IN THE CASE OF: BOARD DATE: 11 May 2010 DOCKET NUMBER: AR20090018721 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 he served a period of active duty during the racial riots in Pittsburgh in the 1960's. 2. The applicant states the additional active duty is required in order for him to receive Department of Veterans Affairs (VA) health benefits. He states he was called to active duty for the racial riots in Pittsburgh and during the "truckers strike." He states his commander told him he would be eligible for VA benefits. 3. The applicant provides copies of his: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 19 May 1965 * decision letter from the VA Pittsburgh Healthcare System * notice of disagreement with the VA letter * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) with a date of discharge of 5 April 1970 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 military personnel records show he enlisted in the Pennsylvania Army National Guard (PAARNG) on 6 April 1964 for a period of 6 years. 3. The applicant was ordered to active duty for training (ACDUTRA) on 22 November 1964 for a period of 29 weeks. 4. The applicant was treated for a fracture of his jaw (right side) and injuries to the right side of his face. These injuries were determined to be in line of duty. He underwent surgery for these conditions on 10 and 12 March 1965, at Womack Army Hospital, Fort Bragg, NC. 5. The applicant completed basic combat and advanced individual training and he was awarded military occupational specialty 442.10 (Welder-Blacksmith). On 19 May 1965, he was honorably released from active duty and returned to the PAARNG. He had completed 5 months and 29 days of active service. 6. There is no evidence in the applicant's military personnel records jacket (MPRJ) that he was ordered to active duty for any other periods of service. 7. On 5 April 1970, the applicant was discharged from the PAARNG. 8. The letter, dated 6 September 2009, from the VA Pittsburgh Healthcare System notified the applicant that he did not meet the enrollment criteria because his active duty was for training. He submitted a "Notice of Disagreement" with the VA decision on 22 September 2009. DISCUSSION AND CONCLUSIONS: 1. The applicant contends he was ordered to active during the racial riots in Pittsburgh in the 1960's and a truckers strike. He contends he needs to show these periods of active duty in order to receive VA health benefits. 2. The applicant's records show he did have two operations for injuries he received in March 1965 while on ACDUTRA. 3. There is no evidence the applicant was ordered to active duty for any periods other than his period of ACDUTRA. 4. The ABCMR does not change records solely for the purpose of establishing eligibility for benefits from another agency. 5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that 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. _________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) AR20090018721 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090018721 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1