BOARD DATE: 3 December 2009
DOCKET NUMBER: AR20090008988
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:
The applicant deferred to counsel.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE
1. The applicant's counsel requests, in effect, that line 40 (Reason and Authority for Separation) of the applicant's WD AGO Form 53-55 (Enlisted Record and Report of Separation Honorable Discharge) be corrected to show that he was medically retired.
2. The applicant's counsel states, in effect, that the applicant cannot receive CRSC (combat-related special compensation), that his records do not show that he was medically retired, and that he has not received any severance pay or retirement since his separation date.
3. The applicant's counsel provides a copy of the applicant's WD AGO
Form 53-55 in support of this application.
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 applicants military records are not available for review. A fire destroyed approximately 18 million service members records at the National Personnel Records Center in 1973. It is believed that the applicants records were lost or destroyed in that fire to include his medical records. However, the available evidence was sufficient to conduct a fair and impartial review of this case.
3. The applicant's WD AGO Form 53-55 shows he was inducted into the Army of the United States on 15 September 1942.
4. On 26 September 1945, the applicant was discharged. The applicant completed 3 years and 12 days of creditable active service. Item 40 (Reason and Authority for Separation) states that the applicant was issued a Certificate of Disability for Discharge in accordance with Section I, Army Regulation 615-361.
5. Army Regulation 615-361 (Enlisted Men Discharge Medical), in effect at the time, discussed Certificates of Disability for Discharge, which were issued to enlisted Soldiers who were permanently unfit for further military service because of wounds or disease.
6. Section 61 of Title 10, U.S. Code, amended by Public Law Number 140, dated 30 June 1941, extended disability retirement to Army enlisted Soldiers with 20 or more years of service to be retired for disability.
7. CRSC, as established by Section 1413a, Title 10, U.S. Code, as amended, provides for the payment of the amount of money a military retiree would receive from the VA for combat related disabilities if it was not for the statutory prohibition for a military retiree to receive a VA disability pension. Payment is made by the Military Department, not the VA, and is tax free. Eligible members are those retirees who have 20 years of service for retired pay computation (or 20 years of service creditable for reserve retirement at age 60) and who have disabilities that are the direct result of armed conflict, specially hazardous military duty, training exercises that simulate war, or caused by an instrumentality of war.
DISCUSSION AND CONCLUSIONS:
1. Evidence of record shows that the applicant was issued a Certificate of Disability Discharge when he was discharged. However, evidence of record shows that the applicant served in an enlisted status only for 3 years and 12 days. Therefore, he is not entitled to correction of his records to show he was retired on the date of his discharge.
2. Regrettably, 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.
__________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) AR20090008988
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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