RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 27 July 2004
DOCKET NUMBER: AR2004100245
I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.
| |Mr. Carl W. S. Chun | |Director |
| |Mr. G. E. Vandenberg | |Analyst |
The following members, a quorum, were present:
| |Mr. Melvin H. Meyer | |Chairperson |
| |Mr. Thomas E. O'Shaughnessy, Jr. | |Member |
| |Ms. Eloise C. Prendergast | |Member |
The applicant and counsel if any, did not appear before the Board.
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion,
if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that he be issued a DD Form 214 (Report of
Transfer or Discharge) for the period 28 February 1974 through 19 May 1975.
2. The applicant states that he was ordered to active duty for the period
of 28 February 1974 through 19 May 1975 and has been attempting to have his
records corrected for 28 years. He states that the only reply he received
was a letter that stated the period 28 February 1974 through 19 May 1975,
was less than 89 days; therefore, a DD Form 214 was not authorized.
3. The applicant provides 13 pages of documents from his military file
relating to his service.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which
occurred on 30 July 1975, the date of orders releasing him from the Army
Reserve (USAR). The application submitted in this case is dated 6 November
2003.
2. 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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so. In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.
3. The records show that the applicant enlisted in the USAR on 13 July
1968. On 18 November 1968, he entered his initial active duty for
training; he completed basic and advanced individual training, and was
released from active duty on 27 March 1969. On 30 July 1974 the applicant
extended his USAR enlistment through 30 July 1975.
4. The applicant's DA Form 20 (Enlisted Qualification Record) indicates he
served with Battery C, 3rd Battalion 75th Artillery Regiment, Jefferson
City, Missouri from 28 March 1969 through 30 July 1975. It is indicated
that he served on annual active duty for training each year from 1969
through 1973. The form gives no indication of his status for 1974 and
1975.
5. The applicant's medical records indicate that on 12 July 1973, while on
active duty for training, he sustained an injury to his shoulder. A line
of duty investigation determined that the injury was in the line of duty
(LOD).
6. On 12 March 1974, the applicant's unit commander submitted a request to
place the applicant on active duty due to the injury to the applicant's
shoulder. The request indicated that the applicant had sustained a LOD
injury on 12 July 1974 and was receiving treatment at General Leonard Wood
Army Hospital, Ft. Leonard Wood, Missouri. It indicated that the applicant
was entitled to continuation of pay and allowances.
7. The record contains a series of Letters of Instruction from General
Leonard Wood Army Hospital that the state that the applicant was diagnosed
as suffering from degenerative joint disease of the right acromioclavicular
joint which had occurred in the LOD. They indicate he had been
hospitalized at General Leonard Wood Army Hospital from 27 February 1974
through 2 March 1974, and again for an undisclosed period ending 19 October
1974.
8. The record contains Letters of Instruction indicating he was treated
and placed in a convalescent status as follows:
4 March 1974 for 12 days; 14 March 1974 for 21 days; 4 April 1974 for
32 days; 6 May 1974 for 6 weeks; 18 June 1974 for 7 weeks; 5 August
1974 for 63 days; 8 October 1974 for 8 days; 19 October 1974 for
10 days; 29 October 1974 for 7 days; 5 November 1974 for 7 days;
12 November 1974 for 10 days; 22 November 1974 for 26 days;
19 December 1974 for 29 days; 22 January 1975 for 59 days; and
17 March 1975 for 59 days.
9. Each Letter of Instruction noted that pay and allowances were to be
continued under DoD Pay Manual, paragraph 80254.
10. The applicant's unit certified that the applicant was a patient for
the months of February 1974 through January 1975.
11. On 12 January 1975, the applicant's command requested that some type
of decision be made on the applicant's case. The commander indicated that
it had been 1 1/2 years since the injury and the Army had refused to
compensate him for the injury. The commander indicated that the applicant
was unable to work and that his record contained copies of 15 Letters of
Instruction from the hospital, 15 certificates of injury, a request for
active duty orders with 13 endorsements, and other documents showing that
the unit had attempted to comply with all requests and regulations.
12. No formal response to the above request is of record. However, the
record contains copies of military pay vouchers showing that the applicant
received full pay and allowances for the period 27 February 1974 through 31
March 1975.
13. Headquarters, Fifth Army, Fort Sam Houston, Texas Letter Orders Number
07-1199, dated 8 July 1975, indicates that the applicant was discharged
from the USAR Ready Reserve effective 30 July 1975. The reason for
discharge is shown as Expiration of Term of Service.
14. On 24 April 1978, the Battery C, 3rd Battalion 75th Artillery
Regiment, Jefferson City, Missouri, unit commander submitted a request for
a DD Form 214 on behalf of the applicant. In that request the commander
indicated that the applicant had been ordered to active duty for the period
28 February 1974 through 19 May 1975, due to injuries and treatment
received in the line of duty during his 1973 annual training.
15. A 30 January 1979 Reserve Components Personnel and Administration
Center, St. Louis, Missouri, letter to the applicant states that a DD Form
214 is only "issued upon completion of 89 or more consecutive days of
active duty. Therefore, you are not authorized a DD Form 214 for 27 Feb 74
to 19 May 75, when you were separated."
16. The applicant's medical records show he was unable to perform his
civilian job and was forced to quit due to the shoulder injury. It also
shows that the applicant had surgery on his shoulder in early 1975.
17. Department of Defense Directive 5154.13 (Military Pay Manual)
paragraph 80254, Disability Entitlements for Reserve Forces, provides
payments to personnel in non-pay status equal to that which he would
receive if in a duty for pay status.
DISCUSSION AND CONCLUSIONS:
1. The record shows that the applicant was in a non-pay status from 27
February 1974 through 19 May 1975 and in receipt of continuation of pay,
based on his medical care, not active duty pay.
2. The record does not contain any orders placing the applicant on active
duty and the preponderance of evidence indicates that the applicant was in
an inactive duty status.
3. Since the applicant was not in an active duty status, issuance of a DD
Form 214 is not appropriate.
4. Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 July 1975; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 29 July 1978. However, the applicant did not file within the 3-
year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.
BOARD VOTE:
________ ________ ________ GRANT RELIEF
________ ________ ________ GRANT FORMAL HEARING
__MHM _ __TEO___ __ECP__ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that 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.
2. As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law. Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.
______________________
CHAIRPERSON
INDEX
|CASE ID |AR2004100245 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20040727 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION | |
|REVIEW AUTHORITY | |
|ISSUES 1. |100 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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