IN THE CASE OF:
BOARD DATE: 16 July 2009
DOCKET NUMBER: AR20090003210
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 that the date of birth listed on his WD AGO Form 53-55 (Enlisted Record and Report of SeparationHonorable Discharge) be corrected.
2. The applicant states he is sending a birth certificate to show the correct date is 26 January 1924.
3. The applicant provides, in support of his request, copies of a Mexican certificate of birth registry and his WD AGO Form 53-55.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was inducted in San Antonio, Texas on 19 May 1943. Page 2 of his WD AGO Form 24 (Service Record) and his Report of Physical Examination and Induction show his date of birth as 26 February 1924.
3. An Immigration and Naturalization Service Form 428, signed by the applicant on 26 March 1946, lists his date of birth as 26 February 1924.
4. Parental names and the location of birth listed on the Mexican birth registry certificate coincide with the evidence of record. The individual's date of birth is listed as 24 January 1924.
DISCUSSION AND CONCLUSIONS:
1. The applicant states that the date of birth listed on his WD AGO Form 53-55 is wrong and requests that it be corrected.
2. Although there are similarities in the information in the available records and on the Mexican certificate of birth registry, 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, this Board is reluctant to recommend that those records be changed.
3. A copy of this Record of Proceedings with the applicant's certificate of birth registry will be filed in his records.
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) AR20090003210
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ABCMR Record of Proceedings (cont) AR20090003210
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