IN THE CASE OF:	  

		BOARD DATE:	        06 JANUARY 2009

		DOCKET NUMBER:  AR20080017300 


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, the widow of a deceased former service member (FSM), requests that the records of her late husband be corrected by crediting him with 4 years of United States (US) Coast Guard (Merchant Marine) service during World War II and that her annuity pay be recalculated accordingly.

2.  The applicant states that 1 1/2 years ago, after the death of her husband, she discovered that the FSM was never correctly paid and that her annuity pay is incorrect.  She states that he should have been given credit for his wartime years in the Merchant Marine.  She states that the FSM was issued new discharge papers from the US Coast Guard and that she has sent a packet of proof of his service to the Defense Finance and Accounting Service.

3.  The applicant provides in support of her application a letter addressed to the Army Review Boards Agency (ARBA), Support Division, dated 2 April 2008; a copy of her US Uniformed Service Identification Card; a copy of her Driver License; the FSM's Certificate of Death; a copy of the FSM's US Coast Guard Honorable Discharge Certificate; a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214) for the period ending 15 August 1945; a copy of his DD Form 214 for the period ending 30 September 1968; a copy of a III Corps and Fort Hood, Texas, Casualty Assistance Center, Fax Cover Sheet; a copy of a letter addressed to her, from a Member of Congress, dated 8 February 2007; and a copy of a letter addressed to a Representative in Congress from ARBA, Support Division, dated 12 March 2008.


CONSIDERATION OF EVIDENCE:

1.  The applicant has provided a copy of FSM's DD Form 214 that shows that he served as a Merchant Marine from 29 October 1943 through 15 August 1945.  Block number 18 (Remarks) on the DD Form 214 reads "THIS DOCUMENT, ISSUED UNDER THE PROVISIONS OF PUBLIC LAW 95-202 (38 USC 106 NOTE), ADMINISTRATIVELY ESTABLISHED ACTIVE DUTY SERVICE FOR THE PURPOSES OF DEPARTMENT OF VETERANS AFFAIRS BENEFITS.  The DD Form 214 also shows that he was released from the Merchant Marine on 15 August 1945.

2.  The Honorable Discharge Certificate that the applicant has submitted in support of her application shows that the FSM was honorably discharged from the United States Coast Guard on 15 August 1945 and that the discharge certificate was issued pursuant Public Law 95-202 and/or Public Law 105-368 for service in the American Merchant Marine between 7 December 1941 and 31 December 1946.

3.  On 30 June 1948, the FSM enlisted in the Regular Army (RA) in Portsmouth, Virginia, for 3 years, in the pay grade of E-1.  He successfully completed his training as a clerk typist.  After completing 1 year, 8 months and 4 days of total active service, the FSM was honorably released from active duty 3 March 1950, under the provisions of Army Regulation 615-362, due to dependency.

4.  The FSM reenlisted in the RA for 6 years on 29 May 1950 and he remained on active duty through continuous reenlistments.

5.  After completing 20 years, 3 months and 1 day of total service for basic pay purposes and 20 years and 6 days of total active service, the FSM retired from the RA on 30 September 1968.  

6.  The Certificate of Death that the applicant submitted in support of her application shows that the FSM died on 22 May 2006.

7.  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 1987 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, December 7, 1941, to August 15, 1945, shall be considered active duty for the purposes of all laws administered by the Veterans Administration.”
8.  Department of Defense Military Pay and Allowances Entitlements Manual, Part One (Basic and Special Pay), Chapter 1, Paragraph 10101 (Service Creditable), states that basic pay varies with the number of years' service a member has credited and it provides a list of creditable service organizations.  The Merchant Marine is not listed therein as a creditable service organization when computing cumulative years of service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM should have been given 4 years of credit for his wartime service as a Merchant Marine and that her annuity pay should be corrected to reflect that credit.

2.  However, according to a decision made by the Secretary of the Air Force and documentation by the United States District Court, American Merchant Marine who were in active oceangoing service during the period of armed conflict, December 7, 1941, to August 15, 1945, shall be considered active duty for the purposes of all laws administered by the Veterans Administration (VA).  The VA does not determine creditable service for military retired pay.

3.  According to the Department of Defense Military Pay and Allowances Entitlements Manual, the Merchant Marine is not listed a creditable service organization when computing cumulative years of service for basic pay.  Therefore, the applicant is not entitled to a recalculation of her annuity pay  based on the FSM's service as a Merchant Marine and the FSM is not entitled to 4 years of additional service credit for military retired pay. 

4.  In order to justify correction of a military record the applicant must show 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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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.




      _______ _  XXX _______   ___
               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)                                         AR20080017300



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ABCMR Record of Proceedings (cont)                                         AR20080017300



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