RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 June 2007
	DOCKET NUMBER:  AR20070000612 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Ms. Sherri V. Ward

Chairperson

Mr. Richard T. Dunbar

Member

Mr. David W. Tucker

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 retired pay be increased due to his award of the Soldier’s Medal. 

2.  The applicant states, in effect, that his award citation for the Soldier’s Medal should have included entitlement to heroic pay.  He believes that it was an oversight when the citation was published. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 September 1985, and a copy of the orders awarding him the Soldier’s Medal, in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 30 September 1985, the date he separated for the purpose of retirement.  The application submitted in this case is dated 4 January 2007.

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's military records show he entered active duty (AD) on 21 September 1965.  He was promoted to pay grade E-4 on 23 September 1966. 
He continued to serve until he was honorably discharged on 29 November 1966, in pay grade E-4, for immediate reenlistment.  

4.  He reenlisted on 30 November 1966.  He was promoted to staff sergeant (SSG/E-6) on 19 February 1969.  He served in Vietnam from 18 August 1969 to 16 August 1970.  He continued to serve until he was honorably discharged on 7 September 1972, for immediate reenlistment.  





5.  The applicant provides a copy of Headquarters, United States Army Vietnam General Orders Number 3793, dated 17 August 1970, which shows that he was awarded the Soldier’s Medal, for heroism, not involving actual conflict with an armed enemy, on 19 April 1970, in the Republic of Vietnam, while serving in the rank of SSG.  These orders did not indicate entitlement to heroic pay.

6.  This award is shown on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 7 September 1972.  

7.  The applicant reenlisted on 8 September 1972.  He served until he was honorably discharged on 29 July 1974, in order to accept an appointment in the United States Army Reserve (USAR) as a warrant officer.  He completed 8 years, 10 months, and 9 days of total active enlisted service.

8.  The applicant was appointed as a warrant officer one (WO1/W-1) effective 30 July 1974.  He was promoted to chief warrant officer three (CW3/W-3) with an effective date of 1 April 1981 and date of rank (DOR) of 5 March 1981.

9.  The applicant’s records contain a copy of DA Form 3713 (Data for Retired Pay), dated 22 May 1985, which shows that item 34 (Eligible for 10% Increase in Retired Pay Based on Extraordinary Heroism) is blank.  It also shows his retired grade and pay grade as "CW3."

10.  The applicant served until he was separated for the purpose of retirement on 30 September 1985.  He was placed on the Retired List effective 1 October 1985, in the rank and pay grade of CW3/W-3.  

11.  The applicant’s DD Form 214, dated 30 September 1985, shows he completed 11 years, 2 months, and 1 day of total AFS, as a warrant officer.

12.  On 23 April 2007, a memorandum was prepared by the Chief, Military Awards Branch, Army Human Resources Command (AHRC)-Alexandria.  The memorandum was in response to the applicant’s letter concerning his desire to obtain a 10-percent increase in his retired pay based upon his award of the Soldier’s Medal for heroism received during his service in the Republic of Vietnam.





13.  The memorandum stated that Section 3991, Title 10, United States Code (USC), provided that any enlisted member who is credited with extraordinary heroism in the line of duty who retires after 20 or more years AFS, is entitled to 10-percent increase in retired pay.  AHRC noted that his rank at the time of retirement was CW3.  Regrettably, he was not eligible for entitlement to a        10-percent increase in retired pay since Federal law only provides this entitlement to enlisted personnel retired after 20 years of service.  

14.  Army Regulation 635-200, paragraph 12-4, implements Title 10, United States Code, section 3914, which governs a 20-year retirement by a Soldier of the Regular Army, the Army National Guard of the United States, and the U.S. Army Reserve.  In pertinent part, the regulation provides that a request for retirement may be submitted by a Soldier who has completed 20 years, but less than 30 years, of active Federal service in the U.S. Armed Forces.  Approval of the request for retirement will be at the discretion of the Secretary of the Army.

15.  Paragraph 12-4(c) states that a soldier who retires under 10 USC 3914    and has been awarded the Medal of Honor, Distinguished Service Cross, or Navy Cross for extraordinary heroism will have his/her retired pay increased        10-percent.  However, the total retired pay (including the increase) may not exceed 75 percent of the basic pay upon which computed.  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.  In all cases involving extraordinary heroism, a copy of the order, that awards the decoration and the separate citation, if not contained in the order, will be submitted to Headquarters, AHRC-Alexandria, for verification and determination.  Previous letters of determination, more than 2 years old, will be submitted for confirmation and will be accompanied by the order awarding the decoration.

16.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Soldier's Medal is awarded for distinguished heroism not involving actual conflict with the enemy.  The same degree of heroism is required as for award of the Distinguished Flying Cross.  The performance must have involved personal hazard or danger and the voluntary risk of life under conditions not involving conflict with an armed enemy.  




17.  Paragraph 1-40, of Army Regulation 600-8-22, pertains to increased retired pay based on decorations-enlisted awardees.  It states that Title 10, USC 3991 provides that any enlisted member who is credited with extraordinary heroism in the line of duty who retires after 20 or more years 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, 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 with extraordinary heroism only if it is determined that the heroism displayed was equivalent to that required for award of the Distinguished Service Cross.  These provisions affect enlisted personnel who retire and who have been credited with extraordinary heroism whether or not such heroism was displayed while the individual was serving in an enlisted status. 

18.  Paragraph 1-40 also states that enlisted recipients of any of the six decorations referred to above will complete item 14 of the DA Form 2339 (Application for Voluntary Retirement), when applying for retirement.  If the recipient has not previously done so, written request for determination and confirmation of entitlement to increased retired pay will be forwarded to Commander, AHRC, Attn: AHRC-PDO-PA, Alexandria, VA 22332-0471.  The request will be accompanied by a copy of the order which awards the decoration and the citation, if not included in the order. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was awarded the Soldier’s Medal for heroism not involving actual conflict with an armed enemy on 19 April 1970, while serving in Vietnam, in an enlisted status, in the rank of SSG.  His orders did not indicate, at the time of publication, that he was entitled to heroic pay.  Regulation then in effect did not require such provisions to be added to the orders or citation. Therefore, he is not entitled to a correction of his orders awarding him the Soldier's Medal to show, heroic pay.

2.  The applicant continued to serve until he was honorably discharged to accept an appointment as a warrant officer.  He was honorably discharged on 29 July 1974.  He had completed 8 years, 10 months, and 9 days of total enlisted service.  

3.  The applicant was appointed as a warrant officer, attained the rank of CW3/W-3, and continued to serve until was separated for the purpose of retirement.  He had completed 11 years, 2 months, and 1 day of total warrant officer service.

4.  It is noted that the applicant failed to indicate in item 34, of his DA Form 3713, that he was awarded the Soldier's Medal, for entitlement to an increase in his retired pay.  He completed over 20 years of AFS and was placed on the Retired List effective 1 October 1985.

5.  The applicant was informed by AHRC that any enlisted member who is credited with extraordinary heroism, in the line of duty, who retires after 20 or more years AFS, is entitled to a 10 percent increase in their retired pay.  However, his rank at the time of retirement was CW3.  He was not eligible for an increase in pay because the law only provided this entitlement to enlisted personnel who retired after 20 years of service.  Therefore, based on the evidence and applicable Federal statute in this case, he is not entitled to an increase in his retire pay based on his award of the Soldier's Medal.   

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 September 1985; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 29 September 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

__SW___  __RTD __  ___DWT_  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.




_____Sherri V. Ward______
          CHAIRPERSON




INDEX

CASE ID
AR20070000612
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070621
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19850930
DISCHARGE AUTHORITY
AR 635-200, chap 12
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
128
2.

3.

4.

5.

6.