IN THE CASE OF:
BOARD DATE: 10 December 2009
DOCKET NUMBER: AR20090011081
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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he is a U.S. citizen.
2. The applicant states that item 7 (U.S. Citizen) of his DD Form 214 is marked "No"; however, he was a U.S. citizen at the time of his separation.
3. The applicant provides copies of his DD Form 214 and Certificate of Naturalization in support of his application.
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. A DD Form 4 (Enlistment Record - Armed Forces of the United States) shows the applicant enlisted in the U.S. Army for a period of 4 years on 22 September 1965. Item 19 (Citizen) shows an "X" in the "No" block and in response to the statement, "If No, Lawfully Admitted for Permanent Residence" it shows an "X" in the "Yes" block.
3. A DD Form 398 (Statement of Personal History), dated 12 January 1966, shows an "X" in the "Alien" block in item 7 (U.S. Citizen). This item also shows the applicant's alien registration number and that his native country is Germany.
4. The applicant's DA Form 20 (Enlisted Qualification Record) shows the entries "Germany" and "Non-Citizen" in item 20 (Birthplace and Citizenship). Item 21 (Residence in Foreign Country) shows the applicant resided in Germany for 5 years from 1946 to 1950, in Canada for 12 years from 1951 to 1962, and in Germany for 3 years from 1963 to 1965.
5. A DD Form 214 for the period ending 21 September 1966 shows the applicant enlisted in the Regular Army on 22 September 1965. He was honorably discharged on 21 September 1966 for the purpose of reenlistment. Item 5 (Place of Birth) shows the entry "Neu Niekohr, Germany" and item 8 (U.S. Citizen) shows an "X" in the "Yes" block.
6. A DD Form 214 for the period ending 21 September 1970 shows the applicant entered this period of active duty on 22 September 1966. He was honorably released from active duty (REFRAD) on 21 September 1970 based on the expiration of his term of service. Item 7 (U.S. Citizen) shows an "X" in the "No" block and item 8 (Place of Birth) shows the entry "Neu Niekohr, Germany."
7. In support of his application, the applicant provides a copy of his United States of America Department of Justice Certificate of Naturalization. This document shows the District Court of the United States for the Western District of Texas declared the applicant was entitled to be admitted to citizenship and was admitted as a citizen of the United States of America on 17 September 1970.
8. Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed policies and procedures regarding separation documents. It also established standardized policy for preparing and distributing the DD Form 214. Army Regulation 635-5 stated that the purpose of a separation document was to provide the individual with documentary evidence of his or her military service at the time of separation. Therefore, it is important the information entered thereon was complete and accurate as of that date.
a. Section III 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 DA Form 20, DA Form 66 (Officer Qualification Record), and orders.
b. Paragraph 24 (Item 7) states to enter the information from the DA Form 20 or DA Form 66, as appropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his 1970 DD Form 214 should be corrected to show he is a U.S. citizen.
2. Records show the applicant was born in Germany, lawfully admitted to the United States, and that he enlisted in the U.S. Army on 22 September 1965.
3. The evidence of record shows the applicant was admitted as a naturalized citizen of the United States of America on 17 September 1970.
4. The applicant's DD Form 214 for the period ending 21 September 1966 shows in item 8 that he was a U.S. Citizen; however, the evidence of record indicates otherwise. Despite what appears to be an erroneous entry, no action is being taken correct this item.
5. The applicant's DD Form 214 for the period ending 21 September 1970 shows in item 7 that he was not a U.S. Citizen at the time he was REFRAD. However, the evidence of record shows the applicant was admitted as a naturalized citizen of the United States of America on 17 September 1970. Therefore, it would be appropriate to correct this DD Form 214 to show he was a U.S. citizen at that time.
BOARD VOTE:
____X___ ____X___ __ _X___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting from item 7 of his 21 September 1970 DD Form 214 the "X" from the "No" block and adding an "X" to the "Yes" block.
____________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.
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