RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 10 April 2007
DOCKET NUMBER: AR20060014157
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. Gerard W. Schwartz
Acting Director
Ms. Joyce A. Wright
Analyst
The following members, a quorum, were present:
Mr. Kenneth L. Wright
Chairperson
Ms. LaVerne M. Douglas
Member
Ms. Ernestine Fields
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, in effect, correction of item 10 (Date of Birth), of his WD AGO Form 53-55 (Enlisted Record and Report of Separation), to show the entry "29 Jan 26" (29 January 1926), instead of the entry "29 Jun 26" (29 June 1926).
2. The applicant states, in effect, that item 10, of his WD AGO Form 53-55, is incorrect.
3. The applicant provides a copy of his WD AGO Form 53-55 and a copy of a Certified Copy of Birth Transcript in support of his request.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice which occurred on 2 January 1946, the date he was honorably separated from active duty. The application submitted in this case is dated 11 September 2006 but was received for processing on 6 October 2006.
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 limitations 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 applicants failure to timely file.
3. The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973. Records available to the Board were obtained from alternate sources. His WD AGO Form 53-55 shows that he was inducted in the Army of the United States and entered active duty on 25 April 1944. He was trained in military occupational specialty (MOS), 729, as a Pioneer. He was honorably separated from active duty on 2 January 1946, in the rank of "Pfc" (Private First Class).
4. Item 10, of the applicant's WD AGO Form 53-55, shows the entry
"29 Jun 26" (29 June 1926).
5. The applicant provides a copy of a Certified Copy of Birth Transcript, dated 24 June 1953, that was issued by the Clerk of Courts of Davison County, South Dakota, which shows his date of birth as 29 January 1926. This document failed to reveal a raised seal.
DISCUSSION AND CONCLUSIONS:
1. The applicant was inducted and entered active duty in the Army of the United States on 25 April 1944.
2. It is logical to believed that at the time the applicant registered for service, under applicable selective service laws in effect at the time of his registration, he did not have a copy of his birth certificate available; it is believed he relied on and reported what he had been told was his date of birth.
3. The Certified Copy of Birth Transcript, dated 24 June 1953, issued by the Clerk of Courts of Davison County, South Dakota, shows his date of birth as "29 January 1926." This document was issued 7 years, 5 months, and 23 days, after his separation from active duty.
4. The applicant has failed to provide an official statement as to why his date of birth was entered as 29 June 1926 rather than 29 January 1926 on his WD AGO Form 53-55. The copy of his birth transcript does not have a raised seal and; therefore, there is no basis to change item 10 (Date of Birth), of his WD AGO Form 53-55, to show the entry "29 Jan 26."
5. In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
6. Records show the applicant should have discovered the alleged error or injustice now under consideration on 2 January 1946, the date of his separation from active duty. The ABCMR was not established until 2 January 1947. As a result, the time for the applicant to file a request for correction of any error or injustice expired on 1 January 1950. 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
__KLW__ __LD____ __E.F.___ 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.
_____Kenneth Wright___
CHAIRPERSON
INDEX
CASE ID
AR20060014157
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20070410
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19460102
DISCHARGE AUTHORITY
AR 615-365
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
100
2.
3.
4.
5.
6.
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