RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 July 2007
      DOCKET NUMBER:  AR20070001156


      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. Loretta D. Gulley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. David K. Haasenritter         |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 he receive an additional 10
percent pay for being the recipient of a Silver Star.

2.  The applicant states, in effect, that he is entitled to an additional
10 percent retirement pay for being the recipient of the Silver Star.

3.  The applicant submitted a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge), a copy of a memorandum from
the Defense Finance and Accounting Service (DFAS), and a copy of General
Orders Number 190, dated 30 May 1953.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 30 June 1972.  The application submitted in this case is dated
10 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 record shows that he enlisted in the Regular Army on 25
June 1952.  He completed basic combat training and advanced individual
training and was awarded the military occupational specialty (MOS) 64C
(General Mechanic). The highest grade held was Sergeant First Class (E-7).

4.  On 30 June 1972, the applicant retired from active duty after
completing a total of 20 years and 8 days of active military service.  The
DD Form 214 he was issued shows he earned the Silver Star, the Combat
Infantryman Badge, the Korean Service Medal, the National Defense Service
Medal with one oak leaf cluster, the Republic of Vietnam Service Medal, the
Republic of Vietnam Campaign Medal with “60” Device, the Good Conduct Medal
(4th award), and
5 Overseas Service Bars.

5.  A DFAS memorandum, dated 27 December 2006, referred the applicant to
the ABCMR.

6.  General Orders Number 1990, Headquarters, 25th Infantry Division, APO
25, dated 30 May 1953, awarded the applicant the Silver Star.

7.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part,
that the Silver Star is awarded for gallantry in action against the enemy.
The required gallantry (spirited and conspicuous acts of heroism and
courage) must have been performed with marked distinction.  As with all
personal decorations, formal recommendations, approval through the chain of
command, and announcement in orders are required.

8.  Army Regulation 600-8-22, paragraph 1-40 (a), in pertinent part,
states, that United States Code (USC) Title 10, section 3991 provides that
any enlisted member who is credited with extraordinary heroism in line of
duty who retires after 20 years or more years active Federal service, is
entitled to 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 with
extraordinary heroism only if it is determined that the heroism display was
equivalent to that required for award of the Distinguished Service Cross.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to an additional 10 percent
pay as the recipient of the Silver Star.

2.  Evidence shows the applicant was awarded the Silver Star while assigned
to the RVN.  However, Army Regulations does not list the Silver Star as an
authorized award for receipt of increased retired pay.  Therefore, he is
not entitled to a 10 percent pay increase based on award of the Silver
Star.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 June 1972; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
29 June 1975.  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

___JS___  ___DKH__  ___LMD_  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.


                                     ___John Slone______
                                         CHAIRPERSON






                                    INDEX

|CASE ID                 |AR20070001156                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/07/17                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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