BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150017262 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150017262 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150017262 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 DD Form 214 (Report of Separation from the Armed Forces of the United States), for the period ending 11 May 1951, to show his date of birth (DOB) as "27 XXXX" instead of "26  XXXX." He also requests a personal appearance before the Board. 2. The applicant states, in effect, that the DOB shown on his DD Form 214 is not his actual DOB and this creates confusion. 3. The applicant provides his DD Form 214 and his Commonwealth of Puerto Rico Certification of Birth. 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 complete military records are not available to the Board for review. A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) in 1973. It is believed the applicant's records were lost or destroyed in that fire. However, his DD Form 214 and birth certificate are sufficient for the Board to conduct a fair and impartial review in this case. 3. The applicant's reconstructed record from the NPRC contains a WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge), which shows in: a. Item 5 (Component), the entry "AUS," confirming he was inducted into the Army of the United States, b. Item 10 (DOB), the entry "26 XXXX," indicating his day, month, and year of birth, and c. Item 22 (Date of Induction), the entry "15 February 1945," indicating he entered the Army at that time. 4. The applicant's WD AGO Form 53-55 shows he was honorably discharged on 2 February 1946. At the time of his discharge, he completed 11 months and 18 days of military service and the highest rank he attained during his period of service was private. 5. After a break in service, the applicant enlisted in the Regular Army on 19 August 1950. He served in military occupational specialty 4745 (Light Machine Gunner). 6. The applicant was honorably discharged on 11 May 1951, after completing 8 months and 23 days of net service for the period. Item 10 (DOB) of his DD Form 214 shows his DOB as "26 XXXX." 7. The applicant provides a copy of his birth certificate, issued on 5 1988, which shows his DOB as "27 XXXX." REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. War Department Technical Manual 12-236 (Preparation of Separation Forms), then in effect, and Army Regulation 635-5 (Separation Documents) prescribe the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. These regulations establish standardized policy for the preparation of the separation document. In pertinent part, they state the separation document is a synopsis of the Soldier's most recent period of continuous active duty and provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. 3. The government of Puerto Rico enacted a new birth certificate law (Law 191 of 2009, amended June 2010) to strengthen the issuance and usage of birth certificates, to combat fraud and protect the identity and credit of all people born in Puerto Rico. a. Starting 1 July 2010, the Puerto Rico Department of Health began issuing new, more secure birth certificates through the Vital Statistics Record Office. b. On 30 September 2010, the law invalidated all birth certificates issued before 1 July 2010. Until 30 September 2010, all birth certificates issued prior to 1 July 2010 remained valid. c. On 23 September 2010, the Governor of Puerto Rico signed Executive Order 2010-045 extending the validity of birth certificates issued before 1 July 2010 to 30 October 2010. DISCUSSION: 1. The applicant's request for correction of his DD Form 214 to show another DOB was carefully considered. 2. He provides a copy of his birth certificate that shows his DOB as "27  XXXX;" however, since his complete service records are not available, it is unclear what DOB he enlisted and served under. The NPRC had a reconstructed record that contained the applicant's 1946 WD AGO Form 53-55, which shows his DOB as "26 XXXX" and is the same DOB on his 1951 DD Form 214; the DOB he now contends is incorrect. 3. For historical purposes, the Army has an interest in maintaining the accuracy 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. While it is understandable that he desires to now record his correct DOB in his military records, there is not a sufficiently compelling reason for compromising the integrity of the Army’s records at this late date. 4. Therefore, lacking convincing independent and verifiable evidence to the contrary, it is presumed that the applicant’s DD Form 214 was correct at the time, and there is insufficient evidence to grant the requested relief in this case. 5. The applicant is advised that a copy of this decisional document will be filed in his reconstructed record. This should serve to clarify any questions or confusion regarding the difference in information recorded in his military record and to satisfy his desire to have the correct information documented in his record. 6. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017262 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017262 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2