RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2007
	DOCKET NUMBER:  AR20060010592


	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. Gerard W. Schwartz

Acting Director

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright

Chairperson

Ms. Laverne M. Douglas

Member

Mr. Ernestine I. Fields

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 reinstatement of his 10 percent increase in retired pay retroactive to 1985.

2.  The applicant states, in effect, that the Army failed to properly notify the Defense Finance and Accounting Service (DFAS) that his military records confirmed he was entitled to the 10 percent increase in retired pay based on award of the Distinguished Flying Cross (DFC).  The applicant states his 
10 percent increase in retired pay was stopped based on an administrative decision rather than what is in his records. 

3.  The applicant further states that he stopped receiving the 10 percent increase in retired pay in February 1985.  He continues that DFAS notified him that the increase was stopped because they had not been properly notified that he was entitled to receive the 10 percent increase in retired pay.  The applicant concludes that he is a 100 percent service connected disabled veteran on a fixed income with health care and cost of living issues.

4.  The applicant provides a letter to his Congressional Representative, dated 
28 June 2006; a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with the period ending 4 May 1967; U.S. Military Assistance Command, Vietnam General Orders Number 1284, dated 14 June 1965; a DA Form 3713 (Data for Retired Pay), dated 19 December 1972; Headquarters, Sixth U. S. Army Letter Orders Number 11-454, dated 
9 November 1972; a U.S. Army Finance and Accounting Center letter, dated 
6 February 1985; a DFAS letter to the applicant's Congressional Representative, dated 11 July 2006; a Congressional Representative letter to the applicant' dated 20 July 2006; and a Pioneer Medical Center Pharmacy bill, dated 3 May 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 31 January 1973.  The application submitted in this case is dated 22 July 2006.

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 enlisted in the Regular Army on 27 January 1953.  He arrived in Vietnam and was assigned to the 118th Aviation Company (Air Mobile Light) on or about 12 August 1964.  

4.  U.S. Military Assistance Command, Vietnam General Orders Number 1284, dated 14 June 1965, show that the applicant was awarded the DFC for heroism while participating in aerial flight on 27 August 1964.  

5.  He departed Vietnam on or about 12 August 1965.  

6.  A DA Form 3713, dated 19 December 1972, shows the years of active service calculated for the applicant's retirement pay.  Item 34 (Eligible for 10% Increase in Retired Pay Based on Extra Ordinary Heroism) shows the box was checked "Yes" based on award of the DFC.

7.  By letter to the Office of The Adjutant General, dated 30 January 1973, the applicant stated that he was due to retire and was the recipient of the DFC and that he was informed that he was eligible for a 10 percent increase in retired pay. He continued that he needed assistance with the proper procedures for applying to receive the pay.  

8.  On 31 January 1973, the applicant retired.

9.  On 15 March 1973, the Office of The Adjutant General acknowledged the applicant's request for a 10 percent increase retired pay and requested that he forward a copy of his orders awarding him the DFC and any other documentation pertaining to the award.  On 21 June 1973, the applicant complied with the request from the Office of The Adjutant General. 

10.  On 13 August 1973, the Army Decorations Board disapproved the applicant's request for a 10 percent increase in retired pay.  The reason for the disapproval was based on “insufficient evidence of risk of life to warrant recommended award.”

11.  On 8 August 1974, the Military Awards Branch notified the applicant that the circumstances surrounding his award of the DFC did not fulfill the requirements for entitlement to a 10 percent increase in retired pay.

12.  On 8 February 1985, the U.S. Army Finance and Accounting Center (now DFAS) notified the applicant that Retired Pay Operations had been notified by the U.S. Army Military Personnel Center that his entitlement to an additional 
10 percent in retired pay (heroism pay) was erroneously awarded due to an error by the Army in notifying them of his eligibility for it.  Termination of the pay was effective February 1985.  The document further stated that no action would be taken on prior payments pending review of the matter.

13.  The Department of Defense Financial Management Regulation (DODFMR) provides that enlisted members retired after the completion of 20 but less than
30 years of active service are eligible to receive 10 percent additional retired or retainer pay if credited with extraordinary heroism in the line of duty.  The Secretary of the Military Department concerned has the authority to grant this additional pay.

14.  Army Regulation 600-8-22 prescribes Army policy and criteria concerning individual military awards.  In pertinent part, it defines extraordinary heroism as an act or acts of heroism or gallantry involving the risk of life.  The minimum level of such valorous performance in combat is consistent with a recommendation for the Distinguished Service Cross.  

15.  Army Regulation 635-200, paragraph 12-4(c) sets forth the policy and criteria for receiving a 10 percent increase in retired pay for extraordinary heroism.  In pertinent part, it provides that a Soldier who has been awarded the Distinguished Flying Cross, the Soldier’s Medal, or equivalent Navy decoration may be credited with extraordinary heroism if it is determined that the heroism was equivalent to that required for award of the Distinguished Service Cross.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant was awarded the DFC for heroism while serving in Vietnam.  Prior to his retirement he requested a 
10 percent increase in retired pay for receiving the DFC. 

2.  The applicant retired on 31 January 1973.  On 13 August 1973, the Army Decorations Board disapproved the applicant's request for a 10 percent increase in his retired pay for heroism.  It appears at that time neither the U.S. Army Finance and Accounting Center nor the applicant was notified of the board's decision.  

3.  DFAS notified the applicant on 8 February 1985 that his entitlement to an additional 10 percent in retired pay was erroneously awarded to him and stopped its payment.  It appears that DFAS's intention was not to take action on recouping any prior payments.  However, the fact it was erroneously paid for about 12 years does not obligate reinstatement of the increase.

4.  Regrettably, in view of the foregoing, there is insufficient evidence to warrant granting the applicant's request.
5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 8 February 1985; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
7 February 1988.  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

__KLM __  __LMD  _  __EIF___  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.




___Kenneth L. Wright       _
          CHAIRPERSON




INDEX

CASE ID
AR20060010592
SUFFIX

RECON

DATE BOARDED
10 APRIL 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. SCHWARTZ
ISSUES         1.
136.0600.0000
2.

3.

4.

5.

6.