IN THE CASE OF:
BOARD DATE: 1 December 2011
DOCKET NUMBER: AR20110011905
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 the DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his date of birth as XX January 1932.
2. The applicant makes no statement.
3. The applicant provides copies of his birth certificate, DD Form 214, and Honorable Discharge Certificate.
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 for review. A fire destroyed approximately 18 million service member's records at the National Personnel Records Center in 1973. It is believed that his records were lost or destroyed in that fire. However, the documents provided by the applicant are sufficient to conduct a fair and impartial review of this specific request.
3. The applicant provides two certificates of birth [in Spanish] that show his date of birth as XX Enero [January] 1932. Both were certified by the Florida Department of Veterans Affairs.
4. The applicant's DD Form 214 shows his date of birth as XX January 1930.
5. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. It states in paragraph 2-9, "The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence."
DISCUSSION AND CONCLUSIONS:
1. The Army has an interest in maintaining the accuracy of its records. Since the applicant's records are not available, it must be presumed that the data and information contained on his DD Form 214 reflects the conditions and circumstances that existed at the time the records were created.
2. The applicant is advised that a copy of this decisional document will be filed in his official military personnel file (OMPF). This should serve to clarify any questions or confusion regarding the date of birth he used while on active duty and satisfy the applicant's desire to have the birth date shown on his birth certificate recorded in his OMPF.
3. In view of the above, the applicant's request should be denied.
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) AR20100025761
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20110011905
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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