IN THE CASE OF:
BOARD DATE: 12 June 2008
DOCKET NUMBER: AR20080002216
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, that his retired pay be increased based on his having received the Silver Star.
2. The applicant states, in effect, that he was awarded the Silver Star in the Republic of Vietnam (RVN). He states that at the time of his retirement, he asked if he was entitled to get an additional 10 percent (%) in retired pay based on having been awarded the Silver Star and was told they did not know. He claims that based on information he has received through Army Knowledge Online (AKO) and from United States Army Human Resources Command (HRC), he qualifies to receive an additional 10% in retired pay based on the Silver Star.
3. The applicant provides the following documents in support of his application: Enlisted Records Brief (ERB); Silver Star Orders and Citation; Application for Voluntary Retirement (DA Form 2339); Retirement Orders; and Separation Document (DD Form 214).
CONSIDERATION OF EVIDENCE:
1. The applicant's record shows that on 31 October 2005, he was honorably released from active duty (REFRAD), in the grade of sergeant first class (SFC), for the purpose of retirement. At the time, he had completed a total of 20 years and 29 days of active military service.
2. The applicant's record shows that served in the RVN for 1 year and 1 day between 1968 and 1969, and that he was awarded the Silver Star for gallantry in action in the RVN on 3 July 1968.
3. On 8 March 2005, the applicant submitted a DA Form 2339 requesting retirement on 31 October 2005, and on 7 April 2005, his retirement application was approved.
4. Office of the Administrative Assistant to the Secretary, United States Army Resources and Programs Agency Orders 102-16, dated 12 April 2005, directed the applicant's REFRAD on 31 October 2005, and his placement on the Retired List, in the grade of SFC, on 1 November 2005.
5. On 31 October 2005, the applicant was honorably REFRAD for the purpose of retirement. The DD Form 214 he was issued at the time includes the Silver Star in the list of awards contained in Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized).
6. Title 10 of the United States Code, Section 3991 (10 USC 3991) provides guidance on the computation of retired pay. It states, in pertinent part, that if a member who is retired under 10 USC 3914 (Twenty-Year Law) had been credited by the Secretary of the Army with extraordinary heroism in the line of duty, the members retired pay shall be increased by 10 percent. The Secretarys determination as to extraordinary heroism is conclusive for all purposes.
7. Army Regulation 635-200 (Enlisted Administrative Separations) provides the Army's enlisted separations policy. Chapter 12 contains guidance on retirement, and Paragraph 12-4 contains guidance on the twenty-year retirement law
(10 USC 3914) and outlines what constitutes extraordinary heroism in the line of duty for the purpose of awarding an additional 10 percent in retired pay. It states, in pertinent part, that a Soldier who retires under the provisions of 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 by 10 percent. There are no regulatory provisions providing for an increase in retired pay based on award of the Silver Star.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he should have received an additional
10 percent in retired pay based on his having been awarded the Silver Star was carefully considered. However, there is insufficient evidence to support this claim.
2. By law, an additional 10 percent in retired pay is authorized to certain enlisted Soldiers who retire under the provisions of 10 USC 3914, who had been credited by the Secretary of the Army with extraordinary heroism in the line of duty. The Secretarys determination as to extraordinary heroism is identified in the governing regulation as those members who were awarded the Medal of Honor, Distinguished Service Cross, or Navy Cross for extraordinary heroism. There are no regulatory provisions for granting an extraordinary heroism Secretarial determination, or the additional 10 percent in retired pay, based on award of the Silver Star. As a result, there is an insufficient evidentiary basis to support granting the requested relief.
3. The applicant and all others concerned should know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation. The applicant and all Americans should be justifiably proud of his service in arms.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____x ___ ___x____ ___x____ 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.
_________x______________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20080002216
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