IN THE CASE OF:
BOARD DATE: 11 January 2011
DOCKET NUMBER: AR20100017410
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 her application that the records of her late husband, a former service member (FSM), be corrected by: "Military medical retirement at age 21 after being combat injured in Southeast Asia. To acknowledge the injustices of fraud, waste and abuse, misconduct, conspiracy of and to [the FSM] from March 23, 71 to April 22, 1972 after retirement and June 1, 2003 to Sept 30, 2006."
2. The applicant had made telephonic requests to the Human Resources Command, St. Louis (HRC-STL) that were recorded on the Soldier Management System (SMS). In those conversations she requested, in effect, her husband's records be corrected to show he was eligible for retired pay.
3. The applicant states in her application "Collection and recognition of the tangible and intangible benefits of all branches of service in which [the FSM] served."
4. In the telephone conversations with HRC-STL, the applicant stated her husband was special operations/black operations, had to report to duty within 15 minutes at least twice a month since 1977, and was murdered by the Department of Veterans Affairs.
5. The applicant provides documents which she lists in an index, and a supplemental timeline for military record correction of the FSM.
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 FSM's military records show that he was inducted in the Army on 23 March 1971, was awarded the military occupational specialty of field wireman, served in Vietnam as a field wireman from 1 September 1971 to 20 April 1972, and was promoted to pay grade E-4.
3. He was honorably released from active duty on 22 April 1972 by reason of phase down release of personnel. He had completed 1 year and 1 month of active duty.
4. The FSM was assigned to the U.S. Army Reserve (USAR) Control Group (Annual Training), where he remained until his discharge at the expiration of his term of service on 22 March 1977.
5. The FSM's DA Form 20 (Enlisted Qualification Record), Item 40, Wounds, is blank.
6. The Vietnam Casualty List does not contain the FSM's name.
7. In the FSM's separation physical examination, given on 21 April 1972, the FSM stated that he was in good health.
8. Title 10, U. S. Code, Section 12731, Chapter 1223 - Retired Pay For Non-Regular Service, Age and Service Requirements, states that except as provided in subsection (c), a person is entitled, upon application, to retired pay computed under section 12739 of this title, if the person - (1) is at least 60 years of age; (2) has performed at least 20 years of service computed under section 12732 of this
title; (3) in the case of a person who completed the service requirements of paragraph (2) before April 25, 2005, performed the last six years of qualifying service while a member of any category named in section 12732(a)(1) of this title, but not while a member of a regular component, the Fleet Reserve, or the Fleet Marine Corps Reserve, except that in the case of a person who completed the service requirements of paragraph (2) before October 5, 1994, the number of years of such qualifying service under this paragraph shall be eight; and (4) is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve.
DISCUSSION AND CONCLUSIONS:
1. It is presumed that the applicant is requesting her late husband's records be corrected to show he was entitled to retired pay for nonregular (USAR) service since his separation physical examination in 1972 showed him in good health and the applicant references him performing military service until 2006.
2. The FSM's records show that he served in the USAR from 22 April 1972 to 22 March 1977, a period of less than 5 years. There is no evidence of the FSM serving in a military status after this date.
3. Since the FSM did not have 20 years of qualifying service, he was not entitled, by law, to retired pay for nonregular service.
4. In view of the foregoing, there is no basis for granting the applicants 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) AR20100017410
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ABCMR Record of Proceedings (cont) AR20100017410
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