BOARD DATE:	  12 May 2015

		DOCKET NUMBER:  AR20140017262 


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 the military records of a deceased former service member (FSM), who was killed in action in 1969, be corrected to show her brother, Leonard Jr., as the FSM's son. 

2.  The applicant states when their father, the FSM, died on 13 August 1969 in Vietnam, her brother should have been recognized as his son.  Due to the military's mistake, this was not documented.  She was told the record could not be corrected with a birth certificate and the Army required more proof. On 
26 April 2014, a DNA test was conducted and the results recorded a 99 percent probability that they share the same father.  The record reflects they are half siblings with the same father but different mothers.

3.  The applicant provides:

* Her (Lenora) certificate of live birth
* Leonard's certificate of birth
* FSM's certificate of live birth
* DNA Test Report
* FSM's widow’s certificate of death 

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 FSM's records show he was born on 13 February 1947.  In connection with his induction into the Army of the United States, the FSM completed a 
DD Form 398 (Statement of Personal History).  He did not list a spouse or children but listed his family members as follows: 

* Luis, father, deceased
* Beatrice Marez, mother, resided in California the time
* Philip, brother, resided in California at the time
* Virginia, Delores, Esther, Violet, and Gloria, all sisters residing in California at the time 

3.  The FSM was inducted into the Army of the United States on 25 July 1968.  He was trained in and held military occupational specialty 11B (Light Weapons Infantryman). 

4.  He served in Vietnam from 21 January 1969 to 12 August 1969.  He was assigned to Company D, 2nd Battalion, 7th Cavalry. 

5.  On 29 January 1969, he completed a DD Form 41 (Record of Emergency Data).  He listed in:

* Item 11 (Name and Address of Spouse, Father, Mother, and Children), he was single, father (Louis) was deceased, and mother Beatrice Marez
* Item 13 (Adult next of kin to be notified not named in item 11), None
* Item 14 (Beneficiary for gratuity pay if no surviving spouse or child; indicate percent for each), he listed his mother, as shown in item 11, with a 100 percent share 
* Item 15 (Beneficiary for unpaid pay and allowances including Soldier's deposits, indicate percentage), he listed "DO" meaning the same as item 14
* Item 16 (Person to receive allotment if missing, indicate percentage), he listed "DO" meaning the same as item 14

6.  The FSM was killed in action on 12 August 1969 in Vietnam.
7.  On 15 August 1969, by Western Union telegram and an official Army message, the FSM's mother, Beatrice Marez, was notified of his death.

8.  On 19 August 1969, the Secretary of the Army or a designee issued a 
DD Form 1300 (Report of Casualty) indicating the applicant had been killed in action and that Mrs. Beatrice Marez, identified as his mother, was the interested person (i.e. next of kin).  She had been notified of his death on 15 August 1969. 

9.  On 15 December 1969, by letter addressed to the FSM's mother, Beatrice, The Adjutant General informed her of the FSM's multiple awards and decorations. 

10.  The applicant provides: 

	a.  Her (Lenora) certificate of live birth, dated 24 September 2014, indicating she was born on 1 October 1968, to Bonita (mother) and Leonard (FSM/father). 

	b.  Her brother's (Leonard Jr) certificate of live birth, dated 25 February 2014, showing he was born on 27 March 1968 to Francisca (mother) and Leonard (FSM/father). 

	c.  DNA Test Report, dated 26 April 2014, showing Leonard and Lenora have a combined siblings index of 97 percent and the probability that they are half siblings is 99 percent. 

	d.  Death certificate, dated 6 June 2011, indicating Beatrice Marez died on that date.  The informant is listed as Violet, her daughter. 

DISCUSSION AND CONCLUSIONS:

1.  The FSM was inducted into the Army of the United States on 25 July 1968 and he was killed in action in Vietnam on 12 August 1969.  During his active service, he listed his mother as his next of kin.  No children were disclosed by the FSM or listed anywhere on his military records.

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.

3.  There are no documents in the FSM's service record that could be corrected to show his children's names on any military document without him initiating such document.  The only document that could be corrected is the DD Form 1300 that was generated by the Army following the FSM's death. 

4.  Although there are no errors in the FSM's records, there is no harm to the Army or the FSM if the FSM's DD Form 1300 is updated to reflect the applicant's name as well as that of her brother's (without designating them as the next of kin, beneficiaries for death gratuity, or beneficiaries for unpaid leave). 

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 adding the names of the applicant (Lenora) and her brother (Leonard) to the FSM's DD Form 1300 (without designating them as the next of kin, beneficiaries for death gratuity, or beneficiaries for unpaid leave).



      _________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)                                         AR20140017262





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ABCMR Record of Proceedings (cont)                                         AR20140017262



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