RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 27 February 2007
DOCKET NUMBER: AR20060006596
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
Ms. Wanda L. Waller
Analyst
The following members, a quorum, were present:
Mr. Ted Kanamine
Chairperson
Mr. Larry Bergquist
Member
Ms. LaVerne Douglas
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, in effect, that he receive additional creditable service to show he completed 20 years of active service.
2. The applicant states, in effect, that he had two 15-day active training periods in Ocean City, New Jersey, and that his weekend active duty days should equal at least two months and ten days.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a copy of his DA Form 2-1 (Personnel Qualification Record); and five 1973/1974 service personnel records.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which occurred on 25 September 1990. The application submitted in this case is dated 3 May 2006.
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 applicants failure to timely file.
3. Having prior active and inactive service in the Air Force, the applicant enlisted in the U.S. Army Reserve on 24 August 1973 for a period of 1 year. On
25 November 1974, he enlisted in the Regular Army for a period of 3 years. He remained on active duty through continuous reenlistments until he was retired on 25 September 1990 in the rank of sergeant first class by reason of permanent physical disability.
4. The applicants DD Form 214 shows that he completed 19 years, 10 months, and 16 days of creditable active service.
5. Until certain provisions of the law were changed in fiscal year 2004, a common misconception was that veterans could receive both a military retirement for physical unfitness and a Department of Veterans Affairs (VA) disability pension. Under the law prior to 2004, a veteran could only be compensated once for a disability. The new law does not apply to disability retirees with less than 20 years of service.
DISCUSSION AND CONCLUSIONS:
1. Although the applicant contends that he is entitled to additional creditable service, there is insufficient evidence of record to show that all of the applicants service was not accounted for on his DD Form 214.
2. It is noted that the applicant also contends that his weekend active duty days should equal at least two months and ten days. If he is referring to his weekend drills, it is more likely that those days were inactive duty days. However, if the applicant still believes that he is entitled to additional Reserve service, he may apply to the Veterans Support Branch, Human Resources Command (HRC), ATTN: AHRC-PAV-V, 1 Reserve Way, St. Louis, Missouri 63132-5200. That office will need to see supporting documentation. He should consider first contacting the Defense Finance and Accounting Service for assistance in obtaining pay records from the period in question to determine if his pay records can verify additional Reserve service.
3. The available evidence of record shows that the applicant completed 19 years, 10 months, and 16 days of creditable active service. In the absence of a chronological statement of retirement points for his U. S. Army Reserve and/or other Reserve service, there is no basis for granting his request.
4. Records show the applicant should have discovered the alleged error now under consideration on 25 September 1990; therefore, the time for the applicant to file a request for correction of any error expired on 24 September 1993. 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
TK_____ __LB____ __LD____ 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.
__Ted Kanamine________
CHAIRPERSON
INDEX
CASE ID
AR20060006596
SUFFIX
RECON
DATE BOARDED
20070227
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
113.0000
2.
3.
4.
5.
6.
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