IN THE CASE OF:	  

		BOARD DATE:	  April 14, 2009

		DOCKET NUMBER:  AR20090000565 


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 correction of his NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) to show his date of birth (DOB) as 20 August 1960 instead of 9 August 1960.

2.  The applicant states that his NGB Form 22 lists the wrong DOB.

3.  The applicant provides a copy of his NGB Form 22, dated 1 November 1999; a copy of his hospital certificate of birth, dated 20 August 1960; and a copy of his Virginia birth certificate, date issued 18 July 1966, in support of his request.

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 records show he enlisted in the Virginia (VA) Army National Guard (ARNG) on 13 March 1979.  Item 7 (Date of Birth) of his DD Form 4 (Enlistment or Reenlistment Agreement-Armed Forces of the United States) shows the entry "9 August 1960."  The applicant authenticated this form by placing his signature in item 27 (Signature of Enlistee/Reenlistee).

3.  Item 27 (Remarks) of the applicant’s DA Form 2-1 (Personnel Qualification Record), dated 13 March 1979, and reviewed by the applicant on 7 March 1998 shows the entry "DOB:  600809."  However, this DOB entry contains a line drawn through it and a hand-written pencil entry that shows the number "20."

4.  The applicant’s records further show he entered active duty for training on 28 June 1979, completed basic combat and advanced individual training, and was awarded military occupational specialty 62E (Heavy Construction Equipment Operator).  He was honorably released from active duty to the control of his ARNG unit on 20 October 1979.  Item 6 (Date of Birth) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows the entry "9 August 1960."

5.  The applicant’s records show he executed a series of extensions and/or reenlistments in the VAARNG.

6.  The applicant's DA Form 2A (Personnel Qualification Record), dated 22 September 1994, shows his DOB as 9 August 1960.

7.  On 10 May 1999, the Department of Military Affairs, VAARNG, Richmond, VA, issued the applicant a Notification of Eligibility for Retired Pay.  This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

9.  On 14 January 2000, Office of the Adjutant General of Virginia, VAARNG, Blackstone, VA, published Orders 014-052, discharging the applicant from the ARNG effective 31 October 1999 and assigning him to the Retired Reserve effective 1 October 1999.

10.  The applicant's records further show he was honorably discharged from the ARNG and transferred to the U.S. Army Reserve Control Group (Retired Reserve) on 1 November 1999.  Item 7 (Date of Birth) of the NGB Form 22 he was issued shows the entry "60  08  09."

11.  There is no indication in the applicant's records that he used 20 August 1960 as his DOB throughout his military service.
12.  The applicant provided a copy of his hospital certificate of birth and a copy of his State birth certificate, filed on 20 December 2001, that show he was born on 20 August 1960.

13.  National Guard Regulation 600-200 (Enlisted Personnel Management) provides for enlisted personnel management of Army National Guard Soldiers.  Chapter 8 of this regulation provides for the preparation and distribution of the NGB Form 22.  This form is prepared for every Soldier being discharged from the ARNG or released from the custody and control of the military except when a Soldier is accomplishing an interstate transfer or the Soldier dies.  Item 7 of this form will show the Soldier's date of birth.

14.  Army Regulation 635-5 (Separation Documents) 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 the 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 requests that his NGB Form 22 be corrected to show his correct DOB as 20 August 1960.

2.  The evidence of record shows that the applicant used 9 August 1960 on his initial enlistment in the ARNG and his subsequent extensions and/or reenlistments.  Furthermore, his 9 August 1960 DOB is consistent with the DOB on several documents in his service record throughout his entire military service. The applicant authenticated several documents by placing his signature in the appropriate block indicating that his DOB on each form was correct.  He did not use the requested DOB during his military service.

3.  The Army has an interest in maintaining the accuracy of its records for historical purposes.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.  In the absence of compelling information to the contrary, there is no basis for changing the applicant’s date of birth in this case.

4.  A copy of this decisional document along with his application will be filed in his official military personnel file (OMPF).  This should serve to clarify any questions or confusion regarding the different dates of birth and adequately document his date of birth in his OMPF.
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)                                         AR20090000565



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ABCMR Record of Proceedings (cont)                                         AR20090000565



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