IN THE CASE OF:
BOARD DATE: 22 September 2011
DOCKET NUMBER: AR20110005700
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 WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) to show his date of birth (DOB) as "12 August 1923" instead of "12 January 1922."
2. The applicant states his DOB is incorrectly recorded on his WD AGO Form 53-55, because he wanted to serve his country during wartime when he was otherwise under age.
3. The applicant provides his WD AGO Form 53-55, dated 14 October 1945 and a North Carolina Department of Human Resources Division of Health Services (DHS) Form 1100 (Certification of Live Birth).
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 records are not available to the Board for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed that the applicant's records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.
3. The applicant enlisted in the Regular Army on 4 April 1940. His available record contains a WD AGO Form entitled "Enlistment Record Regular Army;" however, this form does not contain his DOB.
4. Item 8 (DOB) of his WD AGO Form 100 (Army of the United States Separation Qualification Record) shows his DOB as 12 August 1922.
5. His WD AGO Form 53-55 shows he was honorably discharged on 14 October 1945. At the time of his discharge he held military occupational specialty 141 (Marine Oiler). The highest rank he attained during his period of service was technician, fourth grade.
6. Item 10 (DOB) of his WD AGO Form 53-55 shows his DOB as 12 January 1922.
7. He provides a North Carolina DHS Form 1100, which shows his DOB as 12 August 1923.
8. War Department Technical Manual 12-236 (Preparation of Separation Forms), then in effect, and Army Regulation 635-5 (Separation Documents) prescribe the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. These regulations establish standardized policy for the preparation of the separation document. In pertinent part, they state the separation document is a synopsis of the Soldier's most recent period of continuous active duty and 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 contends his WD AGO Form 53-55 should be amended to show his correct DOB.
2. The applicant's Separation Qualification Record, Honorable Discharge document, and birth certificate each contain a different DOB. His available enlistment record does not contain his DOB, and it is unclear what DOB he used when he enlisted into the Army; however, in his statement to the Board, he acknowledged using a false DOB in order to be eligible to serve while under age. Since the DOB he used when he enlisted is unknown, it is presumed that the DOB shown on his WD AGO Form 53-55 is consistent with the DOB predominantly used throughout his military service.
3. The Army has an interest in maintaining the integrity of its records for historical purposes. The information in his 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 records in this case.
4. A copy of this decisional document along with the application will be filed in his military service records. This should serve to clarify any questions or confusion regarding the applicant's different DOB's and adequately document his DOB in his record for the purpose of entitlement to veterans' benefits.
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) AR20090012437
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20110005700
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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