IN THE CASE OF: BOARD DATE: 22 July 2008 DOCKET NUMBER: AR20080006239 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 that her husband's, a former service member (FSM), WD AGO Form 53-55 (Enlisted Record and Report of Separation, Honorable Discharge) with a date of 7 January 1946 be corrected to show the FSM's correct race, marital status, and citizenship. 2. The applicant states that her husband's WD AGO Form 53-55 is incorrect. She states Item 18 (Race) should be marked "White," Item 19 (Marital Status) should be marked "Single," and Item 20 (U.S. Citizen) should be marked "Yes." 3. The applicant provides a copy of the FSM's birth certificate, WD AGO 53-55, and death certificate. She also provides a copy of their marriage certificate and a photograph of the FSM. 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 military personnel records were not available and may have been lost or destroyed in a fire at the National Personnel Records Center in 1973. The only records available to the Board is a Final Payment - Work Sheet and documents provided by the applicant. The primary military personnel record available to this Board was the WD AGO Form 53-55 (Enlisted Record and Report of Separation, Honorable Discharge) with a date of separation of 7 January 1946 submitted by the applicant. 3. The FSM's WD AGO 53-55 shows he was inducted and placed into active service on 16 September 1943 at the age of 20. He served in the European Theater of Operations during the period from 17 April 1944 to 29 December 1945. 4. On 7 January 1946, the FSM was released from active duty by reason of demobilization. He had completed 2 years, 3 months, and 22 days of active service that was characterized as honorable. The FSM's WD AGO 53-55 shows the following entries: Item 11 (Place of Birth) - Scott, Ohio, Item 18 - an "x" indicates race as "Negro," Item 19 - an "x" indicates marital status as "Married," and Item 20 - an "x" indicates U.S. Citizenship as "No." 5. A State of Ohio, Bureau of Vital Statistics Certificate of Birth show the FSM was born in Ohio on 24 December 1922. The certificate shows his father's race as "white" and his birthplace as Laurel County, Kentucky. The certificate shows his mother's race as "white" and her birthplace as Paulding County (Ohio). 6. A marriage certificate shows the applicant and the FSM were married on 14 October 1946 in Angola, Indiana. 7. The Ohio Department of Health Vital Statistics Certificate of Death for the FSM shows his race as "white." The Certificate of Death also shows the FSM's place of birth as Scott, Ohio. 8. The Final Payment - Work Sheet does not show whether or not the FSM was married at the time of his release from active duty on 7 January 1946. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that Items 18, 19, and 20 of the FSM's WD AGO 53-55 are incorrect. 2. The FSM's birth certificate reflects the race of his father and mother as "white." The FSM's death certificate shows his race as "white." Therefore, there is sufficient evidence to change Item 18 of his WD AGO 53-55 to reflect "white." 3. The FSM's birth certificate shows he was born in Ohio and his father and mother were born in the United States. The FSM's WD AGO 53-55 and death certificate show his place of birth as Scott, Ohio. Therefore, there is sufficient evidence to change Item 19 of his WD AGO 53-55 to show he was a U.S. citizen. 4. The Final Payment - Work Sheet does not provide evidence of the FSM's marital status at the time he was released from active duty. The applicant and the FSM were married 9 months after his release from active duty. There is insufficient evidence showing this was his first marriage. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF __X_____ ___X____ ___X___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the following items on his WD AGO 53-55: a. Item 18 - change to reflect FSM's race as "white" instead of "Negro"; and b. Item 20 - change to reflect "Yes" for U.S. Citizenship instead of "No." 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to the FSM's marital status. _ ___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) AR20080006239 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080006239 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1