IN THE CASE OF:
BOARD DATE: 15 September 2011
DOCKET NUMBER: AR20110006108
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 that records be corrected to reflect his correct date of birth (DOB) of 21 April 1943.
2. The applicant states that his records incorrectly reflect that his DOB is 21 April 1942; however, his DOB is 21 April 1943.
3. The applicant provides a certificate of birth showing his DOB as 21 April 1943.
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 initially enlisted in the Puerto Rico Army National Guard on 10 January 1960 for a period of 3 years (which, with a DOB of 21 April 1943, would have made him 16 years, 8 months, and 11 days of age). At the time of his enlistment he indicated that his DOB was 21 April 1942.
3. On 18 March 1963 he was inducted into the Army of the United States and his DOB was listed as 21 April 1942. He served until he was honorably released from active duty (REFRAD) on 17 March 1965 and was transferred to the United States Army Reserve (USAR) Control Group (Standby).
4. On 30 March 1967 he enlisted in the Regular Army with an eligibility waiver for a period of 3 years and he declared his DOB to be 21 April 1942. He was initially assigned to Fort Campbell, Kentucky and on 3 October 1967 he was transferred to Vietnam with his unit. He was promoted to the rank of sergeant (SGT) on 27 April 1968.
5. On 19 May 1968 he was wounded in action when he sustained fragmentation wounds to the skull with brain damage and was initially evacuated to the 12th United States Air Force Hospital in Cam Ranh Bay, South Vietnam and then to Walter Reed General Hospital in Washington, D.C..
6. On 7 November 1968 he was permanently retired by reason of physical disability with a 90% disability rating. He had served 3 years, 7 months, and 8 days of total active service. His DD Form 214 issued at the time of his retirement reflects his DOB as 21 April 1942.
7. The Certificate of Birth provided by the applicant reflects that the applicants DOB is 21 April 1943.
8. Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214. It provides that the DD Form 214 will be prepared to reflect information as it exists in the official records at the time of separation.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant's DOB from the time of his enlistment until his retirement was 21 April 1942. There is no evidence of record or independent evidence that suggests his military records exhibit a material error or injustice.
2. For historical purposes, the Army has an interest in maintaining the integrity 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. In the absence of a showing of material error or injustice, there is a reluctance to recommend that those records be changed. While it is understandable that the applicant desires to now record his legal DOB in his military records, there is not a sufficiently compelling reason for compromising the integrity of the Army's records at this late date.
3. The applicant is advised that a copy of this decisional document along with his application and the supporting evidence he provided which confirms his current DOB will be filed in his official military personnel file (OMPF). This should serve to clarify any questions or confusion in regard to the difference in the DOB recorded in his military record and to satisfy his desire to have his current DOB documented in his OMPF.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ __X_____ ___X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War. The applicant and all Americans should be justifiably proud of his service in arms.
__________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) AR20110006108
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ABCMR Record of Proceedings (cont) AR20110006108
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