IN THE CASE OF:	  

		BOARD DATE:	        13 January 209

		DOCKET NUMBER:  AR20080009619 


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 military records to show his correct date of birth (DOB).

2.  The applicant states that his correct DOB is 11 November 1941.  He gave the incorrect DOB when he entered the service

3.  The applicant provides a Commonwealth of Puerto Rico Department of Public Health, Certificate of Birth, dated 11 March 2002.

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 was inducted into the Army of the United States on 7 January 1959 with a DOB of 14 July 1940.  
3.  All documents in the applicant’s service records show his DOB as 14 July 1940. 

4.  On 30 June 1979, the applicant retired.  His DD Form 214 (Report of Separation from Active Duty) with the period ending 30 June 1979 shows his DOB as 14 July 1940.

5.  The applicant provided an official birth certificate issued by the Commonwealth of Puerto Rico Department of Public Health to verify that his DOB is 11 November 1941.

6.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for preparation of the DD Form 214.  In pertinent part it states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  Each entry is verified from the official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DOB on his DD Form 214 is incorrect and should be changed.

2.  The evidence shows the DOB entered on the applicant's DD Form 214 is verified by his entire service record.  He reported his DOB as 14 July 1940 throughout his service.

3.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The date and information contained in those records should actually 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, this Board is reluctant to recommend that those records be changed.  The applicant reported his DOB as 14 July 1940 throughout his time in the service and signed his DD Form 214 attesting to its accuracy.  As such, he has not provided sufficient evidence to support changing his DOB in his official record.  

4.  A copy of this Record of Proceedings and the applicant’s Certification of Birth will be placed in his official record in order to clarify his birth date; however, his DD Form 214 will not be changed.

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

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.



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      _______ _   _______   ___
               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)                                         AR20080009619



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ABCMR Record of Proceedings (cont)                                         AR20080009619



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