IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100011869 

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 retirement orders be amended to show that he is authorized an additional 10 percent of his retired pay based on his Soldier’s Medal.

2.  The applicant states, in effect, that the 10 percent increase in retired pay should have been authorized by his original retirement orders since the actions he took to be awarded the Soldiers Medal were life threatening.

3.  The applicant does not provide any additional documents in support of his request.

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 records show that he enlisted in the Regular Army on 4 August 1972 and was awarded the military occupational specialty of administration specialist.

3.  On 28 February 1975, the applicant was awarded the Soldiers Medal.  In the letter approving the award it was stated that the Army Decorations Board determined that the circumstance surrounding the award of the Soldiers Medal did not fulfill the requirements for an additional 10 percent retired pay.  His award citation read:

[The applicant] distinguished himself by heroism at Fort Shafter, Hawaii, risking great personal injury or death.  At 0925 hours, 19 April 1974, after several hours of heavy rains, the water level in the area adjacent to the Military Police Station reached flood proportions.  Vast quantities of flash flood waters began flowing down the hillside adjacent to the Military Police Station, engulfing the Interstate Highway below, and trapping motorists inside their stranded vehicles.  [The applicant] removed motorists to safety of higher ground and assisted in directing oncoming traffic out of the danger area.  Despite the risk of being swept away by the rushing water and the threat of being struck by vehicles and other floating debris carried by the swift current, [the applicant] repeated entered the water to remove stranded motorists.  He then, along with three other individuals, went to the Fort Shafter Elementary School and assisted personnel there in directing the evacuation of school children onto school buses.  By his courageous action and humanitarian regard for his fellow man, [the applicant] reflected great credit upon himself and the United States Army

4.  The applicant continued to serve on active duty and was promoted to pay grade E-8.  He was retired for years of service on 31 August 1994.

5.  Army Regulation 600-8-22 (Military Awards) provides 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.  

6.  Title 10 United States Code section 3991 provides for computation of retired pay.  Specifically, Title 10 United States Code section 3991(a)(2) provides for an additional 10 percent 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 percent of the amount determined under paragraph (1) (but 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.”  

7.  Army Regulation 600-8-22 provides that any award of the Medal of Honor, the Distinguished Service Cross, Navy Cross, or Air Force Cross satisfies the requirement for extraordinary heroism.  The regulation further provides that an enlisted awardee of the Distinguished Flying Cross awarded for non-combat heroism, or the Soldier’s Medal may be credited by the Secretary of the Army with extraordinary heroism only if it is determined that the heroism displayed was equivalent to that required for award of the Distinguished Service Cross.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his retirement orders be amended to show that he is authorized an additional 10 percent of his retired pay based on his Soldier’s Medal.

2.  In order to grant the applicant’s request, he would have to show he had been credited by with extraordinary heroism equivalent to that required for award of the Distinguished Service Cross.  

3.  The orders awarding the applicant the Soldier’s Medal stated that the Army Decorations Board determined that the circumstance surrounding the award of the Soldiers Medal did not fulfill the requirements for an additional 10 percent retired pay.  By law, that determination as to extraordinary heroism was conclusive for all purposes.

4.  There are many awards for valor in combat (Army Commendation for Valor up to the Medal of Honor).  They are for different levels of heroism.  Normally, all involve life threatening situations and circumstances.

5.  The applicant's heroism is beyond question and it is evident that he is justifiably proud of his lifesaving actions.  However, the additional 10 percent retired pay is reserved for only those enlisted soldiers credited with extraordinary heroism.  As with combat awards, the level of heroism must be determined.  In the applicant's case it was determined that the heroism he displayed was not of the level to warrant award of the Distinguished Service Cross.  The applicant has not submitted any evidence or argument which would show that this determination was in error.

6.  In view of the foregoing, there is no basis for granting the applicant’s request.

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)                                         AR20100011712





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ABCMR Record of Proceedings (cont)                                         AR20100011869



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