IN THE CASE OF:	

		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20080006444 


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 that the 10 percent special pay for being awarded the Soldier's Medal be added to his retirement pay.

2.  The applicant states, in effect, the Soldier's Medal was awarded for heroism and is considered to be equivalent to the Distinguished Service Cross.  He further states he should have been awarded the special pay just as if he was awarded the Distinguished Service Cross.

3.  The applicant, in support of his application, provides copies of his previously submitted application with the Army Board for Correction of Military Records response; his letter to and the response from the Awards Branch, Human Resources Command (HRC); a letter from the Army Decorations Board; a description of the Soldier's Medal from the Internet; his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 30 April 1971; a letter showing he was presented with the award of the Soldier's Medal; a news article, dated 11 June 1965; an additional excerpt from the Internet; and General Orders showing his award of the Soldier's Medal.

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 military personnel record shows he enlisted in the Regular Army on 5 April 1951 and served continuously until his retirement.  At the time of his retirement, the applicant was serving in military occupational specialty 74F (Computer Programmer).

3.  Headquarters, Department of the Army General Orders Number 27, dated 
13 August 1965, awarded the applicant the Soldier's Medal.  According to the order, the applicant distinguished himself by heroism in Izmir, Turkey on 
22 November and 25 November 1964.  The order states the applicant, as a member of a Scuba Club, unhesitatingly volunteered to participate in a rescue effort to save the lives of an Army sergeant and two Turkish nationals who were in a taxi that had plunged into the extremely deep waters of Izmir Bay.  The order states the applicant displayed complete disregard for his own safety in his effort to locate the missing men by repeatedly diving into the murky, turbulent waters of the Bay which was littered with debris and covered with a film of gasoline.

4.  On 14 March 1971, the Army Decorations Board considered the citation pertaining to the award of the Soldier's Medal and all allied papers in connection therewith for possible award of 10 percent increase in retired pay.  It was determined that the circumstances surrounding this award did not constitute an act of extraordinary heroism.

5.  On 30 April 1971, the applicant was released from active duty and placed on the Retired List under the provisions of Title 10 United States Code (USC), Section 3914.  He had completed 20 years and 26 days of active service.

6.  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.  Awards of the Soldier's Medal will not be made solely on the basis of having saved a life.  


7.  Army Regulation 600-8-22 provides in pertinent part for award of the Distinguished Flying Cross.  The regulation states that the Distinguished Flying Cross is awarded to any person who, while serving in any capacity with the Army of the United States, distinguished himself or herself by heroism or extraordinary achievement while participating in aerial flight.  The performance of the act of heroism must be evidenced by voluntary action above and beyond the call of duty.  The extraordinary achievement must have resulted in an accomplishment so exceptional and outstanding as to clearly set the individual apart from his or her comrades or from other persons in similar circumstances.

8.  Army Regulation 600-8-22 provides, in pertinent part, that the Distinguished Service Cross is awarded to a person, who while serving in any capacity with the Army, distinguished himself or herself by extraordinary heroism while engaged in action against an enemy of the United States not justifying award of the Medal of Honor.  The act or acts of heroism must have been so notable and have involved risk of life so extraordinary as to set the individual apart from his or her comrades.

9.  Army Regulation 600-8-22 provides, in pertinent part, that a Soldier who has been awarded the Soldier's Medal may be credited with extraordinary heroism if it is determined that the heroism was equivalent to the required for award of the Distinguished Service Cross.

10.  Title 10 USC Section 3991 (Computation of retired pay) provides that if a member who is retired under Section 3914 (retirement for length of service) of this title 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 percent (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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his Soldier's Medal is equivalent to the Distinguished Service Cross and that he is entitled to the 10 percent increase in his retirement pay.

2.  While the degree of heroism required for award of the Soldier's Medal is the same as that of the Distinguished Flying Cross, the Distinguished Flying Cross is awarded to a Soldier who distinguishes himself or herself by heroism or extraordinary achievement while participating in aerial flight, and the performance of the act of heroism must be evidenced by voluntary action above and beyond the call of duty, and must have resulted in an accomplishment so exceptional and outstanding as to clearly set the individual apart from his or her comrades or from other persons in similar circumstances.  Therefore, the applicant's contention of the Soldier's Medal being equivalent to the Distinguished Service Cross is without merit.

3.  In order to be eligible for the 10 percent increase in retired pay the applicant's act would have had to have been the result of extraordinary heroism and have involved risk of life so extraordinary as to set the individual apart from his or her comrades.  The Army Decorations Board determined, in 1971, that the applicant's acts did not constitute an act of extraordinary heroism or an extraordinary risk to his life.

4.  A review of the applicant's citation for the award of the Soldier's Medal shows the applicant distinguished himself by heroism and displayed a disregard for his own safety in his efforts to locate three missing men in murky, turbulent waters that was littered with debris and covered with a film of gasoline.  However, these acts, while evidenced as being voluntary and above and beyond the call of duty, do not constitute an act of extraordinary heroism at the extraordinary risk to his life.

5.  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 that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ___X____  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board wants the applicant and all others concerned to 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.  



      _______ _ 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)                                         AR20080006444



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ABCMR Record of Proceedings (cont)                                         AR20080006444



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