BOARD DATE:	  17 February 2011

		DOCKET NUMBER:  AR20100019241 


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 a 10 percent increase in his retired pay based on award of the Soldier's Medal.  He also requests payment of all monies due effective 1 October 2002, as a result of these corrections.  

2.  He states he was not aware of his entitlement to an increase in his retired pay as a result of being awarded the Soldier's Medal.  He believes an administrative oversight may have occurred during his final out-processing at Fort Riley, KS.  He contends that upon his arrival for his final appointment, no one was there to process him.  During his second appointment, it seemed as if he was simply pushed through the system and no regard was given to the additional 10 percent increase in his retired pay.

3.  He provides copies of:

* A letter from the Military Awards Branch, U.S. Total Army Personnel Command (now Army Human Resources Command (AHRC)), Alexandria, VA
* A permanent order for award of the Soldier's Medal
* A DA Form 4980-6 (The Soldier's Medal Award Certificate)
* A citation for award of the Soldier's Medal
* Retirement orders
* A DD Form 214 (Certificate of Release or Discharge from Active Duty)



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.  His record shows he entered the Active Guard Reserve (AGR) program of the Army National Guard (ARNG) on 15 September 1986.   

3.  A memorandum prepared by the Chief, Military Awards Branch shows the Commanding General, AHRC, approved the award of the Soldier's Medal by issuing permanent orders 056-11, dated 25 February 2002.  This order shows he was awarded the Soldier's Medal for heroism not involving actual conflict with an enemy on 19 September 1982. 

4.  The citation for this award states, in pertinent part, he distinguished himself on 19 September 1982 by responding to an explosion at a house next door to his own residence.  Without regard for his own safety, he entered the burning house several times and saved the lives of four family members.  

5.  He also provided a copy Orders 158-052, Department of Military and Veterans Affairs, Office of the Adjutant General, South Dakota, dated 7 June 2002.  These orders show he was released from active duty and placed on the retired list         1 October 2002, in the rank of Sergeant First Class (SFC)/E-7.  He was retired under the provisions of Title 10, U.S. Code, section 3914, with 20 years,               8 months, and  1 day of active Federal service (AFS).  There were no significant awards listed on these orders.  

6.  His DD Form 214 confirms he retired on 30 September 2002 and transferred the U.S. Army Reserve (USAR) Control Group (Retired) after completing 
20 years, 8 months, and 1 day of AFS, in the grade of SFC/E-7. 


7.  On 27 December 2010, the Awards and Decorations Branch, AHRC database confirmed he was awarded the Soldier's Medal with a 10 percent increase in retired pay in the year 2002.  

8.  On 30 December 2010, the Defense Finance and Accounting Service (DFAS) office confirmed he was not receiving any additional retired pay for receipt of the Soldier's Medal due to the fact the Soldier's Medal was not annotated on his retirement orders.

9.  Army Regulation 600-8-22 (Military Awards), paragraph 1-40(a), states that   U. S. Code Title 10, section 3991 provides that any enlisted member who is credited with extraordinary heroism in line of duty who retires after 20 years or more years active Federal service, is entitled to 10 percent increase in retired pay, subject to the 75 percent limit on total retired pay.  Any recipient of the Distinguished Service Cross satisfies the requirement for extraordinary heroism.  An enlisted recipient of the Soldier’s Medal may be credited by the Secretary of the Army with extraordinary heroism only if it is determined that the heroism display was equivalent to that required for award of the Distinguished Service Cross.  

10.  Paragraph 1-40 also states that enlisted recipients of the Soldier's Medal will complete item 14 of the DA Form 2339 (Application for Voluntary Retirement), when applying for retirement.  The written request for determination and confirmation of entitlement to increased retired pay will be forwarded to the Awards and Decorations Branch, AHRC along with a copy of the order and citation for the Soldier's Medal. 

DISCUSSION AND CONCLUSIONS:

1.  Based on the information provided, it is clear that his actions on 
19 September 1982, were truly heroic, as he voluntarily risked his own life in order to assist others.  Awarding him the Soldier's Medal was proper considering all of the facts in his case.

2.  As a result of the Military Awards Branch approving his award of the Soldier's Medal with a 10 percent increase in retired pay it is reasonable to presume that he must have submitted all the required documentation to that office at the time he received the award.  

3.  It is apparent that an administrative oversight occurred in which the Soldier's Medal was inadvertently omitted from his retirement orders.  Therefore, as a matter of equity, it would be appropriate to amend these orders to show he received the Soldier's Medal with a 10 percent increase in retired pay.  It would also be appropriate to correct his military retired pay account to show entitlement to this pay as of 1 October 2002 and to pay him all back pay as a result of this correction.   

BOARD VOTE:

___x_____  ___x___  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  amending Orders 158-052, dated 7 June 2002:

* Significant Awards – delete the entry "No" and add "Soldier's Medal"
* Additional Instructions – add the entry "You are entitled to a 10 percent increase of your retired pay based on award of the Soldier's Medal, under Title 10, U.S. Code, Section 3991."

	b.  Notifying DFAS to increase the individual's retired pay by 10 percent based on award of the Soldier's Medal, and to remit all back pay, effective            1 October 2002, under the provisions of Title 10, U.S. Code, Section 3991.   




      _______ _  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)                                         AR20100019241



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ABCMR Record of Proceedings (cont)                                         AR20100019241



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