), the entry “20 May 1947.” 5. The applicant’s DD Form 214 for the period ending 24 June 1969 shows the following entries: * Item 5a (Grade, Rate or Rank) PVT (Permanent) * Item 5b (Pay Grade) E-1 * Item 9 (DOB) 20 May 1947 6. The applicant has provided a copy of SO 100, dated 10 April 1969, which reassigned him from Vietnam to Fort Lewis, WA. The standard name line of this order shows him in the rank of SP4 (Temporary). 7. A review of his records show a copy of SO Number 144, dated 24 May 1969, which reduced him from the rank of SP4 to the rank of PVT E-1, effective 16 May 1969 for misconduct. 8. The applicant’s DA Form 20 (Enlisted Qualification Record) indicates in item 33 (Appointments and Reductions) that the applicant was promoted to the rank of SP4 on 18 November 1968; however, the next entry shows he was reduced to the rank of PVT on 16 May 1969, per SO Number 144. DISCUSSION AND CONCLUSIONS: 1. The applicant’s military personnel records consistently show his DOB as 20 May 1947. He authenticated all of these documents confirming his DOB to be correct. His records are void of any documentation which shows his DOB as 2 September 1949 and he has not provided sufficient evidence which shows this date. In the absence of evidence to the contrary, there is insufficient evidence to change his DOB to 2 September 1949. 3. His records contain a copy of SO Number 144 which reduced his rank from SP4 to PVT on 16 May 1969 by reason of misconduct. As a result of this action, the entry of PVT/E-1 on his DD Form 214 is correct as shown. 4. In view of the foregoing, the applicant is not entitled to 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 that 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) AR20100013507 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100013507 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1