IN THE CASE OF:	  

		BOARD DATE:	  1 November 2011

		DOCKET NUMBER:  AR20110010162 


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 show service credit for his service in the Merchant Marines during World War II (WWII). 

2.  The applicant states:

	a.  He served in the Merchant Marines during WWII from 29 November 1944 to 9 December 1946, a total of 2 years, 2 months, and 25 days [sic].  If this was added to his total service time it would give him 21 years, 2 months, and 25 days of total active service for retired pay.  

	b.  The U.S. Coast Guard (USCG) issued him a DD Form 214 (Certificate of Release or Discharge from Active Duty) for his service but they only included information from one ship he served on instead of all time served on other ships through December 1946.  He was also given a certificate that showed he had continuous service in the Merchant Marines from 29 November 1944 to 9 December 1946, proving he had 2 years of wartime service.  

	c.  He was drafted into the Army of the United States (AUS) in 1950 and remained in the Army until he was given a temporary disability retirement in 1969 with 80 percent due to a heart condition, just 9 and one-half months short of 20 years of service.  When concurrent receipt was approved, he was told he did not qualify as he did not have 20 years of service in the Army.  He does not understand why they would not include his wartime service in the Merchant Marines.  

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 28 November 1969
* DD Form 214 for the period ending 15 August 1945
* Three pages of USCG certificates
* Five certificates
* A photograph of two awards

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 records show he was inducted into the AUS on 14 September 1950 and he held military occupational specialty 94B (Cook).  On 18 October 1951, he was discharged for the purpose of immediate enlistment.  

3.  The DD Form 214 (Report of Separation from the Armed Forces of the United Stated) he was issued for this period of service shows he served a total of 1 year, 1 month, and 4 days of active service.

4.  On 19 October 1951, he enlisted in the Regular Army (RA).  He was discharged for the purpose of immediate reenlistment on 23 July 1957.  The DD Form 214 was issued for this period of service shows he completed 5 years, 9 months, and 5 days of active service during this period of service; had 1 year, 1 month, and 4 days of prior active service; for a total of 6 years, 10 months, and 9 days of active service.

5.  He reenlisted in the RA on 24 July 1957.  He was discharged for the purpose of immediate reenlistment on 15 March 1961.  The DD Form 214 he was issued for this period of service shows he completed 3 years, 7 months, and 22 days of active service during this period; had 6 years, 10 months, and 9 days of prior active service; for a total of 10 years, 6 months, and 1 day of total active service.
6.  He reenlisted in the RA on 16 March 1961.  He was discharged for the purpose of immediate reenlistment on 15 March 1967.  The DD Form 214 he was issued for this period of service shows he completed 6 years of active service during this period; had 10 years, 6 months, and 1 day of prior active service; for a total of 16 years, 6 months, and 1 day [sic] of total active service.

7.  He reenlisted in the RA on 16 March 1967.  He was honorably retired in the rank of specialist six (SP6) on 28 November 1969 and placed on the Temporary Disability Retired List (TDRL) with an 80 percent disability rating.  Item 22 (Statement of Service) of his final DD Form 214 shows he completed 2 years, 8 months, and 13 days of active service during this period; had 16 years, 6 months, and 2 days of prior active service; for a total of 19 years, 2 months, and 15 days of active service.

8.  Item 25 (Disability Retirement) of an AGPZ Form 977 (Data for Retired Pay), dated 20 November 1969, shows he was credited with 19 years, 2 months, and 15 days of active service for retired pay.

9.  Letter Orders Number D1-399, dated 12 January 1972, issued by the Office of the Adjutant General, Washington, DC, removed him from the TDRL, permanently retired him in the rank of SP6, and placed him on the Retired List with 80 percent disability

10.  The applicant provides records that show he served as a Merchant Marine aboard a USCG vessel as follows:

* 28 May to 19 August 1945
* 8 October to 5 November 1945
* 13 November to 27 December 1945
* 7 January to 16 January 1946
* 5 February to 2 July 1946
* 22 February to 9 May 1947.

11.  He also provides a DD Form 214 he was issued for his service in the USCG-Merchant Marine.   Item 12 (Record of Service) of the DD Form 214 shows he entered active duty on 28 May 1945 and separated on 15 August 1945.  Item 18 (Remarks) of this form shows "This document, issued under the provisions of Public Law 95-202, 83 U.S. Code (USC) 106, administratively established active duty service for the purposes of Department of Veterans Affairs (VA) benefits."

12.  Public Law 95-202 acknowledged active duty service for certain WWII merchant marine seamen effective January 19, 1988.  Merchant Marine seamen, who served under the Coast Guard, Naval Transportation Service, or Army Transportation Service in active, oceangoing service during the period from 7 December 1941 to 15 August 1945, would be considered as having served on active duty for the purposes of all laws administered by the VA.  Merchant Marine service did not establish eligibility for compensation and/or pension.

13.  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 evidence of record shows the applicant was placed on the TDRL in the rank of SP6 with 80 percent disability on 28 November 1969 and he was properly credited with 19 years, 2 months, and 15 days of creditable active service for retired pay.

2.  In January 1988, Merchant Marines who served under the USCG in active, oceangoing service between 7 December 1941 and 15 August 1945 were granted active duty status for the time they served aboard a USCG vessel for VA purposes only.  Subsequently, the USCG issued him a DD Form 214 covering active service from 28 May through 15 August 1945, the only time he served on a USCG vessel between 7 December 1941 and 15 August 1945.  

3.  By law, this service (no matter how many ships he had served on) was considered as active duty service only for the purpose of all laws administered by the VA and does not establish creditable active service for military retired pay.  

4.  In view of the foregoing, he is not entitled to the 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)                                         AR20110010162





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ABCMR Record of Proceedings (cont)                                         AR20110010162



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