IN THE CASE OF:	

		BOARD DATE:	14 July 2009  

		DOCKET NUMBER:  AR20090004205


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, in effect, a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing honorable service in the Army Transport Service.

2.  The applicant states, in effect, he served as a merchant seaman in the Army Transport Service during 1948-1950.  Changes to Public Law now grant his entitlement to a DD Form 214.

3.  The applicant provides:

	a.  a TC Form 147 (Certificate of Discharge Army Transport Service) for the period of service 19480607-19481009 aboard the U.S. Army Transport (USAT) General Daniel I. Sultan;

	b.  a personnel document showing his name, address, description, place of birth, nationality, date of birth, and Z number;

	c.  a Certification of Sea Service for periods commencing on 26 October 1948 and ending on 25 March 1950;

	d.  a statement of service aboard the USAT Hope;

	e.  a transfer document from one ship to another ship; and

	f.  a court document, dated 28 January 1983, legally changing his last name.
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 applicant’s 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 applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  Limited records provided the applicant by the National Archives and Records Administration (NARA) show he served as a merchant seaman in the Army Transport Service from on or about 7 June 1948 to on or about 11 February 1950.

3.  The NARA records show the applicant’s Z Number was Z-505315 and that he sailed aboard ships during the following periods:

PERIODS OF SEA DUTY:
19480607-19481009	SHIP:  USAT GEN DANIEL I. SULTAN
19481026-19481213	SHIP:  USAT GEN A. W. GREELY
19490115-19490212	SHIP:  USAT GEN DANIEL I. SULTAN
19490316-19490325	SHIP:  USAT GEN DANIEL I. SULTAN
19490406-19490505	SHIP:  USAT GEN DANIEL I. SULTAN
19490513-19490607	SHIP:  USAT GEN DANIEL I. SULTAN
19490830-19491007	SHIP:  USAT HOPE
19491216-19500109	SHIP:  USAT GEN EDWIN D. PATRICK
19500114-19500211	SHIP:  USAT GEN EDWIN D. PATRICK

4.  The history of the Army Transport Service is as follows:

	a.  It was organized in late 1898 as an integral part of the Army Quartermaster Department.  The concept for an Army-operated fleet had its origins with the experiences of the military sealift during the Spanish-American War when U.S. flag commercial shipping was found in part unresponsive to the Army's needs.

   b.  During the early twentieth century, the Army operated a large transpacific sealift consisting of its own ships as well as a number of commercial vessels, partly of foreign registry, which it time-chartered for support of American troops during the Philippine Insurrection and for the Relief of Peking.  Following 1904, a somewhat skeletonized fleet remained in service until the entry of the United States into World War I.

	c.  Rapidly expanded, by early 1918 the Army was manning with its own crews in excess of fifty ships in support of the American Expeditionary Force in France.  In July of 1918, beset by disciplinary problems with its employees, the War Department requested that the Navy's Overseas Transportation Service take over the Army-operated fleet, but this had not been completely accomplished by the time of the Armistice.

	d.  Starting in early 1919, the Army began taking back its historic sealift function.  With the severe reduction in military requirements which took place beginning in 1921, the fleet reverted to a small nucleus of mainly transports engaged in serving American holdings in the Pacific.

	e.  With the beginning of World War II, the fleet was again expanded.  In 1942, the Army Transport Service was absorbed into the Army's Transportation Corps, becoming part of the Water Division, its civilian seamen employees being classified as members of the Water Division's "Civilian Branch."

5.  In 1977, pursuant to Public Law 95-202, Congress gave veterans status to individuals in certain civilian occupations that rendered service to the United States during World War II.  Public Law 95-202 states in pertinent part:

Notwithstanding any other provision of law, the service of any person as a member of the Women's Air Forces Service Pilots (a group of Federal Civilian Employees attached to the United States Army Air Force during World War II), or the service of any person in any other similarly situated group the members of 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, shall be considered active duty for the purposes of all laws administered by the Secretary of Veterans Affairs, if the Secretary of Defense (SECDEF), pursuant to regulations which the Secretary shall prescribe…

	(A)  [D]etermines…that the service of such group constituted active military service; and

	(B)  In the case of any such group with respect to which such Secretary had made an affirmative determination that the service of such group constituted active military service, issues to each member of such group a discharge from such service under honorable conditions where the nature and duration of the service of such member so warrants.

6.  The Congress left it to the SECDEF to prescribe regulations to be used in determining which group's service constituted active military service.  In 1979, the SECDEF adopted regulations implementing the law and delegated his function under the law via executive agency to the Secretary of the Air Force.  The Secretary of the Air Force initially did not designate the Merchant Marine as such a group.  However, the Circuit Court for the District of Columbia, in Schumacher v. Aldridge, 665 Federal Supplement, pages 43-44 (District Court for the District of Columbia, 1987), refused to uphold the Secretary's decision that certain Merchant Marine service should not be considered "active military service."  On 11 January 1988, the Secretary of the Air Force issued a memorandum stating, "the service of the group known as the "American Merchant Marine" in oceangoing service [which included civil service crew members of the U.S. Army Transport Service] during the period of Armed Conflict, 7 December 1941 to 15 August 1945,…be considered active duty for the purposes of all laws administered by the Veterans Administration."  The Secretary further directed that those merchant mariners who met certain eligibility criteria would be issued a DD Form 214 and a discharge certificate or an Honorable Service Certificate/Report of Casualty.

7.  On Veterans Day, 1998, President Clinton signed Public Law 105-368, The Veterans Program Enhancement Act of 1998.  A provision of this law states that service during the period 16 August 1945 to 31 December 1946 shall be considered active duty for the purpose of eligibility for certain limited veterans benefits.  In effect, it extended the time period established by Public Law 95-202.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a DD Form 214 for his Army Transport Service time.

2.  Public Law 95-202 and Public Law 105-368 established service with the Army Transport Service as active duty military service while onboard ship.  There is no question the applicant served as a merchant seaman with the Army Transport Service and that he saw sea duty; however the records show his service was between June 1948 through February 1950.

3.  The law as implemented by the Department of Defense Executive Agent specified the qualifying period to be awarded active duty as 7 December 1941 through 31 December 1946.  Unfortunately, the applicant’s service was outside the qualifying period.

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)                                         AR20090004205



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ABCMR Record of Proceedings (cont)                                         AR20090004205



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