IN THE CASE OF:
BOARD DATE: 20 MAY 2010
DOCKET NUMBER: AR20090019017
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 to Item 10 (Date of Birth) of his WD AGO Form 53-98 (Military Records and Report of Separation Certificate of Service).
2. The applicant states his correct date of birth appears on his birth certificate as 19 September 1920 and his discharge indicates 19 September 1918, which is in error.
3. In support of his application, the applicant provides copies of his Certificate of Birth, his WD AGO Form 53-98, and a letter from the Greene County Veterans Service Agency.
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's military records are not available for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed that his records were lost or destroyed in that fire. However, documents submitted by the applicant were sufficient for a fair and impartial review of this case.
3. He submitted a copy of a Certificate of Birth, New York State Department of Health, Division of Vital Statistics, Albany that certified an individual with the applicants same first and last name was born on 19 September 1920.
4. His available military records show that he was commissioned in the Army of the United States and entered active duty on 13 March 1943, with prior enlisted service. He was released from active duty on 30 December 1945.
5. His WD AGO Form 53-98, Item 10, shows his date of birth as 19 September 1918.
DISCUSSION AND CONCLUSIONS:
1. In the absence of evidence showing an error or injustice it has been determined the birth date shown on his WD AGO Form 53-98 is correct and no basis has been established to support the change requested. For historical purposes, the Army has an interest in maintaining the consistency of its records. The data contained in those records should reflect the conditions and circumstances that existed at the time the records were created.
2. While the Board understands his desire to have the WD AGO Form 53-98 changed, it finds no basis for compromising the integrity of the Armys records. A copy of this decisional document along with the application and enclosures will be filed in a reconstructed official military file for reference purposes.
3. In view of the foregoing, there is no basis for granting the applicant's request.
BOARD VOTE:
___X____ ________ ___X ___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ __X_____ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the majority of the Board determined that the overall merits of this case are sufficient to grant relief.
2. The applicant provided a birth certificate showing his date of birth as 19 September 1920. When he completed his application to this Board, he averred that what he stated was true, under pain of perjury. Accordingly, the majority of the Board believed that the evidence weighed in favor of the applicant and that an appropriate document should be prepared to correct his WD AGO Form 53-98 to show his date of birth as 19 September 1920.
_______ _ XXX_____ ___
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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