RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 August 2007
      DOCKET NUMBER:  AR20070002764


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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, an increase in his retired pay based
on heroism.

2.  The applicant states, in effect, he recently discovered he was eligible
to receive extraordinary heroism pay upon his retirement in accordance with
Title 10 of the United States Code, Section 6330 (10 USC 6330), which
provides for enlisted members who have been credited with the stipend by
their Service Secretary.  He further states it is his understanding that
this entitlement should be retroactive to his retirement date.  He claims
the justification for the stipend is his service with the 9th Infantry
Division in the Republic of Vietnam (RVN), during which he was awarded the
Silver Star for heroism on 6 May 1969, while serving as a platoon sergeant.
 He requests the orders awarding him the Silver Star be corrected by adding
the entitlement to heroism pay.

3.  The applicant provides his separation document (DD Form 214) and
Silver Star Orders in support of his application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that on 30 June 1975, he was honorably
released from active duty for the purpose of voluntary retirement.  The DD
Form 214 he was issued at the time shows he completed a total of 20 years
and
14 days of active military service.

3.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214
shows he earned the following awards:  National Defense Service Medal;
Silver

Star; Meritorious Service Medal; Bronze Star Medal with "V" (Valor) Device;

Army Commendation Medal 2nd Oak Leaf Cluster with "V" Device; Air Medal
(2nd Award); Purple Heart 1st Oak Leaf Cluster; Army Good Conduct Medal
(6th Award); Army of Occupation Medal-Berlin; Vietnam Service Medal with
4 bronze service stars; RVN Campaign Medal with 60 Device; RVN Gallantry
Cross with Palm Unit Citation; RVN Civil Action Honor Medal First Class
Unit Citation; Meritorious Unit Commendation (2nd Award); and Combat
Infantryman Badge.  The Medal of Honor, Distinguished Service Cross or Navy
Cross is not included in the list of awards documented in his record or on
his DD Form 214.

4.  10 USC 3390 provides guidance on the computation of retired pay and
provides the authority to provide an additional 10 percent in retired pay
for certain enlisted members retired under 10 USC 3914, who were credited
with extraordinary heroism.  It states, in pertinent part, that if a member
has been credited by the Secretary of the Army with extraordinary heroism
in the line of duty, the member’s retired pay shall be increased by 10 (but
to not more than 75 percent of the retired pay base upon which the
computation of such retired pay is based).  The Secretary’s determination
as to extraordinary heroism is conclusive for all purposes.

5.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations) provides guidance on enlisted administrative separations from
the Army.  Chapter 12 contains the policies and procedures for enlistment
retirement.  Paragraph 12-4 contains guidance on the 20-Year Retirement Law

(10 USC 3914).  It states, in pertinent part, 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.

6.  Army Regulation 600-8-22 (Military Awards) provides the Army's awards
policy.  Chapter 3 contains guidance on individual awards.  Paragraph 3-8
contains guidance on the Distinguished Service Cross.  It states, in
pertinent part, that it is awarded to a person who, while serving in any
capacity with the Army, distinguished himself or herself by extraordinary
heroism not justifying the award of a Medal of Honor.

7.  Paragraph 3-10 of the awards regulation contains guidance on the SS.
It states, in pertinent part, that it is awarded to members cited for
gallantry in action against an enemy of the United States while engaged in
military operations involving conflict with an opposing foreign force, or
while serving with friendly
foreign forces engaged in armed conflict against an opposing armed force in
which the United States is not a belligerent party.  The required
gallantry, while of a lesser degree than that required for the
Distinguished Service Cross, must nevertheless have been performed with
marked distinction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim of entitlement to additional retired pay for
extraordinary heroism was carefully considered.  However, there is
insufficient evidence to support this claim.

2.  By law, the retired pay of an enlisted member credited with
extraordinary heroism in the line of duty by the Secretary of the Army will
be increased by
10 (but to not more than 75 percent of the retired pay base upon which the
computation of such retired pay is based).  The Secretary of the Army has
determined that only enlisted members of the Army who have been awarded the
Medal of Honor, Distinguished Service Cross, or Navy Cross will qualify for
additional retired pay under this provision of the law, as has been
established in Paragraph 12-4 of Army Regulation 635-200.

3.  In light of the regulatory criteria established by the Secretary of the
Army, as outlined in the preceding paragraph, the regulatory criteria
established for additional retired pay for extraordinary heroism has not
been met in this case.  Therefore, there is an insufficient evidentiary
basis to grant the requested relief.  This action in no way diminishes the
heroic service of the applicant in the RVN.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LE  __  __JTM __  __RTD __  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.




                                  _____Lester Echols______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070002764                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/08/23                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1975/06/30                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |107.0007                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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