RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20070017967 


	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.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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, that his birth date be changed on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 13 November 1967.

2.  The applicant states, in effect, that he was an abandoned child and that at the time of his enlistment, his birth date was questionable.  He was abandoned without a birth certificate.  His recruiter advised him that without proof of his age or signature from a guardian, he would have to be 21 years old to enlist.  The recruiter assisted him in computing a date that would make enlistment possible.  He has since found family members and discovered that he was born in 1931 and not 1928. 

3.  The applicant provides a copy of his DD Form 214; a copy of an expired U.S. passport; a copy of a U.S. Department of Commerce Bureau of the Census report for the 1940 Census; a copy of a birth affidavit from his sister; and
3 notarized statements regarding his abandonment.

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 served in the Regular Army from 12 May 1950 through
13 November 1967.  He was issued several DD Forms 214 and they all show his date of birth as 27 May 1928.  All official records in the applicant's file show he was born on 27 May 1928.

3.  A review of his initial enlistment contract shows that he enlisted at the U.S. Army and U.S. Air Force Recruiting Main Station in Cincinnati, Ohio (OH).  He reported his date of birth as 27 May 1928 and place of birth as Villirica, Georgia.  He executed a NME Form Number 93 (Record of Emergency Data for the Armed Forces of the U.S.) and reported his mother's name as M_____ B_____, residing at 319 Holland Avenue, Dayton, OH and that in case of an emergency, his personal effects should be shipped to her.  

4.  The applicant completed a DD Form 398 (Statement of Personal History) on
5 June 1962 and reported his date of birth as 27 May 1928.  He also reported that he lived in Dayton from August 1936 - August 1942, and July 1943 - May 1950.  He indicated that his mother was living at 1300 San Jose Street SE, San Diego, California (CA) and his permanent address as 140 29th Street, San Diego, CA.  

5.  The applicant provided a copy of a U.S. Department of Commerce, Bureau of the Census Form BC-665, dated 18 February 1992, showing that he was enumerated in the family of M____ D ____ in Montgomery County, Ohio on
1 April 1940.  He was reported as being 8 years old.  The Department of Commerce stated that the Bureau of the Census did not issue birth certificates, but that the record was often accepted in place of one.

6.  The applicant provided a Department of State Birth Affidavit from his sister, Ch______ B ______, dated 3 December 1993.  She states that she was present at the applicant's birth on 27 May 1931 and that their mother's name was M_____ P______.  His sister would have been 5 years old when the applicant was allegedly born in 1931.

7.  The applicant provides 3 statements attesting to the fact that his mother M_____ B_____ abandoned him and his sister CL_____ D _______, in 1941.

8.  The applicant provided a copy of his U.S. Passport that was issued on
27 February 1992, expired on 30 May 1992, and stamped “CANCELLED” on
4 March 2003.  It shows his date of birth as 27 May 1931.

9.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for preparation of the DD Form 214.  In pertinent part it states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. 




DISCUSSION AND CONCLUSIONS:

1.  The applicant alleges that he was abandoned without a birth certificate and that he was actually born on 27 May 1931 versus 27 May 1928 as reported on all of his official military records.

2.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should actually reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, there is a reluctance to recommend that those records be changed.

3.  Given the above, the applicant's evidence is inconclusive in establishing that he was born on 27 May 1931.  While it may be true that his mother abandoned him and his sister in 1941, at the time of his enlistment, he was living in Dayton, OH and reported his mother's address as also being in Dayton, OH.  On his emergency data form, he designated his mother as the recipient of his personal effects in case of an emergency.  It seems reasonable that if the applicant did not possess a birth certificate at the time of his enlistment and was unable to prove he was 21 as he alleges, he could have contacted his mother for assistance since they were living in the same city.  

4.  Under Army regulations the applicant would have been permitted to enlist at the age of 18 without parental consent.  The applicant contends that he was advised that without proof of age or a signature from a guardian, he would have to be 21 years old to enlist, so the recruiter assisted him in computing a birth date that would make enlistment possible.  This contention is without merit; if he could not prove he was 18, he also could not prove he was 21, in which case he still would not have been eligible to enlist in the Army.  Further, since he apparently had some relationship with his mother at the time, he could have acquired the necessary information from her.  

5.  The applicant served for over 16 years in the Regular Army and always self-reported his date of birth as 27 May 1928.  When he completed a Statement of Personal History in June 1962, he reported his permanent address and his mother's address as being in San Diego.  As such, it is also reasonable to presume that during his lengthy period of active duty, he had some contact with his mother and would have discovered he was born in 1931 versus 1928.



6.  Notwithstanding that he was issued a U.S. passport showing his birth date as 27 May 1931, the Army has an interest in maintaining its historical records, and without convincing evidence, finds no basis for compromising the integrity of its records.

7.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit convincing evidence that would satisfy this requirement. Therefore, there is an insufficient basis upon which to grant his request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__rml___  __gjp___  __swf___  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.



							RML
      ______________________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070017967



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508