IN THE CASE OF:
BOARD DATE: 12 November 2008
DOCKET NUMBER: AR20080005846
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 that his World War II service in the Merchant Marine be considered military active duty service for purpose of recalculating his retired pay.
2. The applicant states that he served 1 year, 2 months, and 14 days between
27 November 1945 and 2 March 1946. He also served 1 year, 6 months, and
2 days between 29 October 1943 and 30 April 1945. This additional service time would increase his retired pay.
3. The applicant provides copies of his 30 June 1976 DD Form 214 (Report of Separation from Active Duty); his 6 April 1976 retirement orders; two DD Forms 214 showing service in the "USCG-Merchant Marine"; Honorable Discharge Certificates for those periods; and a letter from the Commanding Officer, U.S. Coast Guard National Maritime Center, Arlington, VA dated 14 July 2003.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was honorably retired as a United States Army Reserve Chief Warrant Officer Four on 30 June 1976. He had 23 years, 5 months, and 3 days total active duty service at the time of separation.
3. Item 18 (Remarks) of the DD Form 214 from the Merchant Marine for the period ending 30 April 1945 states, "THIS DOCUMENT, ISSUED UNDER THE PROVISIONS OF PUBLIC LAW 95-202 (38 USC 106 NOTE), ADMINISTRATIVELY ESTABLISHES ACTIVE DUTY SERVICE FOR THE PURPOSES OF DEPARTMENT OF VETERANS AFFAIRS BENEFITS."
4. Item 18 of the DD Form 214 from the Merchant Marine for the period ending
2 March 1946 states, "THIS DOCUMENT, ISSUED UNDER PUBLIC LAW
105-368 (46 USC CHAPTER 112), ADMINISTRATIVELY ESTABLISHES ACTIVE DUTY SERVICE SOLELY FOR BENEFITS UNDER CHAPTER 23 (RELATING TO BURIAL BENEFITS) AND CHAPTER 24 (RELATING TO INTERMENT BENEFITS) OF TITLE 38 UNITED STATES CODE
. THE PERIOD OF SERVICE SHOWN IN BLOCK 12D [TOTAL PRIOR ACTIVE SERVICE] ABOVE RECORDS SERVICE PREVIOUSLY DETERMINED UNDER PUBLIC LAW 95-202 (38 USC 106 NOTE) TO ESTABLISH ACTIVE DUTY SERVICE FOR THE PURPOSES OF DEPARTMENT OF VETERANS AFFAIRS BENEFITS."
5. The 14 July 2003 letter from the Commanding Officer, U.S. Coast Guard National Maritime Center states in pertinent part, "The enclosed DD Form 214 is an important record. Please safeguard it. It can be presented to a Department of Veterans Affairs representative for a determination of benefit entitlements." It also states, "In reviewing the mariner's record we note that it also documents qualifying sea service under Public Law 105-368, the Veterans Programs Enhancement Act of 1998. That act provides only burial and interment
."
6. Public Law 95-202 provided provisions that allowed the service of any person in a group (Merchant Marine) which rendered service to the Armed Forces of the United States in a capacity considered civilian employment or contractual service at the time such service was rendered to be considered active duty for the purposes of all laws administered by the Secretary of Veterans Affairs.
DISCUSSION AND CONCLUSIONS:
1. The DD Form 214 issued to the applicant under Public Law 95-202 administratively establishes active duty service for the purpose of eligibility for Department of Veterans Affairs benefits. The DD Form 214 issued to the applicant under Public Law 105-368 administratively establishes active duty service solely for the purpose of burial and interment benefits. These laws did not authorize the respective active duty service to be creditable for retired pay computation purposes. Therefore, is no basis to support crediting this time for computation of retired pay.
2. 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 this 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) AR20080005846
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ABCMR Record of Proceedings (cont) AR20080005846
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