BOARD DATE:	4 November 2010  

		DOCKET NUMBER:  AR20100011547


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, active duty service credit for his service in the Merchant Marine during World War II (WWII) and, accordingly, adjustment of his retired pay account.

2.  The applicant states he is a retired, Regular Army (RA) platoon sergeant 
(E-7).  During WWII, he served in the US Coast Guard (USCG) Merchant Marine and he thought that service would be added to his RA service.  He has tried to get this corrected for years, but to no avail.

3.  The applicant provides:

* DD Form 256 CG (Honorable Discharge-United States Coast Guard)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) from the USCG-Merchant Marine for the period 26 October 1944 through 15 August 1945
* Presidential Letter signed by President Truman
* USCG Certificates of Discharge for two vessels
* US Department of Transportation Memorandum of WWII Maritime Service

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 is a retired E-7.  He was inducted into the Army of the United States (AUS) on 30 November 1950 and he was separated from the AUS on 
31 October 1952.  He had inactive service in the US Army Reserve (USAR) and the Enlisted Reserve Corps (ERC).  On 21 September 1956, he enlisted in the RA and served to retirement for length of service on 31 October 1974.

3.  Counting his AUS, USAR, ERC, and RA service, the applicant had 23 years, 11 months, and 1 day of total credit for pay.  This service is reflected on his retirement DD Form 214 with an effective date of 31 October 1974.  His service in the Merchant Marine during WWII is not counted.

4.  On 23 November 2009, the applicant was issued a DD Form 214 showing his prior active service in the Merchant Marine from 26 October 1944 to 15 August 1945.  The DD Form 214 indicates in item 18 (Remarks) that the DD Form 214 was issued under Public Law 95-202 (Title 38, US Code, section 106), which administratively establishes active duty service solely for veterans' benefits under chapter 23 (relating to burial benefits) and chapter 24 (relating to interment benefits) of Title 38, US Code.

5.  Public Law 95-202 (G.I. Bill Improvement Act of 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 and known as WASPs), 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:

* determines that the service of such group constituted active military service; and

* 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 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).

7.  The Secretary of the Air Force initially did not designate the Merchant Marine as such a group.  However, the D.C. Circuit, in Schumacher v. Aldridge, 665 F. Supp. 43, 44 (D.D.C. 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, 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.

8.  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.

9.  Department of Defense Financial Management Regulation (DODFMR 7000.14-R (Military Pay Policy and Procedures for Retired Pay) provides in Volume 7B, Chapter 1, 010101.B, all service creditable for retirement purposes.  Merchant Marine service is not on the list of service that is deemed creditable.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention, in effect, that he should be granted active service credit for his service in the Merchant Marine during WWII and, accordingly, an adjustment of his retired pay account has been examined and appears to lack merit.

2.  Title 38 USC §106 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 service 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:

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)                                         AR20100011547



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ABCMR Record of Proceedings (cont)                                         AR20100011547



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