IN THE CASE OF:.

		BOARD DATE:  14 August 2012

		DOCKET NUMBER:  AR20120003287 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he served on active duty from 4 January 1945 to 28 August 1946.

2.  The applicant states that he served in World War II (WWII) as a Merchant Marine.  He entered the service on 4 January 1945 and was honorably discharged on 28 August 1946.  

3.  The applicant provides copies of:

* his DD Form 214
* War Record of St. John the Baptist Parish, Earl Park, IN 1941-1945
* envelope postmarked 13 February 1945 from Brooklyn, NY with letter dated 12 February 1945
* envelope postmarked 28 June 1945 from Charleston, SC, with letter dated 27 June 1945
* picture captioned "U.S. Army Hospital Ship 'Acadia' arrives at Charleston, SC"
* envelope postmarked 22 February 1946 from Indianapolis, IN, with letter dated 22 February 1946

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 records are not available to the Board for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant’s DD Form 214 shows he entered active duty on 12 April 1945 and was honorably discharged on 2 June 1945.  He had completed 1 month and 28 days of net active service.  The DD Form 214 shows in:

	a.  Item 2 (Department, Component and Branch) "Army Transportation Corps." 

	b.  item 18 (Remarks):  "This document, issued under the provisions of Public Law 95-202 (38 USC 106 NOTE), administratively establishes active duty for the purposes of Veterans Administration) Benefits."

	c.  Item 25 (Separation Authority) "PL 95-292, Section 401."  

4.  His records contain:

	a.  T.C. Form 147 (Certificate of Discharge) showing the applicant's Date of Shipment as 12 April 1945 and Date of Discharge as 2 June 1945; 

	b.  DD Form 2168 (Application for Discharge of Member or Survivor of Member Certified to have Performed Active Duty with the Armed Forces of the United States), dated 22 February 1988.  The applicant submitted this form showing he served with the U.S. Maritime Commission from January to August 1945;

	c.  a 19 September 1988 memorandum from John F. M____, who stated he and the applicant entered the Merchant Marines in January 1945.  They sailed to England on the U.S. Hospital Ship (U.S.H.S.) Acadia and back to the United States.  He further states the applicant left the Merchant Marines in August 1945;

	d.  a 17 August 1989 letter from the U.S. Army Reserve Personnel Center, advising the applicant that his application for discharge was approved and a 
DD Form 214 was furnished; and

	e.  Administrative Action Record Department of the Army Individual Civilian Service Review Board documents reflecting the board members voted the applicant should receive an honorable discharge for the period 12 April to 2 June 1945 (1 month and 21 days) and that a draft and final DD Form 214 were included.

5.  Title 38, U.S. Code section 106 defined the conditions under which Merchant Marine service could be considered as qualifying for VA benefits and prescribed the procedure for determining the eligibility.  

6.  He provides copies of:  

	a.  War Record of St. John The Baptist Parish, Earl Park, IN, 1941-1945 showing he entered service in the Merchant Marines on  4 January 1945 at Sheepshead Bay, NY, served overseas in England, served aboard the U.S.H.S. Acadia, and was honorably discharged on 28 August 1946;

	b.  a 12 February 1945 letter he sent to his now spouse using U.S. Maritime Service Training Station, Sheepshead Bay, NY, letterhead.  A copy of a photograph of  "his section" is included;

	c.  a 27 June 1945 letter to his now spouse postmarked Charleston, SC.  A copy of a postcard showing the U.S.H.S. Acadia is included; and

	d.  a 22 Feb 1946 letter to his now spouse postmarked from Indianapolis, IN.

7.  Public Law 95-202 provided that the service of any person in a group [Merchant Marine] 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 to be considered active duty for the purposes of all laws administered by the Secretary of Veterans Affairs.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show he served on active duty from 4 January 1945 to 28 August 1946.
2.  The evidence of record shows the applicant served in the Merchant Marines from 4 January 1945 to 28 August 1946.  He spent time at the U.S. Maritime Service Training Station and later sailed on the U.S.H.S. Acadia to England.  He returned to the United States and received a Certificate of Discharge showing his service from 12 April 1945 to 2 June 1945.

3.  He received a DD Form 214 showing he received an honorable discharge for his active duty service in the Army Transportation Corps from 12 April to 2 June 1945.  The DD Form 214 shows the remark:  "This document, issued under the provisions of Public Law 95-202 (38 USC 106 NOTE), administratively establishes active duty for the purposes of Veterans Administration Benefits."

4.  There is no available evidence that the applicant served any other qualifying time.

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)                                         AR20090007385



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ABCMR Record of Proceedings (cont)                                         AR20120003287



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