IN THE CASE OF:	  

		BOARD DATE:	  19 May 2011

		DOCKET NUMBER:  AR20100026038 


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 change his:

* date of birth (DOB) from 22 November 1949 to 22 November 1948
* place of birth (POB) from Los Angeles, CA to Mexico City, Mexico
* citizenship from United States to Mexico

2.  He states his year of birth is incorrectly shown as 1949 on his DD Form 214 when, in fact, he was born on 22 November 1948.  He attributes this to the fact his birth certificate was registered and issued nearly a year after his birth because hospitals in Mexico do not issue birth certificates; they are obtained from the City Hall of the municipality in which you were born.  He attests that his recruiter submitted his enlistment documentation indicating he was a U.S. citizen when at the time he was a citizen of Mexico.  He admits that he wanted to serve in the U.S. Army and fight in Vietnam so he told the recruiter he was born in Los Angeles, CA, and the recruiter did not ask for his birth certificate.  He concludes that he fought bravely for the United States during the Vietnam conflict and needs these corrections because he is of retirement age and has to supply this information to the Social Security Board.  Without these corrections, he will be denied benefits to which he is entitled.

3.  He provides his Mexican Birth Certificate and U.S. Certificate of Naturalization.


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 shows he was inducted into the Army of the United States on 24 February 1970.  He served on active duty for a period of 1 year, 7 months, and 29 days prior to being released on 28 January 1972 with an honorable characterization of service and transferred to the U.S. Army Reserve Control Group (Annual Training) for the completion of the remainder of his service obligation.

3.  A thorough review of every document contained in his available military personnel record, many of which bear his signature, shows the following information consistently appears:

* DOB – 22 November 1949
* POB – Los Angeles, CA
* Citizenship – United States

4.  His DD Form 214 shows the following:

* item 7 (U.S. Citizen) – Yes
* item 8 (POB (City and State or County)) – Los Angeles, CA
* item 9 (DOB) – 22 November 1949

5.  The applicant provides his Mexican Birth Certificate which shows he was born on 22 November 1948 and his birth was registered in Mexico City on 14 January 1949.  This form also shows the nationality of both of his parents as Mexican.

6.  The applicant provides his U.S. Certificate of Naturalization issued on 12 December 1991 which shows he was born on 22 November 1948 and his former nationality was Mexican.

7.  Army Regulation 635-5 (Separation Documents) 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 DD Form 214.  It states that the DD Form 214 is a synopsis of the Soldier's 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's contention that his DD Form 214 should be corrected to change his DOB, POB, and citizenship was carefully considered and determined to lack merit.

2.  The evidence of record shows his DOB, POB, and citizenship reflected on his DD Form 214 are consistent with every document in his available service personnel record throughout his period of service.  He authenticated several of these documents and his DD Form 214 by placing his signature in the appropriate blocks.

3.  By his own admission, erroneous information was provided at the time of his entry and no attempt was made to correct the information until recently in order to apply for social security retirement benefits.

4.  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.

5.  The fact that his birth certificate shows he was actually born in Mexico City, Mexico as a Mexican citizen on 22 November 1948 is duly noted and a copy will be added to his record along with a copy of this Record of Proceedings.  However, this does not change the conditions and circumstances that existed at the time his service records were created.

6.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment or retirement 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 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)                                         AR20100026038



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100026038



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1