MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 July 1999                    
	DOCKET NUMBER:   AR1999021260

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis W. Barbee		Chairperson	
	Mr. James M. Alward		Member	
	Mr. Robert G. Hinkle		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:  That his records be corrected to show additional retirement points for an active duty period from June 1975 to January or February 1976.  He submits no documentation in support of this request.

APPLICANT STATES:  That while enroute to active duty for training (ADT) he became ill and was hospitalized.  He was given orders that extended his active duty 7 or 8 months while recovering from his illness.  This active duty time was not added to his total retirement points for retired pay purposes.

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

At the time of the incident the applicant was assigned to the Individual Ready Reserve (IRR) in the grade of O-3.  In the available record are orders issued by the Reserve Personnel Center (RCPAC) on 22 May 1975 directing the applicant to report for ADT at Fort Drum, New York.  His reporting date is shown as 15 June 1975 with a first day of training as 16 June 1975.  The authorized period of ADT is shown as 13 days.  Supplemental instructions provided with the orders also state that travel by privately owned vehicle (POV) is authorized provided it does not interfere with reporting date.

Also in the available record is a welcome letter from the ARNG unit he was supporting during their annual training (AT).  It states that their AT period was from 14 to 28 June 1975 and that if he was unable to attend AT he was to contact RCPAC for amended orders.

The available civilian hospital records show that he was admitted for an illness on 13 June 1975.  He was discharged from the hospital on 29 June 1975. A line of duty (LOD) report that was approved on 15 January 1976 states that the applicant’s reporting date was 15 June 1975 and Army Regulation 37-106 provided 2 days travel time based on the distance involved.  A finding of “In Line of Duty” was approved.

A 19 January 1976 statement from an unknown organization states that the applicant was found by proper authority to have contracted a disease on 13 June 1975 in line of duty while on active duty and is entitled to pay and allowances through 14 November 1975.  It was signed by a Medical Service Corps first lieutenant with the title of Chief, Patient Administration Division.

A 26 February 1976 memorandum from the finance office at Fort Riley, Kansas questioned the validity of the pay claim.  It questioned the use of AR 37-106 in determining travel status and pay since it states that the referenced chapter is not applicable to members of the Reserve Components on call to active duty.  The applicable portion of the regulation also states that when order to active duty is for 30 days or less travel time allowed is computed based on air transportation, which is 1 day.  Also travel may not commence more than 1 day prior to report date.  It was believed that the LOD determination was based on invalid references and that the applicant was not entitled to pay and allowances for the period cited.  This memorandum was sent to the Army Finance and Accounting Center (USAFAC) for determination and action.

The doubtful claim correspondence was finally forwarded to HQDA, Office of the Judge Advocate General (OTJAG) for a legal review.  The OTJAG notes on 27 May 1976 that the applicant’s ADT orders clearly showed a reporting date of 15 June 1975 and the applicable regulations only allowed a 1 day prior travel time authorization in a duty status. However, they also note the possible confusion on the proper reporting date in the letter from the ARNG unit he was supporting and in a phone call reported by him when he called the unit to confirm the 14 June 1975 reporting date.  The determination concerning the payment of benefits would rest with the appropriate reporting date and was not a subject within the scope of OTJAG.

In a 8 June 1976 endorsement to USAFAC from The Adjutant General it was determined from all the evidence available that the applicant was not in a duty status on 13 June 1975.  The orders published by the applicant’s organization were considered firm and official and the ARNG unit had no legal authority to change his reporting date.  Since he was not on official travel on 13 June 1975, his illness on that same date did not require a LOD determination.  The prior LOD was declared null and void.

On 24 March 1987 he was notified that he had completed the required service for eligibility for retired pay at age 60.  Effective 15 July 1998 he was discharged from the ARNG in grade E-6 and transferred to the Retired Reserve.

Title 10, USC, section 3722, in effect at the time, provided that each Reserve of the Army member who contracts a disease in line of duty while on active duty in time of peace is entitled to medical and surgical care, basic pay and allowances, subsistence during hospitalization, and necessary transportation.  In a historical note to this section it was further noted that the words “under proper orders” were omitted as surplusage or redundant.

Army Regulation 37-6 provides authority for travel and transportation allowances and the DOD Pay Manual (DODPM) provides pay and allowance entitlements.  These regulatory authorities are in concert concerning authorized travel time for a member of the Reserve Component ordered to active duty for 30 days or less.  Travel time is based on the basis of reasonably available air transportation of not more than 1 day in this circumstance.  Although travel by POV is not prohibited, no delay in reporting to a duty station or authorization for additional duty days is permitted for travel by POV.

Army Regulation 140-1 provides the policy for Army Reserve training.  It provides that AT tours of individuals ordered to AT are normally limited to 12 days excluding travel time.  AT will normally take place from Monday of the first week through Friday of the second week.  15 June 1975 was a Sunday reporting date on his official orders.  13 days of AT would have ended on Friday, 27 June 1975.  Army Regulation 140-185 provides the policy for awarding retirement point credits. It provides for retirement point credit for active duty, ADT, AT, inactive duty training, and completion of specified correspondence courses.

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.  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.

2.  The applicant has not shown, and the available record does not support his contention that he was serving on active duty in an authorized travel status on 13 June 1975 when he was stricken with an illness.  Notwithstanding that the applicant may have believed that his AT reporting date was 14 June 1995, in accordance with Title 10, USC, section 3722 the ARNG unit he was supporting had no authority to modify his AT orders and he was not in an official travel status 2 days prior to his authorized reporting date.

3.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

4.  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

__cwb___  __jma___  __rgh___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021260	
SUFFIX		
RECON		
DATE BOARDED	19990721	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	135.02	
2.		
3.		
4.		
5.		
6.