IN THE CASE OF:	

		BOARD DATE:	1 October 2009    

		DOCKET NUMBER:  AR20090008203 


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, a 10 percent (%) increase in retirement pay based on receipt of the Soldier's Medal.

2.  The applicant states, in effect, he was inappropriately denied a 10% increase in retired pay based on receipt of the Soldier's Medal at the time of his retirement. 

3.  The applicant provides the following documents in support of his application:  U.S. Total Army Personnel Command memorandum, dated 22 January 1997; Headquarters, U.S. Army Medical Department Center, Fort Sam Houston, TX memorandum, dated 6 January 1997; and Headquarters, United States Army Vietnam, General Orders Number 3790, dated 5 August 1968.

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.  On 30 April 1997, the applicant was honorably retired, in the rank/grade of sergeant first class (SFC)/E-7, by reason of completion of sufficient service for retirement.  The DD Form 214 he was issued at that time shows he completed a total of 20 years, 1 month, and 11 days of active federal service.  

3.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he earned the following awards during his tenure on active duty:  Soldier's Medal, Bronze Star Medal with "V" (Valor) Device, Purple Heart (5th Award), Army Commendation Medal
(2nd Award), Army Achievement Medal (2nd Award), Valorous Unit Award, Army Good Conduct Medal (4th Award), Army Reserve Components Achievement Medal, National Defense Service Medal (2nd Award) Vietnam Service Medal with 1 silver star and 3 bronze service stars, Army Service Ribbon, Overseas Service Ribbon (3rd Award), Overseas Service Ribbon (3rd Award), Republic of Vietnam (RVN) Campaign Medal, Expert Marksmanship Qualification Badge with 
Rifle Bar, Combat Infantryman Badge, Parachutist Badge, Driver and Mechanic Badge with Driver-W Bar, Drill Sergeant Identification Badge, and U.S. Army Gold Recruiter Badge.

4.  The applicant's Official Military Personnel File (OMPF) contains General Orders Number 3790, dated 5 August 1968, which awarded him the Soldier's Medal for heroism not involving conflict with the enemy in the RVN on 20 July 1968.  This document shows he earned this award for valorous actions on
20 July 1968, while exposing himself to great danger during an attempt to suppress a violent fire at the Dong Nai River fuel jetty near Long Binh, RVN.

5.  On 22 January 1997, the Army Decorations Board (ADB), in response to a request for verification and determination for a 10% increase in the applicant's retired pay based on award of the Soldier's Medal, determined that the circumstances surrounding the applicant's award of the Soldier's Medal did not fulfill the requirements for entitlement to a 10% increase in his retired pay.  Accordingly, payment of the increased retirement was not authorized.

6.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides procedures to implement laws and policies governing voluntary retirement of Soldiers of the Army for length of service.  Paragraph 12-4(c) provides guidance on the Twenty-year retirement law.  It states in pertinent part, that a Soldier who retires under Title 10, U.S. Code, section 3914 and has been awarded the Medal of Honor, Distinguished Service Cross (DSC), or Navy Cross for extraordinary heroism will have his/her retired pay increased 10%.  However, the total retired pay (including the increase) may not exceed 75 percent of the basic pay upon which computed.  

7.  Paragraph 12-4(c)(2) of the same regulation states, in pertinent part, that 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 DSC and his/her retired pay can be increased by 10%.  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, Department of the Army (AHRC-PDA), 2461 Eisenhower Avenue, Alexandria, VA 22332-0478, 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. 

8.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards policy.  Paragraph 3-8 of the awards regulation contains guidance on the DSC.  It states, in pertinent part, that the DSC 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; while engaged in an action against an enemy of the United States; while engaged in military operations involving conflict with an opposing or foreign force; or while serving with friendly foreign forces engaged in an armed conflict against an opposing Armed Force in which the United States is not a belligerent party.  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 their comrades.

9.  Paragraph 3-13 of Army Regulation 600-8-22 contains guidance on the Soldier's Medal.  It states, in pertinent part, that the Soldier's Medal is awarded to any person of the Armed Forces of the United States or of a friendly foreign nation who, while serving in any capacity with the Army of the United States, including Reserve Component Soldiers not serving in a duty status, as defined in Title 10, U.S. Code, section 101(d), at the time of the heroic act, who distinguished himself or herself by heroism not involving actual conflict with an enemy.  The same degree of heroism is required as that of the 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 will not be made solely on the basis of having saved a life.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his retired pay should be increased by 10% based on his having earned the Soldier's Medal was carefully considered.  However, by regulation in order to be authorized a 10% increase in retired pay based on award of the Soldier's Medal, the member must have been credited with extraordinary heroism equivalent to that required for award of the DSC.
2.  In this case, the evidence of record confirms that a request for a 10% increase in the applicant's retired pay based on award of the Soldier's Medal was appropriately processed and acted upon by the ADB in accordance with the applicable regulation.  The ADB, after reviewing the applicant's case, determined that the circumstances surrounding the applicant's award of the Soldier's Medal did not fulfill the requirements for entitlement to a 10% increase in retired pay.  

3.  The evidence provided by the applicant and a review of the circumstances surrounding his award of the Soldier's Medal is not sufficiently compelling for this Board to conclude the level of heroism was equivalent to that required for award of the DSC. 
 
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

____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)                                         AR20090008203



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ABCMR Record of Proceedings (cont)                                         AR20090008203


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