IN THE CASE OF:
BOARD DATE: 11 June 2009
DOCKET NUMBER: AR20090006100
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 the records of her deceased husband, a former service member (FSM), be corrected to show his correct date of birth (DOB).
2. The applicant states, in effect, that the FSM was born on 14 March 1924 whereas his WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Service) shows this date as 14 March 1921.
3. The applicant provides a copy of the FSMs WD AGO Form 53-55, dated 18 September 1945; a copy of the FSMs birth certificate, issued 26 March 1981; a copy of their marriage license, dated 27 October 1945; and a copy of the FSMs certificate of death, dated 13 October 2008, in support of her 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 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 FSMs military records are not available to the Board for review. A fire destroyed approximately 18 million service members records at the National Personnel Records Center in 1973. It is believed that the FSMs records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.
3. The FSM's WD AGO Form 53-55 shows he enlisted in the Texas Army National Guard on 2 June 1940 and entered active duty in Galveston, TX, on 25 November 1994. A copy of the FSMs enlistment contract is not available for review with this case.
4. The FSMs records also show he completed 2 years, 4 months, and 15 days of continental service and 2 years, 5 months, and 9 days of foreign service. He was honorably separated at Fort Sam Houston, TX, on 18 September 1945. Item 10 (Date of Birth) of his WD AGO Form 53-55 shows he was born on 14 March 1921.
5. The applicant submitted copies of the FSMs birth and death certificates, both of which show his date of birth as 14 March 1924.
6. Army Regulation 635-5 (Separation Documents), currently in effect, 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 separation document. In pertinent part, it states that the separation document is a synopsis of the Soldiers 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 contends that the records of her deceased husband, an FSM, should be corrected to show his correct DOB.
2. The FSMs reconstructed record is void of his initial induction and/or enlistment document that shows the DOB he used upon entry into military service. 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 FSMs DOB in this case.
3. A copy of this decisional document, along with the applicants application will be filed in the FSMs official military personnel file. This should serve to clarify any questions or confusion regarding the different dates of birth and adequately document his date of birth in his record.
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) AR20090006100
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ABCMR Record of Proceedings (cont) AR20090006100
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