IN THE CASE OF:	  

		BOARD DATE:	  11 May 2010

		DOCKET NUMBER:  AR20090018519 


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 (U.S.) Report of Transfer or Discharge) to show he was a U.S. citizen during his period of active service.

2.  The applicant states, in effect, his DD Form 214 erroneously shows he was a German citizen during his period of active service.  He also states that he became a U.S citizen on 15 May 1962.  The applicant concludes by stating he needs his DD Form 214 amended because it is causing him difficulty with paperwork and access to benefits.

3.  The applicant provides copies of special orders showing his DD Form 214 and Certificate of Citizenship as documentary evidence 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.  The applicant's record contains a DD Form 4 (Enlistment Contract - Armed Forces of the U.S.), dated 28 September 1970.  Item 21 (Date of Birth) of this form shows the applicant was born on 6 September 1949.  Item 22 (Citizenship) shows he was a citizen of a country other than the U.S.  Item 23 (Place of Birth) shows he was born in East Berlin, Germany.  Item 56 (Remarks) shows he was a citizen of Germany and his Immigration and Naturalization Service (INS) Registration Number was 1______6.  In Item 55 of this form, the applicant swore (or affirmed) the information provided by him on this form was correctly recorded and it was true in all respects.  The applicant authenticated this document with his signature.  He also signed this form in Item 57 (Oath of Enlistment).

3.  The applicant's record contains a DD Form 398 (Statement of Personal History), dated 29 October 1970.  Item 7 of this form shows he was a citizen of Germany and he was a Registered Alien with INS Registration Number A1______6.  Item 7 also shows the applicant indicated he intended to become a citizen of the U.S.  In Item 20 (Remarks) of this form, the applicant certified the information provided by him on this form was true, complete, and correct to the best of his knowledge and belief and he authenticated this document with his signature.

4.  The applicant's record contains a DA Form 2784 (Request for and Results of Personnel Security Action), dated 29 November 1971.  Section IV (Control Office to Action Agency) of this form shows an Immigrant Alien background investigation had been conducted on the applicant resulting in a favorable determination on 20 January 1971.

5.  The applicant's record contains a DA Form 20 (Enlisted Qualification Record). 
Item 18 (Assignment Limitations) of this form shows the applicant was an Immigrant Alien.  Item 20 (Birthplace and Citizenship) shows he was born in East Berlin and he was a German citizen.  Item 47 (Signature of Individual-Name, grade and date) shows the applicant reviewed this document for accuracy on 19 October 1972 and authenticated it with his signature.

6.  Item 7 (U.S. Citizen) of the applicant's DD Form 214 shows he was not a U.S. Citizen at the time of his discharge on 27 October 1972.


7.  A thorough review of the documents contained in the applicant's service personnel record revealed that his citizenship appeared consistently as German.
The applicant's citizenship does not appear as U.S. on any document contained in his available service record.

8.  The applicant provides a United States of America Certificate of Citizenship from Department of Justice, dated 10 May 2002.  This document shows he was issued the certificate after applying to the Commissioner of Immigration and Naturalization for a certificate of citizenship and having proven to the satisfaction of the Commissioner that he was now a citizen of the U.S. and became a citizen thereof on 15 May 1962.

9.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for the preparation of the DD Form 214.  It stated that the DD Form 214 was a synopsis of the Soldier’s most recent period of continuous active duty.  It provided a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

10.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for benefits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 should be corrected by changing Item 7 to show he was a U.S. citizen at the time of separation was carefully considered and determined to lack merit.

2.  The evidence of record shows the applicant enlisted in the Army on
28 September 1970 and he indicated that he was a German citizen.  He also provided his INS Registration Number to verify his Registered Alien status.  His German citizenship is consistent on every document in his available service personnel record throughout his period of service.  The applicant authenticated several documents by placing his signature in the appropriate block indicating that he was a German citizen.  There is no evidence that he indicated he was a U.S. citizen in any formal capacity during his period of 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 records to show he was a U.S. citizen during his period of service.

4.  The fact that the applicant applied for and was issued a Certificate of Citizenship (30 years after his discharge) with a retroactive effective date of citizenship does not change the conditions and circumstances that existed at the time his service records were created.

5.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for benefits.  Additionally, in order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  This action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.  

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)                                         AR20090018519



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ABCMR Record of Proceedings (cont)                                         AR20090018519



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