PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            24 October 2000   
	DOCKET NUMBER:   AR2000039115

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

	Mr. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Margaret Patterson		Chairperson	
	Mr. Edwin s. Castle		Member	
	Mr. John T. Meixell		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his DA Form 3713-E (Data for Retired Pay) be corrected to reflect that he was “a member of an armed force on 
24 September 1975” in order to be exempt from the Tax Reform Act of 1976.  The applicant notes he has attempted to correct this error through administrative channels but was told that this “type of request has to be submitted through the Board of Record Corrections.”

3.  Information available to the Board indicates that the applicant initially entered military service in 1960 and continued his affiliation until October 1966.  He had no military affiliation between October 1966 and 19 February 1974 when he returned to military service as a member of a Reserve component.  

4.  On 18 November 1992 the applicant was retired from active Federal service by reason of physical disability rated at 70 percent.  His DA Form 199 (Physical Evaluation Board (PEB) Proceedings) notes in item 10 that the applicant “was” a member or obligated to become a member of an armed force or reserve thereof on 24 September 1975.  However, when the applicant’s DA Form 3713-E was completed it erroneously indicated “no” in response to item 31 (A member of an armed force on 24 September 1975).

5.  Section 104, Title 26, United States Code states that with the passage of the Tax Reform Act of 1976, one of two conditions must be satisfied for military disability retired or severance pay to be exempt from Federal taxation.  One of those conditions is that on 24 September 1975 the individual was a member (including RC [Reserve Component] membership) of the armed forces of any country, the National Oceanic and Atmospheric Administration (NOAA and formerly the Coast and Geodetic Survey), the U.S. Public Health Service (USPHS), or was under binding written agreement to become such a member.

CONCLUSIONS:

1.  The evidence confirms that the applicant was a member of the U.S. armed forces on 24 September 1975 as confirmed in his military personnel file and in item 10 of his DA Form 199.  It appears that an error was made when his DA Form 3713-E was completed and as such it would be appropriate to correct that form to reflect “yes” in response to item 31.

2.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by deleting the word “no” and replacing it with the word “yes” in response to item 31 (A member of an armed force on 24 September 1975) on the applicant’s DA Form 3713-E.

BOARD VOTE:  

__esc___  ____jtm_  ____mp__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000039115	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001024	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	Grant	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.