RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 SEPTEMBER 2005
      DOCKET NUMBER:  AR20050000256


      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             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley Powell                |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Jeanette McCants              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his retired pay be increased because he was
awarded the Bronze Star Medal with “V” device for heroism in combat against
an armed hostile force in the Republic of Vietnam on 25 January 1968, and
that the pay be retroactive to 16 June 1993.

2.  The applicant states that personnel neglected to include on his
retirement orders that he was entitled to a 10 percent increase in retired
pay.  He talked to the Defense Finance and Accounting Service (DFAS), who
informed him to send in his award orders and they would pay him, except
that it was not on his retirement orders; consequently, he was advised to
apply to this Board.  He was personally told by other retirees that he was
entitled to the 10 percent increase.

3.  The applicant provides a copy of the order awarding him the Bronze Star
Medal with “V” device, a copy of his retirement order, and a copy of his
         DD Form 214 (Certificate of Release or Discharge from Active
Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 15 June 1993.  The application submitted in this case is
dated        23 December 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant is a former Soldier who was permanently retired from the
Army on 15 June 1993 because of a physical disability.  He had over 23
years of active service.  He received a disability rating of 20 percent.

4.  The applicant served in Vietnam from October 1967 to October 1968.  In
     24 August 1968 he was awarded the Bronze Star Medal with “V” device
for his heroism in action on 25 January 1968.

5.  The applicant’s DD Form 214 reflects the above award, and includes his
numerous other awards, to include the Purple Heart and Combat Medical
Badge.

6.  Section 3991, Title 10, United States Code, provides that any enlisted
member who is credited with extraordinary heroism in line of duty who
retires after 20 or more years of active Federal service, is entitled to a
10 percent increase in retired pay, subject to the 75 percent limit on
total retired pay.  Any awardee of the Medal of Honor, the Distinguished
Service Cross, Navy Cross, or Air Force Cross satisfies the requirement for
extraordinary heroism.  An enlisted awardee of the Distinguished Flying
Cross awarded for non-combat-related heroism, or the Soldier’s Medal may be
credited by the Secretary of the Army only if it is determined that the
heroism displayed was equivalent to that required for award of the
Distinguished Service Cross.

DISCUSSION AND CONCLUSIONS:

1.  The rule governing a 10 percent increase in retired pay is as indicated
above. The applicant’s heroism in combat is well documented and not to be
belittled.  His personal bravery at the risk of his own life was indeed
heroic and deserving of the Bronze Star Medal with “V” device.

2.  Unfortunately, that award does not satisfy the requirement for
extraordinary heroism, such as the award of the Medal of Honor,
Distinguished Service Cross, etc.  Consequently, he is not entitled to a 10
percent increase in retired pay.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 June 1993; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on          14 June 1996.  The applicant did not file within the 3-
year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__SP____  __RD___  ___JM  __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____ Shirley Powell______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000256                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050913                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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