IN THE CASE OF:
BOARD DATE: 2 February 2010
DOCKET NUMBER: AR20090014094
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, correction of item 18 (Remarks) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his voyage dates on the USAT [U.S. Army Transport] Frederick Lykes from
21 February 1945 to 2 June 1945.
2. The applicant states that the Department of Veterans Affairs (DVA) denied his claim for pension benefits because his DD Form 214 did not show qualifying active military service (i.e., actual voyages and inclusive dates of his Merchant Marine voyages).
3. The applicant provides a T.S. Form 147 (Certificate of Discharge Army Transport Service), dated 2 June 1945; a letter from the DVA, dated 14 July 2009; and a copy of his DD Form 214 in support of his 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 to the Board 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. However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.
3. In 1989, the Civilian Service Review Board approved the applicant's request for creditable military service in the Army Transportation Corps and/or discharge under the provisions of Public Law 95-202. He was furnished a Certificate of Honorable Discharge and a DD Form 214 for the period 4 January 1945 through 15 August 1945.
4. Item 18 on the applicant's DD Form 214 contains the applicant's service number and the entries "SHIP: FREDERICK LYKES" and "THIS DOCUMENT, ISSUED UNDER THE PROVISIONS OF PUBLIC LAW 95-202 (38 USC 106 NOTE), ADMINISTRATIVELY ESTABLISHES ACTIVE DUTY FOR THE PURPOSES OF VETERANS ADMINISTRATION BENEFITS//NOTHING FOLLOWS."
5. In support of his claim, the applicant provided a Certificate of Discharge which states, in pertinent part, that his date of shipment from San Francisco, CA on the USAT Frederick Lykes was 21 February 1945 and his date of discharge was
2 June 1945 by reason of expiration of term of shipment.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that item 18 of his DD Form 214 should be corrected to show his voyage dates on the USAT Frederick Lykes was considered and found to have merit.
2. The entries on the T.S. Form 147 provided by the applicant which show he left San Francisco on the USAT Frederick Lykes on 21 February 1945 and discharged on 2 June 1945 are accepted as sufficient evidence on which to amend item 18 of his DD Form 214 to show this voyage.
BOARD VOTE:
____X___ ____X___ ___X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting from item 18 of his DD Form 214 the entry "SHIP: FREDERICK LYKES" and replacing it with the entry "SHIP: FREDERICK LYKES, 19450221-19450602."
___________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) AR20090014094
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ABCMR Record of Proceedings (cont) AR20090014094
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