IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100010552 


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 correction of his records to reflect his service in the Merchant Marine during World War II (WWII) and, accordingly, adjustment of his retired pay account.

2.  The applicant states that he did not previously file because he was unaware that he could receive credit for his Merchant Marine service during WWII.  He further states that at the time, Merchant Marines did not get credit for the G.I. Bill, so he enlisted in the Army to qualify for the G.I. Bill and he got a masters degree.  Additionally, it took him approximately 40 years to get his 20+ years in the military to qualify for retirement.

3.  The applicant provides:

* a copy of his Retirement Certificate, dated 3 December 1986
* a copy of his Honorable Discharge Certificate from the U.S. Coast Guard (USCG), dated 23 March 1946 for Merchant Marine service during WWII
* a copy of a DD Form 214 (Certificate of Release or Discharge from Active Duty) issued on 16 November 2009 showing his USCG – Merchant Marine service for the period 16 August 1945 through 23 March 1946
* a copy of his 15 April 1945 Honorable Discharge Certificate from the USCG 


CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 3 December 1926.  He served as a Merchant Marine from 23 December 1944 to 23 March 1946.

2.  He enlisted in the Regular Army at Scott Field, IL on 12 September 1946 and was honorably discharged at Camp Stoneman, CA on 13 March 1948.

3.  On 24 January 1954, he enlisted in the Air Force Reserve (AFR) and he served in the AFR until he was honorably discharged on 11 December 1963.

4.  On 3 November 1972, he enlisted in the Kansas Army National Guard (KSARNG) and served in the KSARNG until he was honorably discharged on
17 May 1983 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Retired Reserve) in the pay grade of E-8.

5.  On 3 December 1986 (at age 60), he was placed on the Army of the United States (AUS) Retired List in the pay grade of E-8.  He was credited with 20 years, 6 months, and 2 days of creditable service and 25 years, 5 months, and 20 days of service for pay purposes.

6.  On 16 November 2009, the applicant was issued a DD Form 214 showing his prior active service in the Merchant Marine from 16 August 1945 to 23 March 1946 (6 months and 22 days).  The DD Form 214 indicates in item 18 (Remarks) that the DD Form 214 was issued under Public Law 105-368 (Title 46, U.S. Code, 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, U.S. Code.  The periods of qualifying service under Public Law 105-368 were listed.  The period of service shown in block 12d records service previously determined under Public Law 95-202 (Title 38, U.S. Code, section 106 note) to establish active duty service for the purpose of Department of Veterans Affairs benefits.

7.  Public Law 95-202 (1977) states in pertinent part:

* Notwithstanding any other provision of law, the service of any person as a member of the Women’s Air Force Service Pilots (a group of Federal Civilian Employees attached to the United States Air Force during WWII), 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 purpose of all laws administered by the Secretary of Veteran Affairs, if the Secretary of Defense {DoD}, pursuant to regulations which the secretary shall prescribe:

* {D}etermines…that the service of such group constituted active military service, and
* 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

8.  The Congress left it to the Secretary of Defense to prescribe regulations to be used in determining which group’s service constituted active military service.  In 1979, DOD adopted regulations implementing the law and delegated this function under the law to the Secretary of the Air Force.  See Schumacher v. Aldridge, 665 F. Supp. 43, 44 (D.D.C. 1987).

9.  The Secretary of the Air Force initially did not designate the Merchant Marine as such a group.  However, the D.C. Circuit, in Schumacher, 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, December 7, 1941 to August 15, 1945, be considered active duty for the purpose 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.  Total active duty service shall be the summation of each foreign, near foreign, coastwise, and intercoastal voyage within the period of armed conflict of WWII.  Inclusive dates of each creditable voyage shall be reflected on the DD Form 214.

10.  On 2 February 1988, the Secretary of the Air Force designated the USCG as the agency responsible for issuing Coast Guard discharge documents to eligible merchant seamen, as the custodian for merchant seaman records.  The USCG did not issue the DD Forms 214 documenting service with the Army Transport Service.


11.  Department of Defense Financial Management Regulation (DODFMR 7000.14-R (Military Pay Policy and Procedures for Retired Pay) provides in chapter 1, section B, service that is creditable for basic pay.  Merchant Marine service is not on the list of service that is deemed creditable for basic pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his military records should be corrected to reflect his service in the Merchant Marines and that his pay should be adjusted accordingly has been noted and appears to lack merit.

2.  Title 38, U.S. Code, section 106 Note (a)(1), states, “the service of any group…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 purpose of all laws administered by the Secretary of Veterans Affairs.”

3.  It is clear from the language of the law that the active service granted by Congress for certain civilian service during WWII was for the purpose of qualifying eligible individuals for veteran’s benefits.  If Congress had intended for this active service to be credited for all purposes, including basic pay, it certainly would have written the law without the words, “for the purpose of all laws administered by the Secretary of Veterans Affairs.”

4.  Accordingly, the applicant is only entitled to the benefits for which he is eligible under the laws and regulations of the Department of Veterans Affairs as it pertains to his Merchant Marine service during WWII.

5.  Inasmuch as Merchant Marine service is not creditable for basic pay purposes and given the language of the law that provides only veterans benefits for such service, there appears to be no basis to grant the applicant’s requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  __X____  __X_____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the World War II.  The applicant and all Americans should be justifiably proud of his service to our Nation.



      __________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)                                         AR20100010552



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ABCMR Record of Proceedings (cont)                                         AR20100010552



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