BOARD DATE:	  28 August 2014

		DOCKET NUMBER:  AR20140000951 


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 official military personnel file by changing his date of birth from 15 December 1947 to 15 December 1946.

2.  He states that his birth certificate indicates his date of birth as 15 December 1946.  This was noted upon retirement from the U.S. Army Reserve.

3.  He provides his:

* California Commercial Driver License
* DD Form 2 (Retired) (United States Uniformed Services Identification 
   Card)
* a document that he refers to as his birth certificate, but is actually a letter 
	that certifies his date of baptism

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 record shows he was inducted into the Army of the United States on 6 December 1967.  His DD Form 47 (Record of Induction) shows his date of birth as 15 December 1947, as do the following documents:

* DD Form 398 (Statement of Personal History)
* DD Form 1584 (National Agency Check Request)
* DA Form 2784 (Request for and Results of Personnel Security Action)

3.  He served on active duty for a period of 2 years prior to being released from active duty on 5 December 1969 with an honorable characterization of service and transferred to USAR Control Group (Annual Training).  Item 4 (Date of Birth) of the DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows his date of birth as 15 December 1947.  He authenticated this document with his signature in item 32 (Signature of person being transferred or discharged).

4.  The applicant had a break in service from 6 December 1973 to 17 May 1979.

5.  On 18 May 1979, he accepted a commission as an officer in the USAR.  He entered active duty on 31 May 1979 and served until he was released from active duty and transferred to the USAR Control Group (Reinforcement) on 1 July 1990.  Item 5 (Date of Birth) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows his date of birth as 15 December 1947.

6.  On 12 June 2003, the applicant completed a DD Form 2656 (Data for Payment of Retired Personnel) and a DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate) wherein he entered his date of birth as 15 December 1947 and authenticated both documents with his signature.

7.  U.S. Army Human Resources Command, St. Louis, MO, Orders P12-795602, dated 4 December 2007, show the applicant was retired and placed on the retired list on 15 December 2007 based upon reaching the age of 60.

8.  A thorough review of every document contained in his available military personnel record, many of which bear his signature, shows that his date of birth consistently appears as 15 December 1947.


9.  The applicant provides:

* California Commercial Driver License, issued 13 February 2013, that
   shows his date of birth as 15 December 1946
* DD Form 2, issued 14 February 2013
* a letter, written in Spanish, that certifies he was baptized on 15 December 
	1946

10.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for the preparation of the DD Form 214.  It stated that the DD Form 214 was a synopsis of the Soldier’s most recent period of continuous active duty.  It provided a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

11.  The U.S. Supreme Court's opinion in United States v. Larionoff, 431 US 864 (1977) determined in part, that in the absence of specific statutory authority, the government is not liable for negligent or erroneous acts of its agents.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that upon his induction into the Army, the applicant listed his DOB as 15 December 1947.  This DOB is consistent with the DOB listed on all personnel documents throughout his military service.

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.  While it is understandable the applicant desires to have the DOB that he currently uses recorded on his DD Form 214 there is not a sufficiently compelling reason for compromising the integrity of the Army's records at this late date.

3.  The fact that the applicant was issued a DD Form 2 (Retired) on 14 February 2013 which shows his date of birth as 15 December 1946 is duly noted.  However, it appears that entry was made erroneously and the U.S. Supreme Court has previously opined that in the absence of specific statutory authority, the government is not liable for negligent or erroneous acts of its agents.



4.  The applicant is advised that a copy of this Record of Proceedings will be filed in his official military personnel file.  This should clarify any questions or confusion in regard to the difference in the date of birth recorded in his military record and to satisfy his desire to have the date of birth he now uses documented in his official record.

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 that 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)                                         AR20140000951





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ABCMR Record of Proceedings (cont)                                         AR20140000951



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