MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 June 1999
	DOCKET NUMBER:    AR1998013324

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Ernest W. Lutz, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that he be certified for retired pay for non-regular service.

APPLICANT STATES:  In effect, that the revocation of U.S. Army Reserve Components Personnel and Administration Center (RCPAC) orders entitling him to reserve retired pay was in violation of Title 10 U.S. Code 1406 because there was no act of fraud by the applicant.  He also contends that a certificate was issued pursuant to Public Law 78-87 for 36 months service in the U.S. Merchant Marine in lieu of a discharge certificate from the Armed Services.  In support of his application, he submits 52 exhibits (see the index “Attached Evidence to DD Form 149”).  The applicant also provided a 10 February 1999 letter and recently declassified Reports of Voyage for the SS Floridian and Cape Possession and a 26 February 1999 letter with a “Director’s Report Arming Merchant Vessels” and a Report of Voyage.  All documents provided in support of the application were submitted to the Board for consideration during its deliberations.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant’s military records show that his date of birth was 22 November 1915.  He enlisted in the U.S. Naval Reserve (USNR) on 24 April 1938 and was honorably discharged on 6 February 1941.  The applicant served with the U.S. Coast Guard as a Merchant Marine from 7 December 1941 to 15 August 1945.  He enlisted in the California Army National Guard (ARNG) on 2 May 1949 and was honorably discharged on 1 May 1955.  He enlisted again in the California Army National Guard on 14 July 1957 and was honorably discharged on 13 July 1971 and transferred to the Retired Reserve.  

Evidence of record shows that the applicant submitted a DD Form 108 (Application for Retired Pay Benefits) for retired pay to begin on 22 November 1975 which was the date he became 60 years old.

In a 4 February 1976 letter, the Director of Retired Activities of RCPAC stated that the applicant’s request for retired pay had been approved and provided a Certificate of Retirement and letter orders “effecting” his retired pay.  The DA Form 3713 (Data for Retired Pay) in the applicant’s records shows that he was authorized retirement based on Title 10 U. S. Code, Section 1331-1337 with 20 years of service.  RCPAC Letter Orders 610,109, dated 15 January 1976, authorized him retired pay for non-regular service.

The applicant was notified by RCPAC telephonically on 19 February 1976 and by letter, dated 19 February 1976, that he was erroneously certified for reserve retirement pay and that orders authorizing his retired pay had been revoked.  The letter stated that the basis for this action was Section 1331(c), Title 10, United States Code which, in effect, required an individual who was a member of a reserve component prior to 15 August 1945 to serve on active duty during World War I, World War II or the Korean War in order to qualify for retired pay.  Specifically, the letter pointed out that the applicant was a member of the “Naval reserves” from 24 March 1938 to 6 February 1941 and did not have “war service”; therefore, he was not eligible under current law for retired pay.

The 19 February 1976 letter from RCPAC also advised the applicant that a class action suit was before the United States District Court, Eastern District of New York, and that this suit dealt with the “war service” requirement for eligibility for reserve retired pay in the case of persons with reserve service prior to 15 August 1945.  On 28 April 1977, RCPAC advised the applicant that the United States Supreme Court upheld the provisions of Section 1331(c), Title 10, United States Code and that, as a result, his “application for retired pay must be denied.”

On 28 April 1977, the applicant wrote to RCPAC regarding Section 1331(c), Title 10, United States Code.  On 10 May 1977, RCPAC responded by citing that provision of law.  RCPAC also advised the applicant that he had not performed the required active duty to be eligible for retired pay, that the applicant’s Merchant Marine service is “neither qualifying as active duty nor qualifying for retired pay or benefits under the cited law”, and that, as a result, the applicant “was not eligible to receive retired pay.”

The applicant inquired again regarding exceptions to Section 1331(c), Title 10, United States Code.  On 1 November 1977, RCPAC responded that there were no provisions for exception to Section 1331(c), Title 10, United States Code.  RCPAC also advised the applicant that a waiver for his hearing deficiency could not be used in lieu of “wartime service” and that any entitlement to benefits would be under the jurisdiction of the Veterans Administration.

On 22 July 1976, the applicant filed an application with the Army Board for Correction of Military Records (ABCMR) wherein he requested “retirement pay with honorable discharge.”  In this application, he contended, in effect, that he did not voluntarily leave the Naval Reserve; rather, the Navy called him to active duty but he was discharged due to a hearing defect.  He also stated that he served in the Coast Guard as a Merchant Marine and it was his understanding that this fulfilled his wartime military obligation .  His request was considered on 1 March 1978.  Records show the Board reviewed his application, the statement regarding his Merchant Marine service, available personnel records, a 10 May 1977 letter detailing why the applicant was not entitled to retired pay, and comment’s by the applicant’s counsel.  After due consideration, “the Board unanimously determined that there was no material error or injustice in [his] case” and denied his application.  The applicant was advised of the decision of the Board in a letter, dated 5 April 1978.

The applicant submitted a request for reconsideration on 7 September 1978 with enclosures.  In a 23 October 1978 letter, the Executive Secretary of the ABCMR advised the applicant that the staff of the ABCMR had reviewed the documents submitted and determined that no new evidence had been provided.  As a result, the request for reconsideration was not heard by the ABCMR.

On 30 August 1988, the applicant wrote to the Chief of the Retired Activities Directorate at RCPAC wherein he stated that Army Regulation 37-104-1 had been revised in 1977 to include his service in the U.S. Naval Communications Reserve for retired pay purposes.  He also stated that he understood from his discussion with an official at RCPAC, his retired pay for 20 years in the ARNG and USNR would be retroactive from the time he reached his 60th birthday.

On 7 November 1988, the Chief of Pay Certification at RCPAC responded to the applicant’s 30 August 1988 letter.  She stated that, in spite of the fact the applicant was over 60 years old and had more than 22 qualifying years in the ARNG and U.S. Navy Reserve, he was not eligible to receive retired pay under current law.  The Chief of Pay Certification reiterated that the applicant was not eligible to receive retired pay and benefits because he did not serve during one of the specified wartime periods. 

Section 12731, Title 10, United States Code states age and service requirements for retired pay for non-regular service.  Section12731(a) states:  “Except as provided in subsection (c), a person is entitled, upon application, to retired pay 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) performed the eight 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; 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.”

Section 12731(c)(1), Title 10, United States Code, states: “A person who, before 16 August 1945, was a Reserve of an armed force, or a member of the Army without component or other category covered by section 12732(a)(1) of this title except a regular component, is not eligible for retired pay under this chapter unless-
(A) the person performed active duty during World War I or World War II; or 
(B) the person performed active duty (other than for training) during the Korean conflict, the Berlin crisis or the Vietnam era.”

Section 12731(d), Title 10, United States Code, provides that the Secretary concerned shall notify each person who has completed the years of service required for eligibility for retired pay under this chapter.  The law also required that the notice shall be sent in writing,

Section 12738, Title 10, United States Code (formerly Section 1406,Title 10, United States Code) places limitations on revocation of retired pay.  Specifically, the law states:  “(a) After a person is granted retired pay under this chapter, or notified in accordance with sections 12731(d) of this title that the person has completed the years of service required for eligibility for retired pay under this chapter, the person’s eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service performed as required by section 12731(a)(2) of this title unless it resulted directly from the fraud or misrepresentation of the person.  (b)  The number of years of creditable service upon which is retired pay is computed may be adjusted to correct any error, miscalculation, misinformation or administrative determination and when such correction is made the person is entitled to retired pay in accordance with the number of years of creditable service, as corrected, from the date the person is granted retired pay.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  Evidence of record shows that the applicant was a member of the Naval Reserve from 24 April 1938 to 6 February 1941.  

2.  Evidence of record shows that the applicant served in the Department of the Coast Guard as a Merchant Marine from 7 December 1941 to 15 August 1945.  His DD Form 214, as amended by a DD Form 215 (dated 30 June 1989), covers the period 7 December 1941 to 15 August 1945 and clearly shows in the remarks section that this service was administratively established as active duty for purposes of Veterans Administration benefits only.

3.  The applicant’s records also show that he did not serve a period of active duty during World War I or World War II or a period of active duty (other than for training) during the Korean conflict, the Berlin crisis or the Vietnam era.

4.  Evidence of record shows the applicant completed over 22 years of service as a member of a reserve component.  

5.  The Board noted that the applicant was erroneously notified of approval of his request for retired pay by RCPAC letter, dated 4 February 1976.  The Board also noted the applicant was notified by telephone on 19 February 1976 and by letter, dated 19 February 1976, that he was not entitled to retired pay and orders had been revoked.

6.  The Board considered the applicant’s contention that “RCPAC was in violation of 10USC1406 [now 10USC12738] because there was no act of Fraud.”  The provision of law cited by the applicant clearly applies to computation of the number of years of creditable service and precludes denial of retired pay, after certification notification has been made, based on error, miscalculation, misinformation or administrative determination related to years of service.  The case under review is not a matter of denial of non-regular retired pay based on error, miscalculation, misinformation or administrative determination related to the number of the applicant’s qualifying years of service.  Rather, the denial of retirement benefits in this case is based on law which requires those persons, who served in a reserve component prior to 15 August 1945 to perform active duty during World War I or World War II or to perform active duty (other than for training) during the Korean conflict, the Berlin crisis or the Vietnam era in order to be eligible for non-regular retired pay.  Therefore, the Board finds that RCPAC did not violate 10USC1406 (now 10 USC12738) when it revoked orders entitling the applicant to retired pay for non-regular service.

7.  Evidence of record clearly shows that the applicant did not perform active duty required by law to be eligible for non-regular retired pay; therefore, the Board has determined that he was not eligible at the time of his application for retired pay and is not now eligible for non-regular retired pay and benefits.  

8.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

9.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

JLP_____  TAP____  EWL_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998013324	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990617	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19710713	
DISCHARGE AUTHORITY	AR 135-178	
DISCHARGE REASON	TRANSFER TO THE RETIRED RESERVE	
BOARD DECISION	DENY	
REVIEW AUTHORITY	MR HARRELL	
ISSUES         1.	113.00	
2.		
3.		
4.		
5.		
6.