IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100001046 


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 amendment of his retirement orders to authorize a 10% increase in his retired pay based upon his award of the Soldier's Medal for heroism [commonly known as Heroism Pay].

2.  He states, in effect, he was awarded the Soldier's Medal for extraordinary heroism on 21 September 1952 while serving in Korea.  He believes an honest mistake occurred at the time of his retirement due to the fact that regulatory guidance and information were not distributed to the extent it is today.  He speculates his Soldier's Medal was not considered by the retirement section because the conflict in the Republic of Vietnam was the focus at the time of his retirement.  

3.  He states that when General W___e presented him the award, he informed him it would authorize him a 10% increase in retirement pay if he decided to remain in the service.  In effect, he discovered he was authorized Heroism Pay over 20 years ago.  At that time, he contacted his Representative in Congress in order to get assistance in obtaining copies of his award orders and was informed his records were lost in the fire at the National Personnel Records Center (NPRC), St. Louis, MO.  He also sought assistance from the Department of Veterans Affairs, but did not receive relief.





4.  He provides copies of:

* a memorandum depicting the timeline of events pertaining to his request
* his retirement orders
* a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* General Orders awarding him the Soldier's Medal
* a reconstructed certificate commemorating his award of the Soldier's Medal
* a record of 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 record is not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the NPRC St. Louis, in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there are sufficient documents on file for the Board to conduct a fair and impartial review of this case.  This case is being considered using reconstructed records, which primarily consist of General Orders obtained from the NPRC, and a DD Form 214, the Soldiers Medal Certificate, and Letter Orders provided by the applicant.

3.  Headquarters, 40th Infantry Division, General Orders Number 223, dated 11 June 1953 awarded him and a senior noncommissioned officer the Soldier's Medal for heroism not involving actual conflict with an enemy while serving in Korea on 21 September 1952.  The narrative citation for each of their awards was as follows:

	[Rank, name, service number], Infantry, United States Army, 224th Infantry Regiment, distinguished himself by heroic action at Inchon, Korea, on 21 September 1952.  While troops were unloading from the top deck of a Landing Craft, [he] discovered that the crew members of ten tanks in the lower hold had been overcome by the exhaust fumes of the engines which had been warming for several minutes.  Realizing that immediate action was needed, [he] entered the contaminated compartment, completely disregarding his personal safety, and began to remove the unconscious men from their tanks.  Repeatedly, [he] entered the poisonous atmosphere of the hold and each time removed an unconscious crew member, carrying the man over three-hundred feet to the dock where artificial respiration was administered.  [His] quick thinking and unselfish action saved the lives of several men who would have succumbed to the fumes had they not been removed to fresh air immediately.  The unselfish and heroic manner in which [he] disregarded his own safety to save the lives of his comrades earned him the respect and admiration of all with whom he came in contact.  The heroism and selfless devotion to duty displayed by [him] reflect great credit upon himself and the United States Army.

4.  On 6 December 1971, the applicant retired from the Regular Army with a permanent disability rating of 70% and 20 years, 3 months, and 21 days of active service.

5.  He provides a memorandum depicting a timeline of the actions he's taken in an effort to gain relief:

* 16 November 2007, he requested copies of his military record and the reissuance of the Soldier's Medal
* 7 December 2007, he received certified copies of documents including the Soldier's Medal orders and reconstructed certificate
* 13 December 2007, he faxed copies to the Defense Finance and Accounting Service (DFAS) and requested a 10% increase with retroactive pay
* 2 February 2008, DFAS advised him to request relief from the ABCMR
* 10 March 2008, he submitted a request to ABCMR
* 11 June 2008, ABCMR referred his request to the Awards Branch of the Human Resources Command (HRC)
* 23 June through 24 November 2008, he corresponded with Awards Branch, HRC
* August 2009, he received a letter from Awards Branch, HRC, denying his request

6.  On 16 July 2009, the Army Decorations Board considered his request for a 10% increase in his retirement pay, based upon his award of the Soldier's Medal for heroism.  The Army Decorations Board determined that although his actions were heroic, the degree of heroism rendered was not equivalent to that required for award of the Distinguished Service Cross.  As a result, it was ruled he was not entitled to a 10% increase in retirement pay and his request was denied.  

7.  Army Regulation 672-5-1 (Military Awards), in effect at the time of his retirement, provided, 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. 

8.  Army Regulation 672-5-1, in effect at the time of his retirement, provided, in pertinent part, that any enlisted man who is credited with extraordinary heroism in the line of duty who retires after 20 or more years active Federal service, is entitled to 10% increase in retired pay, subject to the 75% limit on total retired pay.  Any enlisted awardee of the Medal of Honor, the Distinguished Service Cross, or the Navy Cross satisfies the requirement for extraordinary heroism.  An enlisted awardee of the Distinguished Flying Cross or the Soldier’s Medal may be credited by the Secretary of the Army with extraordinary heroism only if it determined that the heroism displayed was equivalent to that required for award of the Distinguished Service Cross. 

9.  Army Regulation 672-5-1, in effect at the time of his retirement, provided, 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.

10.  Chapter 12 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant’s retirement, in pertinent part, provided for increased retired pay based on extraordinary heroism.  Specifically the regulation stated:  "An individual who has been awarded the Medal of Honor, Distinguished Service Cross, or Navy Cross for extraordinary heroism will, upon retirement under Title 10, U.S. Code 3914, have his retired pay increased 10%, provided his total retired pay (including the increase) does not exceed 75% of the basic pay upon which computed.  In addition, an enlisted member who has been awarded the Distinguished Flying Cross, the Soldier’s Medal or equivalent Navy decoration may be credited by the Secretary of the Army with extraordinary heroism if it is determined that the heroism was equivalent to that required for award of the Distinguished Service Cross.  Each case appearing to warrant Secretarial determination of extraordinary heroism will be submitted to Headquarters, Department of the Army [office symbols for U.S Army Total Personnel Command] for determination of such entitlement."

11.  Title 10, U.S. Code section 3991 provides for computation of retired pay.  Specifically, Title 10, U.S. Code section 3991(a)(2) provides for an additional 10% for certain enlisted members credited with extraordinary heroism.  The law states:  "If a member who is retired under section 3914 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% of the amount determined under paragraph (1) (but not more than 75% of the retired pay upon which the computation of such retired pay is based.)  The Secretary’s determination as to extraordinary heroism is conclusive for all purposes."  Section 3914 refers to the voluntary retirement of Army enlisted members with 20 to 30 years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record should be corrected by amending his retirement orders to show he is authorized a 10% increase in his retired pay based on his award of the Soldier's Medal for heroism.

2.  On 16 July 2009, the Army Decorations Board, acting on behalf of the Secretary of the Army, determined that the degree of heroism did not meet the criteria for increased retired pay and denied his request for a 10% increase in his retired pay.

3.  By law, the Secretary’s determination as to extraordinary heroism is conclusive for all purposes.  The applicant provides no evidence to show the Army Decorations Board failed to review all the relevant evidence or that its decision was otherwise flawed or improper.  Therefore, there is no basis for granting his request.

4.  This action in no way diminishes the heroism and sacrifices the applicant made in service to this Nation.  His actions on 21 September 1952 were recognized with an award of the Soldier's Medal for heroism and he and all Americans should be justifiably proud of his service in arms and the recognition of his heroism.






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)                                         AR20100001046



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)