BOARD DATE:	  4 November 2010

		DOCKET NUMBER:  AR20100024862 


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 he be given an additional 10 percent in retired pay for his Soldier's Medal.

2.  The applicant states he is crippled for life due to his legs being broken and permanently scarred from the incident on 12 January 1964.

3.  The applicant provides General Orders Number 127 dated 23 July 1964 which awarded him the Army Commendation Medal (ARCOM), which the applicant identifies as an interim award before receiving 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.  On 23 July 1964, orders were issued awarding the applicant, then in pay grade E-5, the ARCOM.  In the order it was stated the applicant "noticed a M113 personnel carrier crash through Gate #2 of Coleman Kaserne and head east.  Immediately, and without regard for his own safety [the applicant] mounted a quarter ton, and with his driver gave chase.  As the personnel carrier reached downtown Gelnhausen, [the applicant] overtook it, drew his pistol and ordered the driver to halt.  Instead he swerved sharply to the left and rammed the jeep.  He then backed up and struck the jeep again, inflicting severe lacerations to [the applicant's] right leg and fracturing his left leg.  [The applicant], realizing the danger to civilians which the rampant personnel carrier represented, acted unhesitatingly and displayed great courage.  The delay caused by [the applicant's] effort resulted in the drivers [sic] capture a few kilometers beyond Gelnhausen with no further injury to personnel or destruction to property.  [The applicant] acted automatically to protect the life and property of others, completely disregarding the hazard to himself.  Action such as this serves as an indication of [the applicant's] professionalism, decisiveness and high degree of devotion to duty.  [The applicant's] heroic action in the face of extreme danger is worthy of emulation and reflects great credit upon himself and the United States Army."

3.  On 20 April 1965, a letter was sent from the Adjutant General, Department of the Army, to the applicant's commanding general.  In that letter it was stated that the Soldier's Medal had been approved for the applicant.  As a result, the ARCOM announced in orders dated 23 July 1964 would be superseded when award of the Soldier's Medal was announced.

4.  On 2 April 1980, the applicant was placed on the Retired List for physical unfitness in pay grade E-7.  He had 20 years, 7 months, and 22 days of active service.  The applicant's significant awards and badges include the Soldier's Medal, Bronze Star Medal with Oak Leaf Cluster, Bronze Star Medal for valor, Purple Heart, ARCOM with Oak Leaf Cluster, Meritorious Service Medal, and Combat Infantryman Badge.

5.  On 13 December 1983, the Chief, Military Awards Branch, U.S. Army Military Personnel Center, responded to the applicant's request for an additional 
10 percent retired pay based on his Soldier's Medal.  In that letter it was stated that the Army Decorations Board had determined that his actions on 12 January 1964 did not constitute extraordinary heroism.  Therefore, he was not entitled to an additional 10 percent in retired pay.  This letter also informed the applicant that the records showed that he had been informed of that decision on at least three previous occasions.

6.  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.  

7.  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 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 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.”  

8.  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's actions on 12 January 1964 were indisputably heroic.  Therefore, he was properly awarded the Soldier's Medal, which is the equivalent of the Distinguished Flying Cross.

2.  The Army Decorations Board determined that the applicant's heroism was not equivalent to that required for award of the Distinguished Service Cross.

3.  Congress determined that an additional 10 percent in retired pay would only be given to Soldiers who are credited with extraordinary heroism when they retire. 

4.  The Army has many awards for heroism.  The ARCOM for valor; the Bronze Star Medal for valor; the Air Medal for valor; the Distinguished Flying Cross; the Soldier's Medal; the Distinguished Service Cross; and the Medal of Honor.  The Army has determined that only the Distinguished Service Cross and the Medal of Honor meet the criteria of extraordinary heroism for an additional 10 percent retired pay.  The Army expanded its criteria for the extra 10 percent retired pay to the Soldier's Medal and the Distinguished Flying Cross (peacetime) since there are no higher awards for peacetime heroism.  However, a determination is required that these awards were made for heroism equivalent to that required for award of the Distinguished Service Cross.

5.  The heroism of all Soldiers is recognized and appreciated.  However, only heroism warranting award of the Distinguished Service Cross or Medal of Honor warrant the additional 10 percent retired pay.  The applicant has not submitted any evidence or argument which would show that the decision made by the Army Decoration Board, that his heroism did not constitute extraordinary heroism, was inappropriate.

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)                                         AR20100024862



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ABCMR Record of Proceedings (cont)                                         AR20100024862


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