IN THE CASE OF:	  

		BOARD DATE:	  1 March 2011

		DOCKET NUMBER:  AR20100021785 


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 his military record be corrected to reflect his correct date of birth (DOB) and to document his combat service in Korea with the 1st Cavalry Division. 

2.  The applicant states his DOB is 22 April 1929, and he enlisted at 16 years of age.  He further states he performed the majority of his service with the 1st Cavalry Division from 1949 through 1951.  

3.  The applicant provides a Congressional Inquiry, birth certificate, and DD Form 214 (Report of Separation from the Armed Forces of the United States) 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 military record is not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC) in 1973.  It is believed that the applicant’s records were lost or destroyed in that fire.  This case is being considered using the applicant’s DD Form 214 and documents he submitted, along with miscellaneous documents remaining NPRC file including a WD Form 372A (Final Payment Work Sheet). 

3.  The applicant’s DD Form 214 shows he entered active duty in the Regular Army on 5 January 1949.  Item 10 (Date of Birth) lists his DOB as 22 April 1928.  It also shows he completed 2 years, 10 months, and 18 days of overseas service in item 26 (Foreign and/or Sea Service) and that he earned the following awards in item 27 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized):

* Army of Occupation Medal (Japan)
* Republic of Korea Presidential Unit Citation
* Korean Service Medal with 6 bronze service stars

4.  Item 28 (Most Significant Duty Assignment) of the applicant’s DD Form 214 contains the entry “B Btry 27th Armd FA Bn” (B Battery, 27th Armored Field Artillery Battalion), and item 8 (Specialty Number) shows he held military occupational specialty 1641 (Field Wireman). 

5.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  The regulation in effect at the time of the applicant's discharge provided for entering the last unit, or similar element, to which assigned for duty rather than the element of which individual was part while moving to a separation point in item 28.  The current version of the regulation provides for entering the unit to which assigned at the time of separation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to correct his military record to show his DOB as 
22 April 1929, as is listed on his birth certificate, has been carefully considered.  


However, his DD Form 214 shows he served and was separated using a DOB of 22 April 1928.  The Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  

2.  While the applicant’s desire to have the records changed to reflect the DOB listed on the birth certificate he now provides is understood, there is no indication he questioned the DOB at anytime during his military service, or at the time he was separated from active duty.  Therefore, there is an insufficient evidentiary basis to support compromising the integrity of the Army’s records to satisfy this request at this late date.  

3.  A copy of this decisional document, along with his application and associated documents to include the birth certificate provided by the applicant, will be filed in his Official Military Personnel File (OMPF).  This should serve to clarify any questions or confusion regarding the difference in the DOB recorded on his
DD Form 214 and the one contained on his birth certificate.  

4.  The applicant’s desire to document his combat service in Korea with the
1st Cavalry Division has also been carefully considered.  However, item 26 of his
DD Form 214 reflects his total period of overseas service of 2 years, 10 months, and 18 days and item 27 includes the Korean Service Medal with 6 bronze service stars which clearly confirms his service in Korea.  Further, item 28 lists the last unit to which he was assigned for duty.  Therefore, given there were no regulatory provisions in effect at the time or that currently exist that  provide for entering specific units of assignment other than the last unit to which a member is assigned, there is an insufficient regulatory basis to support granting this portion of the requested relief.  

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)                                         AR20100021785



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ABCMR Record of Proceedings (cont)                                         AR20100021785



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