IN THE CASE OF:	  

		BOARD DATE:	  6 June 2013

		DOCKET NUMBER:  AR20120019939 


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, the daughter of a deceased former service member (FSM), requests correction of item 4 (Department, Component, and Branch or Class) of her father's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

2.  The applicant states:

	a.  Her father was a retired major and his class was indicated as U.S. Army Reserve (USAR).  When her father passed, her mother was told the Army had not changed his branch to the U.S. Army (USA) due to an arm injury that occurred when he was 6 years of age.  Her father passed all of his flight and other physicals and records state his arm had good strength and range of motion.  He was cleared for flight school, wars, teaching, and promoted through the ranks.  He should have been classified as USA and not USAR.

	b.  Her mother was never able to receive her father's retirement and she did not know why until recently.  In looking at his records, her father served honorably and his medical reports reflect such.  His arm was never an issue during his military career and his class should have been changed.   

	c.  Her father retired in 1959 and passed in 1968.  Her mother has struggled all her life, and she was never able to receive her dad's retirement due to a "technicality."  It was discovered at the time of his death when the Army was 

assisting her mother with filing for retirement.  Her mother was not entitled to his retirement because of item 4 listing USAR instead of USA.  There should not be any reason her dad was not classified as an USA Soldier and her mother should be entitled to his retirement.  Instead, her mother has continued all of these years without such and only receives a small widow's annuity.  She would like to see the Army correct his branch to the USA and change his status so her mother can receive any back pay she is entitled to.

3.  The applicant provides:

* FSM's:

* Standard Form 88 (Report of Medical Examination)
* DD Form 214
* Certificate of Death

* VA Form 21-534 (Application for Dependency and Indemnity Compensation or Death Pension by Widow or Child)
* VA Form OA-C24 (Social Security Administration - Application for Survivors Benefits)
* Her Birth Certificate

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 FSM's complete military records are not available for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that the FSM's records were lost or destroyed in that fire.  However, there were sufficient documents submitted by the applicant to conduct a fair and impartial review of this case.

3.  The FSM's available military records show he was ordered to active duty from the U.S. Army Reserve (USAR) and entered active duty on 25 August 1946.  His rank at the time was first lieutenant.  

4.  He was honorably retired in the rank of major on 31 August 1959 upon completion of 20 years and 21 days of total active Federal service.  Item 4 of his DD Form 214 lists the entry "ARMY-USAR-ARTY (Artillery)."  Item 32 (Remarks) shows he was promoted to major in the USAR on 12 May 1958.

5.  The applicant provides copies of the following:

* Standard Form 88, dated 3 June 1959, which shows the FSM sustained an open reduction fracture of his left elbow in 1930; had no complications; and had mild post fracture deformity, but good strength and range of motion
* FSM's Death Certificate which shows he passed on 23 August 1968
* VA Form 21-534, dated 29 August 1968, which shows the FSM's widow applied for benefits and listed the applicant and another daughter as the FSM's children
* VA Form OA-C24, dated 29 August 1968, which shows the FSM's widow applied for Social Security Administration Survivors Benefits
* Applicant's Birth Certificate which lists the FSM as her father

6.  Army Regulation 635-5 (Separation Documents), dated 13 August 1963, specified for officer personnel item 4 would list "ARMY" in capital letters and the component and basic branch of the officer as recorded on the DA Form 66 (Officer Qualification Record).  If an officer was serving in a branch in which detailed, a cross-reference would be made in item 32 (Remarks) to account for the detail.  That information would also be obtained from the DA Form 66.

7.  Public Law 83-239, enacted 8 August 1953, provided a way for those who qualified for retirement to provide an annuity under the Uniformed Services Contingency Option Act (USCOA) for their survivors provided they made an election before the end of their 18th year of service.

8.  Public Law 87-381, enacted 4 October 1961, provided a way for those who qualified for retirement to provide an annuity under the Retired Serviceman's Family Protection Plan (RSFPP) for their survivors.  USCOA automatically converted to the RSFPP.

9.  Public Law 94-425, enacted 21 September 1972, repealed the RSFPP and established the Survivor Benefit Plan (SBP).



DISCUSSION AND CONCLUSIONS:

1.  Based on the available evidence it appears the FSM was appointed in the USAR and entered active duty on 25 August 1946 from that component.  The evidence also shows the USAR was the proponent of his promotion to major in 1958.  There is no evidence of record available and the applicant has provided insufficient evidence to show her father was converted to a USA status prior to his retirement in 1959.  

2.  The FSM retired with full benefits allowed any Soldier, USAR or USA, who retired after completing 20 years of active Federal service.  However, there is no evidence the FSM elected USCOA coverage, which would have converted to RSFPP coverage at the time of retirement which would have entitled her mother to an annuity.  The FSM died before the establishment of SBP.

3.  The applicant's contentions and documents were carefully considered; however, there is an insufficient evidentiary basis to support granting the requested relief.  Therefore, she is not entitled to correction of item 4 of her late father's DD Form 214 to show his branch as USA.

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 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)                                         AR20120019939



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ABCMR Record of Proceedings (cont)                                         AR20120019939


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