BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20100000875 


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 86 points be added to his retirement points based on his service in the Merchant Marine.

2.  The applicant states the law regarding Merchant Seamen who served from 
7 December 1941 until 31 December 1946 was changed.  Based on that change he was issued an honorable discharge and a DD Form 214 (Certificate of Release or Discharge from Active Duty) as a member of the U.S. Coast Guard (USCG).  He states this time should now be added to his military service for credit in computing his retirement pay.

3.  The applicant provides copies of:

* his Honorable Discharge Certificate from the U.S. Coast Guard
* his DD Form 214 from the USCG - Merchant Marine
* his DARP Form 249 (Chronological Statement of Retirement Points)
* a letter, dated 7 December 2009, from the Defense Finance and Accounting Service (DFAS)

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.  The applicant's military personnel records show he enlisted in the Regular Army on 2 April 1946.  He was released from active duty on 3 October 1947.  He went on to serve periods of service in the Army National Guard and the U.S. Army Reserve (USAR) in both an enlisted and an officer status.  He had served 
4 months and 23 days in the U.S. Air Force.

3.  On 21 February 1983, the applicant was transferred to the USAR Control Group (Retired) in the grade of sergeant first class/pay grade E-7.  According to his DARP Form 249, dated 19 July 1987, he had completed 20 years, 7 months, and 9 days of qualifying service for retirement pay at age 60.  His total points credited were 2718.

4.  On 6 January 1988, the applicant was placed on the Retired List in the grade of captain/pay grade O-3.

5.  The applicant submitted his Honorable Discharge Certificate from the USCG, dated 1 March 1946.  This certificate includes the statement "Issued pursuant to P.L. 95-202 and/or P.L. 106-368 for service in the American Merchant Marine between December 7, 1941 and December 31, 1946."

6.  The DD Form 214 submitted by the applicant shows his Department/Component as USCG - Merchant Marine and shows his service as being from 4 December 1945 to 1 March 1946.  Item 18 (Remarks) contains the statement, "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."

7.  The letter, dated 7 December 2009, from DFAS advised the applicant they could not adjust his retirement pay account.

8.  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” (now known as the Department of Veterans Affairs (VA)).

9.  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 he should be credited with an additional 86 retirement points based on his service in the Merchant Marine.

2.  According to the 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 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 as a creditable service organization when computing cumulative years of service for basic pay.  

4.  Therefore, there are no provisions for crediting the applicant's service in the Merchant Marine to his military retirement points.  

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)                                         AR20100000875





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)