RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  2 August 2007
	DOCKET NUMBER:  AR20060017013 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Antoinette Farley

Analyst


The following members, a quorum, were present:


Mr. Curtis L. Greenway

Chairperson

Mr. Robert W. Soniak

Member

Ms. Karmin S. Jenkins

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, in effect, that his record be corrected to retroactively show a ten percent increase in his retired pay, effective 1 February 1974, based on award of the Soldier's Medal for heroism.

2.  The applicant states, in effect, that the Air Force failed to take any action after denying his request for award of the Soldiers Medal for heroism and later the Air Force officially presented him with the Soldiers Medal.

3.  The applicant provides copies of a self-authored letter further detailing his joint military service; two letters from Department of the Army, U.S. Army Human Resources Command, Alexandria, Virginia; a letter from the applicant to U.S. Army Reserve Personnel Center, dated 10 October 2005; five letters from the Department of the Air Force; his DD Form 214 (Report of Separation from Active Duty), dated 31 January 1974; his United States Air Force, Retirement Order; and his DD Form 215 (Correction to DD Form 214 (Certificate of Release or Discharge from Active Duty)), dated 12 January 2005 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 31 January 1974, the date of his release from active duty for the purpose of retirement.  The application submitted in this case is dated 27 November 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 initially enlisted in the Regular Army for three years on 16 April 1953.  He completed basic training and advanced individual training and was awarded military occupational specialty 112.77 (Heavy Weapons Infantryman).  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in Germany from 21 November 1954 through 16 August 1955.  The applicant was honorably discharged from active duty on 17 October 1958 and transferred to the United States Army Reserve (USAR).
4.  On 21 November 1958, the applicant enlisted in the Regular Army for a period of six years.  His DA Form 20 shows he served in Korea from 17 February 1959 through 9 March 1960.  

5.  On 20 November 1964, the applicant was honorably discharged from active duty.  The highest rank the applicant held was staff sergeant/pay grade E-6.  The applicant's record shows he was credited with 11 years, 7 months, and 5 days of total active service.

6.  The applicant provided a letter from the Department of the Air Force, Detachment 1, 89th Military Airlift Wing, Special Missions (MAC), Washington National Airport, Washington, DC, dated 24 February 1969.  This letter shows the applicant's command requested a determination on the applicant's request for a 10 percent increase in retirement pay based award of the Soldier’s Medal for heroism.  This letter further shows that the following was attached as supporting evidence:  "a.  General Order Number 40, issued by Headquarters Department of the Army Washington DC, 11 December 1964.  b.  Certificate awarding the Soldier’s Medal to [applicant's name removed] the 26th day of October 1964, signed by Major General, USA, The Adjutant General and The Secretary of the Army.  c.  Copy of Presentation from the President of the United States of America, authorized by Act of Congress, 2 July 1926, awarding the Soldier’s Medal to [applicant's name removed]."

7.  The applicant's record contains a DD Form 214 which shows he enlisted in the United States Air Force on 15 July 1969 and served until his retirement on
31 January 1974.  The highest rank the applicant held was master sergeant/pay grade E-7.

8.  The applicant provided a letter from the Department of the Air Force, Headquarters, Military Airlift Command, Scott Air Force Base, Illinois, dated 21 August 1969.  The letter shows that the applicant's was disapproved for award of the 10 percent increase in his retirement pay.

9.  Department of the Air Force issued Special Order Number AC31058, dated
25 October 1973, relieving the applicant from active duty for the purpose of retirement, effective 1 February 1974.

10.  The applicant provided a letter from the Department of the Air Force, Headquarters, Air Force Personnel Center, Randolph Air Force Base, Texas, dated 4 November 2004, which disapproved his award of the 10 percent increase in his retirement pay.  

11.  The applicant's record shows that he was issued a DD Form 215, dated 12 January 2005, which added award of the Soldier's Medal to the applicant’s
20 November 1964 DD Form 214.

12.  On 9 May 2005, the applicant requested that the Department of the Air Force reconsider his request for award of the ten percent increase in retirement pay.

13.  The applicant provided a letter from the Department of the Air Force, Headquarters, Air Force Personnel Center, Retirement Programs and Policy Section, Directorate of Personnel Program Management, dated 28 July 2005.  The letter notified the applicant that his request for reconsideration should be reviewed by the Secretary of the Army.  The command enclosed a DD Form 149 (Application for Correction of Military Records) for this purpose.

15.  On 10 October 2005, the applicant submitted his application to the Army Review Boards Agency for further consideration for award of the 10 percent increase in his retirement pay, based award of the Soldier’s Medal for heroism.  The applicant continues that he had applied to the Board in 2004. 

16.  A Department of the Army, U. S. Army Human Resources Command, Alexandria, Virginia memorandum, dated 22 September 2006, shows that the applicant was approved for, on behalf of the Secretary of the Army, a ten percent increase in his retired pay based on award of the Soldier's Medal for heroism.  The letter also informed the applicant that ten percent in retired pay is not to exceed the seventy-five percent limit on total retired pay.  The letter continues that the effective date for the increase would be August 31, 2006.  The letter concluded that the appropriate action would be taken to amend his retirement orders and to notify the Defense Finance and Accounting Service of this action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the Secretary of the Army's approval of a ten percent increase in retired pay based on award of the Soldier's Medal for heroism should be made retroactive to 1 February 1974 was considered and determined to have merit.

2.   Evidence shows that, on 26 October 1964, the applicant was approved for award of the Soldier's Medal for heroism.  



3.  Evidence shows that, on 22 September 2006, the applicant's request for a ten percent increase in retired pay based on award of the Soldier's Medal for heroism was approved by the Secretary of the Army with 31 August 2006 as the effective date for the increase in his retired pay.  

4.  It is clear that the applicant made numerous attempts to correct his records to show award of the Soldier’s Medal and that through no fault of his own his records were not corrected in a timely manner.  As a matter of equity, it would be appropriate to amend the applicant’s retired pay to show the effective date of the ten percent increase as 1 February 1974, the date that he began receiving retirement pay.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 1 February 1974; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 31 January 1978.  The applicant did not file within the 3-year statute of limitations; however, based on the available evidence it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

_RWS____  __KSJ__  _CLG___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all the Department of the Army records of the individual concerned be corrected by amending his retirement pay to show a ten percent increase effective 1 February 1974.




__Curtis L. Greenway_
              CHAIRPERSON


INDEX

CASE ID
AR20060017013
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.