RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 June 2006
      DOCKET NUMBER:  AR20050012822


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Richard G. Sayre              |     |Member               |
|     |Mr. Chester A. Damian             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his records be corrected to show his date
of birth as 15 April 1939, not 5 December 1938.

2.  The applicant states that he was underage and that his mother
misrepresented his age further to allow him to enter the Army at an earlier
age.

3.  The applicant provides a certification of birth, a DD Form 214 (Report
of Transfer or Discharge), a statement from the local sheriff, a DD Form
217A (Certificate of Service), and two photographs.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 2 February 1959.  The application submitted in this case is
dated 17 August 2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s military records are 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 the
applicant’s records were lost or destroyed in that fire.

4.  The available records show the applicant entered active duty with an
eighth grade education on 25 January 1956.  He was honorably released from
active duty on 2 February 1959 having served 3 years and 9 days.

5.  The 2 February 1959 DD Form 214 lists a date of birth of 5 December
1938.

6.  An 11 September 1990 Wayne County, West Virginia Birth Certificate
shows that a P____ E____ T____ (the same name as that of the applicant) was
born to W. E. T____ and B___ W____ on 15 April 1939.  The birth was
recorded in the official records on 26 June 1939.

7.  In a phone conversation with the applicant he indicated that most of
his records were destroyed in a flood.  He stated that his mother had
misrepresented his age when she signed a parental consent thereby allowing
him to enlist at 16 years and 9 months of age.  He further stated that he
was making this request to have the date corrected at the recommendation of
the Department of Veterans Affairs (VA) to avoid future problems with
benefits.

8.  The DD Form 217A shows the applicant served on active duty from
25 January 1956 to 2 February 1959.

9.  The local sheriff provides a statement indicating he has known the
applicant for several years and the applicant is the person he says he is.

DISCUSSION AND CONCLUSIONS:

1.  Since documents related to his enlistment are not available it cannot
be determined what date of birth was listed on those documents or what
documentation was used to verify his age at the time of his enlistment.

2.  It is recognized that if the applicant were born on 15 April 1939 he
would not have been eligible to enlist even with parental consent.  While
this supports the applicant's contention that his mother may have
misrepresented his true date of birth there is no verifiable evidence that
this occurred.

3.  For historical purposes, the Army has an interest in maintaining the
accuracy of its records.  The information contained therein should reflect
the conditions and circumstances that existed at the time the records were
created and under which the military service was performed.  Therefore,
without documentation that verifies that the applicant is the same person
as listed on the birth certificate provided.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 February 1959; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 1 February 1962.  The applicant did not file within
the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__ LDS__  _RDS___  _CAD____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _    _Linda D. Simmons____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050012822                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060629                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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