IN THE CASE OF:	  

		BOARD DATE:	  5 April 2012

		DOCKET NUMBER:  AR20110019932 


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 (Report of Separation from the Armed Forces of the United States) to show his year of birth as 1932.

2.  The applicant states his records should be corrected to show his year of birth as 1932 instead of 1930 as reflected on his DD Form 214.  He states he enlisted in the National Guard when he was 15 years of age.  He also states he tried to get National Guard officials to make the correction, but they would not do it.  He states he is 70-percent service-connected disabled by the Department of Veterans Affairs (VA).  He receives care through the VA medical system and the VA charged his civilian heath care because of the discrepancy in his date of birth (DOB).

3.  The applicant provides copies of his DD Form 214 and birth 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 members' records at the National Personnel Records Center in 1973.  It is believed the applicant's 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 case.

3.  The applicant's DD Form 214 shows he was ordered to active duty in the rank of corporal on 16 January 1951 for a period of 24 months after serving 2 years, 10 months, and 28 days in the Alabama Army National Guard.  He was promoted to the rank of sergeant first class on 22 December 1951.

4.  He completed 6 months and 2 days of foreign service in Korea as an antiaircraft artillery automatic weapons chief with Battery C, 15th Antiaircraft Artillery Automatic Weapons Battalion (Self-Propelled).

5.  On 21 February 1952, he was honorably discharged at Fort Gordon, Georgia, in the rank of sergeant first class.  He completed 1 year, 1 month, and 5 days of active service.  His DD Form 214 issued at the time of his discharge reflects his DOB as 20 September 1930 which would indicate he was 21 years and 5 months of age.

6.  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.  Changes that occur subsequent to the date the DD Form 214 is issued are not authorized for entry on the DD Form 214.

7.  By Federal law (Title 10, U.S. Code, section 505), the minimum legal age for enlistment in the Armed Forces of the United States is 17 with parental consent and 18 without parental consent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DOB recorded  on his DD Form 214 should be changed to reflect that he was born in 1932 instead of 1930 has been noted and appears to lack merit.

2.  By the applicant's own admission, he enlisted in the National Guard when he was under the legal age for enlistment and it is only reasonable to presume that he did not reveal his actual DOB when he enlisted in the National Guard.

3.  Given the information contained on his DD Form 214 showing he completed 2 years, 10 months, and 28 days of service prior to being ordered to active duty on 16 January 1951, he would have been 18 years of age when he enlisted using the year of birth of 1930.  However, if the year of birth of 1932 was used, he would have been only 16 years of age and thus ineligible to enlist.

4.  In any event, it appears that he performed all of his service using 1930 as his year of birth.  Given the lack of available records, there is insufficient evidence to establish otherwise.

5.  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 actual 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.

6.  The applicant is advised that a copy of this decisional document which confirms his actual 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 actual 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 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 this action in no way diminishes the sacrifices made by him in service to the United States during the Korean 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)                                         AR20110019932



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ABCMR Record of Proceedings (cont)                                         AR20110019932



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