RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  16 August 2007
	DOCKET NUMBER:  AR20070003015 


	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.


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. William Blakely

Chairperson

Mr. William D. Powers

Member

Mr. Donald L. Lewy

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 his military service records to show his correct Race and date of birth.  He also requests, in effect, correction of the service number and discharge date recorded on his discharge document.

2.  The applicant states, in effect, that the Race and date of birth that are recorded in his military service records are incorrect.  The applicant adds, in effect, that his Race is Black, not Caucasian and that he was born on 7 February 1929, not 8 February 1930.  The applicant further states, in effect, that the discharge date that is recorded on his discharge document is actually his entry date and that his service number should read “US 53 033 ###.”

3.  The applicant provides copies of a County Superintendent of Education, Marengo County, Linden, Alabama, certified letter, notarized on 4 March 1992;
a DD Form 2 (Armed Forces of the United States Identification Card), issued
15 November 1952; DA Form 137 (Installation Clearance Certificate), dated
8 November 1952; Headquarters, 6th Armored Division and Fort Leonard Wood, Missouri, ALWAG-M 201 Roster #43, dated 5 November 1952, subject: Discharge and Release of Enlisted Personnel, 1000 hours, 15 November 1952; DD Form 214 (Report of Separation from the Armed Forces of the United States), with an effective date of 15 November 1952; Veterans Affairs (VA) Claim Number C-17-212-###, dated 5 December 1952; 2 DA Forms 632 (Enlisted Reserve Corps Qualification and Availability Questionnaire), dated 15 November 1952 and 11 July 1953; DA Form 1140 (Army Reserve Qualification and Availability Questionnaire), dated 11 December 1954; DD Form 256A (Honorable Discharge Certificate), dated 16 November 1956; and OMB Form Number
3095-0039, dated 3 December 2005.

4.  On 18 July 2006, the Army Board for Correction of Military Records (ABCMR) notified the applicant that it had requested his military records from the National Personnel Records Center (NPRC) in St. Louis, Missouri, but without success.  This letter also advised the applicant that a fire destroyed approximately
18 million service members’ records at the NPRC in 1973 and it is believed the applicant’s records were lost in that fire.  Consequently, the ABCMR advised the applicant that it is impossible for the Board to make a fair, impartial, and equitable determination in his case.  The ABCMR also advised the applicant that he may reapply at any time if he could submit the necessary supporting documents and/or information.  Accordingly, the ABCMR administratively closed the applicant’s case and his application was returned without action.

5.  On 24 July 2006, the applicant again requested correction of his military service records to show his correct race and date of birth.  The applicant provided  a copy of his Certificate of Birth, State of Alabama, Bureau of Vital Statistics, State Board of Health, File Number 118##, filed on 11 February 1929 and certified by the State Registrar of Health Statistics on 2 September 1992.

6.  On 8 February 2007, the ABCMR advised the applicant that the copy of the Certificate of Birth he provided did not show the complete date of birth (i.e., the copied document did not show the year of birth).  As a result, the applicant was advised that the ABCMR would not consider any further requests without new evidence and his request was returned without action.

7.  On 28 February 2007, the ABCMR acknowledged receipt of correspondence from the applicant, which included a copy of his Certificate of Birth, State of Alabama, Bureau of Vital Statistics, State Board of Health, File Number 118##, filed on 11 February 1929 and certified by the State Registrar of Health Statistics on 22 February 2007.

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 military service records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the NPRC in 1973 and it is believed that the applicant’s records were lost or destroyed in that fire.  Nonetheless, there are sufficient documents in a reconstructed record for the Board to conduct a fair and impartial review of this case.  As a result, this case is being considered using reconstructed records, which primarily consist of the applicant’s DD Form 214 and documents provided by the applicant.  

3.  The applicant’s DD Form 214 shows that he registered with the Selective Service System and was issued Selective Service Number 1 49 30 ##.  This document also shows that he was inducted into the Army and entered active duty on 16 November 1950.  This document also shows that the applicant served in military occupational specialty (MOS) 1729 (Construction Worker).  He was honorably released from active duty on 15 November 1952, after completing
2 years net service for pay, and transferred to the Enlisted Reserve Component.

4.  Item 2 (Service Number) of the applicant’s DD Form 214 contains the entry “US 53 033 ###”; Item 6 (Effective Date of Separation) contains the entry
“15 Nov 52”; Item 10 (Date of Birth) contains the entry “8 Feb 30”; Item 12 (Description - Race) contains the entry “Cau” (i.e., Caucasian); Item 13 (Registered – Selective Service Number) shows an “X” in the “Yes” column and the entry “1 49 30 ##”; Item 15 (Inducted) contains the entry “16 Nov 50”; and Item 19 (Date and Place of Entry into Active Service) contains, in pertinent part, the entry “16 Nov 50.”

5.  In support of his application, the applicant initially provided a copy of a County Superintendent of Education, Marengo County, Linden, Alabama, certified letter, notarized on 4 March 1992, which shows Irving H_____ was born on 7 February 1929 and his Race is shown as Black.  The DD Form 2 shows, in pertinent part, that it was issued on 15 November 1952, with an expiration date of 15 November 1957, a Service Number of ER 53 033 ####, and the applicant’s date of birth was recorded as 8 February 1930.  The DA Form 137, dated 8 November 1952 and Headquarters, 6th Armored Division and Fort Leonard Wood, Missouri,
ALWAG-M 201 Roster #43, dated 5 November 1952, subject: Discharge and Release of Enlisted Personnel, 1000 hours, 15 November 1952, in pertinent part, show his Service Number as “US 53 033 ###.”  VA Claim Number C-17-212-###, dated 5 December 1952, shows, in pertinent part, the applicant’s Service Serial Number (53 033 ###), active duty date (16 November 1950), date of discharge (15 November 1952), date of birth (8 February 1930), and Race (White).  The
2 DA Forms 632, dated 15 November 1952 and 11 July 1953, completed by the applicant, both show, in pertinent part, his Service Number (53 033 ###), date of birth (8 February 1930), Race (Negroid), and date of enlistment or transfer to the Reserve Component (emphasis added) (15 November 1952).  The DA Form 1140, dated 11 December 1954, and certified by the applicant, in pertinent part, shows his Service Number as ER 53 033 ###.  The DD Form 256A (Honorable Discharge Certificate), dated 16 November 1956; shows the applicant’s Enlisted Reserve (ER) Service Number as “ER 53 033 ###, that he was inducted into the Army on 16 November 1950, transferred to the Army Reserve (Active Status) on 16 November 1952, and honorably discharged from the Ready Reserve on
16 November 1956.
6.  On 24 July 2006, the applicant provided a copy of his Certificate of Birth, State of Alabama, Bureau of Vital Statistics, State Board of Health, File Number 118##, filed on 11 February 1929 and certified by the State Registrar of Health Statistics on 2 September 1992.  The Certificate of Birth shows that Irvin H_____ was born on 7 February 1929 in Nicholsville, Alabama, and shows the entry “Black” as the “Color or Race” for both his father and mother.  This document also shows that Item 2 (Full Name of Child) contains the entry “None”, which is lined-thru, and that the Given Name (Irvin H_____) was added from a supplemental report provided by the applicant’s mother on 19 July 1943.

7.  On 28 February 2007, the applicant provided another copy of his Certificate of Birth, State of Alabama, Bureau of Vital Statistics, State Board of Health, File Number 118##, filed on 11 February 1929 and certified by the State Registrar of Health Statistics on 22 February 2007.  The Certificate of Birth shows that Irvin H_____ was born on 7 February 1929 in Nicholsville, Alabama, and shows the entry “Black” as the “Color or Race” for both his father and mother.  This document also shows that Item 2 (Full Name of Child) contains the entry “None”, which is lined-thru, and that the Given Name (Irvin H______ was added from a supplemental report provided by the applicant’s mother on 19 July 1943.

8.  In the processing of this case, coordination was made with the Selective Service System, National Headquarters, Arlington, Virginia.  The Public Affairs Specialist provided a copy of a Selective Service System Registration Card that shows, in pertinent part, that Ervin H_____ was issued Selective Service Number 1 49 30 ##.  This document also shows that he was born in Nicholsville, Alabama, on 8 February 1930.

9.  Special Regulations 615-360-1 (Separation of Enlisted Personnel), in effect at the time of the applicant's separation, established the standardized policy for preparing and distributing discharge documents.  Paragraph 13 (Preparation of Report of Separation from the Armed Forces of the United States) of this regulation provides, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214.  The instructions for Item 12 (Description – Race) state to enter the Race precisely as shown on the enlistment record filed with the Service Record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the Race and date of birth recorded in his military service records are incorrect and should be corrected to show that he is Black and he was born on 7 February 1929.  He also contends, in effect, that the discharge date that is recorded on his DD Form 214 is actually his entry date and his service number should read US 53 033 ###.

2.  The applicant’s Certificate of Birth shows that he was born on 7 February 1929 in Nicholsville, Alabama, and that the Color or Race of both his parents was officially recorded as Black.  The evidence of record also shows that documents pertaining to the applicant’s military service and prepared by the applicant consistently show his date of birth as 8 February 1930 and Race as Negroid.  Whereas, documents pertaining to the applicant’s military service prepared by government officials show his date of birth as 8 February 1930 and Race as Caucasian.

     a.  The evidence of record shows that the applicant’s Given Name is Irvin H_____.  In this regard, the Board notes that the applicant’s first name appears as “Irvin” on the Certificate of Birth, while his military service records consistently show his first name as “Ervin.”  However, the applicant’s first name is not at issue in this case.  Therefore, notwithstanding the difference in the spelling of the applicant’s first name on his birth certificate vis-à-vis his military service records, the preponderance of evidence indicates that the applicant’s correct date of birth is 7 February 1929.  Therefore, the applicant is entitled to correction of the date of birth that is recorded in his military service records.

     b.  The evidence of record shows, at the time of the applicant’s separation from active duty, the instructions for recording entries in Item 12 (Description – Race) of the DD Form 214 state to enter the Race precisely as shown on the enlistment record filed with the Service Record.  The applicant’s military Service Record is not available to the Board.  However, during the period of service under review, the precise entry for Race recorded in the Service Record for persons of black or brown color was “Negroid.”  In this regard, the evidence of record shows that on documents prepared by the applicant during this period, he also indicated that his Race was Negroid.  Therefore, the applicant's records should be corrected to show his Race as “Negroid.”  

3.  The evidence of record shows that the applicant registered with the Selective Service System and was issued Selective Service Number 1 49 30 ##.  The evidence of record also shows the applicant was inducted into the Army of the United States (US) on 16 November 1950, issued Service Number
US 53 033 ### (emphasis added), entered into active service on 16 November 1950, was honorably separated from active duty on 15 November 1952, and transferred to the Enlisted Reserve Component on 16 November 1952.  The evidence of record further shows that the applicant’s discharge document
(i.e., DD Form 214) accurately reflects this data and information.  Therefore, the applicant is not entitled to correction of Item 2, Item 6, Item 13, Item 15, or Item 19 of his DD Form 214.

4.  The evidence of record shows that the applicant transferred to the Enlisted Reserve (ER) Component on 16 November 1952, was issued Service Number ER 53 033 ### (emphasis added), and honorably discharged from the United States Army Reserve, Ready Reserve (Active Status) on 16 November 1956.  The evidence of record also shows that the applicant’s discharge document (i.e., DD Form 256A) accurately reflects this data and information.  Therefore, the applicant is not entitled to correction of his DD Form 256A (Honorable Discharge Certificate), dated 16 November 1956.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__WB___  ___WDP_  ___DLL _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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.  deleting from his DD Form 214 the entry in Item 10 (Date of Birth)
“8 Feb 30” and in Item 12 (Description – Race) “Cau”; and

	b.  adding to his DD Form 214 in Item 10 (Date of Birth) the entry
“7 Feb 29” and in Item 12 (Description – Race) the entry “Neg”.


2.  The Board further determined that 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 the applicant’s Race
(i.e., being recorded as Black); Selective Service Number; Army Service Number; and dates of entry, release from active duty, and discharge that are recorded on his separation and discharge documents.




_____William Blakely_____
          CHAIRPERSON




INDEX

CASE ID
AR20070003015
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/08/16
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19521115
DISCHARGE AUTHORITY
SR 615-363-5
DISCHARGE REASON
Expiration Term of Service – REFRAD
BOARD DECISION
GRANT
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
100.0200.0000
2.
100.1200.0000
3.

4.

5.

6.