RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 September 2005
	DOCKET NUMBER:  AR20050001198 


	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. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. Robert L. Duecaster

Member

Ms. Jeanette R. Mccants

Member

	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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his correct time in service.

2.  The applicant states, in effect, that he served in the U.S. Army Transportation Corps.  He further states that he trained (Boot Camp) at New Orleans, Louisiana in late November 1944 prior to him being assigned to a vessel.  He states that the DD Form 214 he received on 14 January 2000 does not reflect his service while in training. 

3.  The applicant provides an undated self-authored letter; a letter from the U.S. Department of Transportation, dated 20 April 1994; and a picture of the applicant in a U.S. Army Transportation Corps uniform.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 14 January 2000, the date he received his DD Form 214.  The application submitted in this case is dated 9 January 2005.

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 limitations 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 applicant did not initially have military records.  This case is being considered using a constructed record, which primarily consists of his DD Form 214; five War Department Notification of Personnel Action forms; and a Department of Transportation, Maritime Administration letter dated 20 April 1994.

4.  The applicant's DD Form 214 with the ending period 2 July 1946 shows in item 12a that he entered active duty on 30 November 1945.  Item 12f (Foreign Service) shows the entry "4 months 24 days."




5.  Item 18 shows he served aboard the USA Freedom Ship-217 during the period 30 November 1945 through 25 December 1945.  He served aboard the Saint Olaf during the period 1 January 1946 through 8 March 1946.  He served aboard the General H. F. Hodges during the period 13 May 1956 (sic) through
2 July 1946.  He was honorably discharged on 2 July 1946.

6.  In a decision, dated 19 January 1988, the Secretary of the Air Force made a determination (based on the recommendation of the Department of Defense Civilian/Military Service Review Board and the memoranda and orders, dated 16 July and 5 October 1987, by the United States District Court for the District of Columbia in the case of Schumacher et al versus Aldridge) that the “American Merchant Marine Who Were in Active Oceangoing Service during the Period of Armed Conflict, 7 December 1941 to 15 August 1945, shall be considered active duty for the purposes of all laws administered by the Veterans Administration.”  The decision further stated that to receive recognition, each member of the “American Merchant Marine Who Were in Active Oceangoing Service during the Period of Armed Conflict, 7 December 1941 to 15 August 1945,” must meet the following eligibility criteria: 
 
	1.  Was employed by the War Shipping Administration or Office of Defense Transportation or their agents as a merchant seaman documented by the U.S. Coast Guard or Department of Commerce (Merchant Mariner’s Document/Certificate of Service), or as a civil servant employed by the U.S. Army Transport Service (later redesignated U.S. Army Transportation Corps, Water Division) or the Naval Transportation Service; and 
 
	2.  Served satisfactorily as a crew member during the period of armed conflict, 7 December 1941 to 15 August 1945, aboard
 
		(a)  merchant vessels in oceangoing, i.e., foreign, intercoastal, or coastwise service (46 USCA 10301 & 10501) and further include “near foreign” voyages between the United States and Canada, Mexico, or the West Indies via ocean routes, or 
 
		(b)  public vessels in oceangoing service or foreign waters.”
 
7.  The decision regarding “American Merchant Marine Who Were in Active Oceangoing Service during the Period of Armed Conflict, 7 December 1941 to 15 August 1945,” stipulated that a Certificate of Release or Discharge from Active Duty and a Discharge Certificate, or an Honorable Service Certificate or Report of Casualty, shall be provided to each qualifying member of the Merchant Marine, the U.S. Army Transport Service, and the U.S. Naval Transportation Service upon receipt of application from the member and upon verification of creditable service in accordance with service directives.  Total active duty service shall be the summation of each foreign, near foreign, coastwise, and inter-coastal voyage within the period of armed conflict of World War II.  Inclusive dates of each creditable voyage shall be reflected on the DD Form 214.  

8.  In the processing of this case an advisory opinion was obtained from the U.S. Army Human Resources Command, St. Louis.  The advisory opinion notes that, per Public Law (PL) 95-202 and PL 368, credit is not authorized for school or training periods in preparation for service in the U.S. Army Transportation Corps. The opinion further stated that the applicant's DD Form 214 was correct in that 30 November 1945, the date he was assigned to his first vessel, was the correct date he entered active duty in the U.S. Transportation Corps.

9.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He rebutted that he served aboard the USA Freedom Ship-217 after completing training in December 1944, and sailed on her until 21 November 1945. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DD Form 214 verifies that he served aboard three different sea vessels and that he was given 4 months and 24 days of Foreign Service credit while serving in the U.S. Army Transportation Corps.  His contention in his rebuttal was he was assigned to the ship in December 1944.  However, the earliest evidence available shows he was assigned to it in November 1945.  The United States District Court for the District of Columbia in the case of Schumacher versus Aldridge shows that only documented service on a vessel was considered creditable for Foreign Service and not training.  Therefore, the entry on his DD Form 214 that shows 4 months and 24 days of Foreign Service is correct.

2.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 14 January 2000.  Therefore, the time for the applicant to file a request for correction of any error or injustice expired on.  13 January 2003.  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 FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__SLP_ _  _RLD ___  __ JRM _  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.




____ Shirley L. Powell ___
          CHAIRPERSON




INDEX

CASE ID
AR20050001198
SUFFIX

RECON

DATE BOARDED
13 September 2005
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
120.0000.0000
2.

3.

4.

5.

6.