IN THE CASE OF:	  

		BOARD DATE:	       10 February 2009

		DOCKET NUMBER:  AR20080009109 


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, in effect, correction of his military service records to show his correct date of birth (DOB).

2.  The applicant states, in effect, that his father went with him when he enlisted in the U.S. Army and gave the wrong DOB.  He adds that his DOB is recorded in his military records as # February 19#7, but his DOB is actually # February 19#6. 
The applicant also states that his military records must be corrected before he may apply for Social Security benefits. 

3.  The applicant provides copies of his Certificate of Baptism; South Carolina Retirement Systems form, dated 1995; South Carolina Department of Motor Vehicles, Driver’s License #: 001566###, issued 1 March 2007; South Carolina, Department of Health and Environmental Control letter, dated 22 January 2008; and Palmetto Middle School letter, dated 25 February 2008.

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 personnel records contain a DD Form 398 (Statement of Personal History), dated 15 August 1967.  Item 5 (Date of Birth) shows the applicant entered “2 - # - #7” (i.e., # February 19#7).  Item 10 (Family), in pertinent part, shows the applicant documented that his father’s name is Porter C. R_________ and mother’s name is Bonnie R. R_________.

3.  The applicant’s military personnel records contain a DD Form 47 (Record of Induction), dated 15 August 1967.  Item 5 (Date of Birth) contains the entry
“# Feb 19#7.”

4.  The applicant’s military personnel records contain a DA Form 20 (Enlisted Qualification Record).  Item 6 (Date of Birth) contains the entry “# Feb #7.”

5.  The applicant’s military personnel records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he entered active duty on 15 August 1967.  Item 9 (Date of Birth) contains the entry “# FEB #7.”  The DD Form 214 also shows the applicant was honorably released from active duty on 14 August 1969 and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining military service obligation.

6.  In support of his application, the applicant provides the following documents.

a.  A Certificate of Baptism that shows the applicant is the child of Mr. Porter
R_________ and Mrs. Bonnie R_________.  The applicant’s DOB appears to show # February 19#6 and the date the document was issued appears to show 16 April 19#6.  However, it is noted that the numerals “6” appearing throughout the document are inconsistent in appearance and the last digit of the year in the DOB and date of issue look to have been altered to appear as the numeral “6.”

     b.  South Carolina Retirement Systems form, dated 1995, that shows the applicant requested refund of his accumulated contributions and interest and, in pertinent part, indicated his DOB was # February 19#6.

     c.  South Carolina Department of Motor Vehicles, Driver’s License #: 001566###, issued 1 March 2007, that shows, in pertinent part, the applicant’s DOB as # February 19#6.

     d.  South Carolina, Department of Health and Environmental Control, letter, dated 22 January 2008, that shows, in pertinent part, “a diligent search of the statewide birth indexes for 19#0 through 19#9 has been made and no record was located for [applicant’s name] said to have been born on # February 19#6 in Marion County, South Carolina, as the child of Bonnie E___ (R_________) and Porter Charlie R_________.”

     e.  Palmetto Middle School letter, dated 25 February 2008, that shows that according to school records at the school (formerly Palmetto High School), the applicant’s DOB is # February 19#6.  This document also shows the names of applicant’s parents as Porter R_________ and Bonnie R_________.

7.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.  This Army regulation states that the purpose of a separation document is to provide the individual with documentary evidence of their military service at the time of separation.  Therefore, it is important the information entered thereon is complete and accurate as of that date.

8.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) of Army Regulation 635-5 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.  Paragraph 25 (Item 8 - Place of Birth and Item 9 - Date of Birth) states, “Self-explanatory.”

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the DOB recorded in his military personnel records should be corrected to show he was born on # February 19#6.



2.  The evidence of record shows that, upon entry and also throughout the entire period of his military service, the applicant declared and affirmed that his DOB is # February 19#7 and, in this regard, that his DOB is properly and correctly documented in his military service records.  

3.  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.  The evidence of record shows that the applicant's military personnel records consistently show his DOB as # February 19#7.  Accordingly, considering all the evidence and information presented by the applicant, together with the evidence of record, applicable law, and regulations, it is concluded that the documents provided by the applicant are insufficient evidence to warrant a change to his military service records and discharge document.  Thus, there is no basis for granting the applicant's request to change his DOB in his military service records or his discharge document because his military service records accurately reflect the conditions and circumstances that existed during the period of his military service.  Therefore, the applicant is not entitled to correction of his records.

4.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  The applicant fails to provide such evidence.  Therefore, the applicant is not entitled to correction of his military personnel records in this case.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20080009109



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ABCMR Record of Proceedings (cont)                                         AR20080009109



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