BOARD DATE: 5 September 2013
DOCKET NUMBER: AR20130015901
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 her uncle's (a former service member (FSM)) WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) to show his year of birth as "1918" instead of "1919."
2. The applicant states the year of birth shown on the FSM's WD AGO
Form 53-55 is incorrect and is different from the year of birth shown on his birth certificate and on record at the Social Security Administration. She further states he currently resides in an assisted living facility and as a result of his rapidly declining health, he has been deemed in need of critical/skilled medical care which requires him to be moved from his present location to a skilled nursing facility equipped and staffed to treat his condition. A bed has been secured for him at the Georgia War Veterans home, but due to the error on his WD AGO Form 53-55, he cannot be admitted until the birth date is corrected.
3. She provides:
* a Power of Attorney
* a letter from a doctor
* an inquiry from Constituent Services Representative for a Member of Congress
* FSM's WD AGO Form 53-55
* the FSM's Warren County, NC, Office of Registration of Deeds, Certified Certificate of Birth
* a letter from the Social Security Administration, Augusta, GA
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 FSM's military record is 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 his records were lost or destroyed in that fire. However, there were sufficient documents available for the Board to conduct a fair and impartial review of this case. This case is being considered using the aforementioned documents submitted by the applicant.
3. The FSM's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 31 January 1942. This form also shows that during World War II, he deployed to the Asiatic-Pacific Theater and participated in three campaigns.
He was honorably discharged on 12 January 1946. His year of birth is shown as "1919" on this form.
4. The applicant provides the FSM's birth certificate, initially filed on 16 October 1918, which shows his year of birth as "1918."
5. The applicant provides a letter from the Social Security Administration, dated 9 June 2011, which shows their records show his year of birth as "1918."
6. War Department Technical Manual 12-236 (Preparation of Separation Forms), in effect at the time of the FSM's separation, provided the procedures to be followed in the separation of enlisted personnel from active service and described the proper method of execution and disposition of the various forms, records, and reports required. In pertinent part, this manual stipulated that the WD AGO Form 53-55 was to be completed based upon interviewing the Soldier and referring to all available records regarding the period of service to be covered by the forms. It established standardized policy for the preparation of the WD AGO Form 53-55. It stated that the date of birth of the separating Soldier would be entered on the form.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that the FSM's WD AGO Form 53-55 should be corrected to change his year of birth from "1919" to "1918" was carefully considered.
2. In view of the fact that the FSM's service record is unavailable, there is no way to determine which year of birth he used during his period of service. Although the FSM's year of birth appears as "1919" on the WD AGO Form 53-55 issued to him at the time of separation, his birth certificate and letter from the Social Security Administration both clearly show his birth year was "1918." It is not unreasonable to presume a typographical error was made when preparing his WD AGO Form 53-55.
3. Therefore, the FSM's birth certificate is accepted as sufficient evidence to warrant a correction of his WD AGO Form 53-55 to show his year of birth as "1918."
BOARD VOTE:
__x___ __x______ ___x_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his WD AGO Form 53-55 to show his year of birth as "1918" as it is depicted on his Certified Certificate of Birth.
_______ _ 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.
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