IN THE CASE OF:	

		BOARD DATE:	12 May 2011

		DOCKET NUMBER:  AR20100026108 


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 his record be corrected to show he was promoted to sergeant major (SGM)/pay grade E-9 and his retirement pay be increased 10 percent based upon his award of the Soldier's Medal.

2.  The applicant states he received the Soldier's Medal in 2010 for heroic actions in 1978.  If he had been awarded the Soldier's Medal shortly after the incident he is certain he would have been promoted to SGM/E-9 before his retirement.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a letter from his Congressional representative; five witness accounts; and Soldier's Medal Certificate, Citation, and orders.

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 is a retired Regular Army sergeant first class (SFC)/pay grade E-7.

3.  His DD Form 214 shows he retired effective 31 July 1994.  He completed 20 years and 15 days of creditable active service.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) shows the Army Commendation Medal, Army Achievement Medal, Army Good Conduct Medal (5th Award), National Defense Service Medal (2d Award), Noncommissioned Officer Professional Development Ribbon with Numeral 3, Army Service Ribbon, Oversea Service Ribbon with Numeral 4, Expert Marksmanship Qualification Badge with Automatic Rifle Bar, and U.S. Army Gold Recruiter Badge with three sapphire achievement stars.

4.  Permanent Orders 259-12, U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 16 September 2010, announced award of the Soldier's Medal for the applicant's heroism on 21 July 1978.  Information obtained from HRC indicates this award recommendation was initiated around September 2002.

5.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  Chapter 4 provides the rules and steps for managing the Centralized Promotion System to SFC, master sergeant (MSG), and SGM.  The Commander, HRC, promotes Soldiers to the grades of SFC, MSG, and SGM.  HRC will determine and announce the total number of promotions to SFC, MSG, and SGM on a monthly basis.

6.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  In pertinent part, it defines extraordinary heroism as an act or acts of heroism or gallantry involving the risk of life.  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.  

7.  Paragraph 1-40 (Increased Retired Pay Based on Decorations – Enlisted Awardees) of Army Regulation 600-8-22 states:

	a.  Title 10, U.S. Code, section 3991, provides that any enlisted member who is credited with extraordinary heroism in the line of duty who retires after 20 or more years of active Federal service, is entitled to a 10-percent increase in retired pay, subject to the 75-percent limit on total retired pay.  Any awardee of the Medal of Honor, Distinguished Service Cross, Navy Cross, or Air Force Cross satisfies the requirement for extraordinary heroism.  An enlisted awardee of the Distinguished Flying Cross awarded for non-combat-related 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.  These provisions affect enlisted personnel who retire and who have been credited with extraordinary heroism whether or not such heroism was displayed while the individual was serving in an enlisted status.

	b.  Enlisted recipients of any of the six decorations referred to above will complete item 14 of the DA Form 2339 (Application for Voluntary Retirement) when applying for retirement.  If the recipient has not previously done so, a written request for determination and confirmation of entitlement to increased retired pay will be forwarded to Commander, HRC, ATTN:  AHRC-PDO-PA, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  The request will be accompanied by a copy of the order which awards the decoration and the citation if not included in the order.

8.  In support of his request, he provides statements from five witnesses.  Each attests to the heroic actions he took that resulted in award of the Soldier's Medal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record should be corrected to show he was promoted to SGM/E-9 and his retirement pay increased 10 percent based upon his award of the Soldier's Medal.

2.  The applicant has not provided any evidence or analysis to support his contention that if the Soldier's Medal had been in his military records he would have been promoted to SGM/E-9 prior to his retirement.  Further, there is no evidence to show he was recommended for award of the Soldier's Medal while he was on active duty.

3.  With respect to the additional 10 percent of retirement pay he may be entitled to as a result of award of the Soldier's Medal, the applicant should be justifiably proud of having earned the Soldier's Medal; however, he must apply to Commander, HRC, ATTN:  AHRC-PDO-PA, 1600 Spearhead Division Avenue, Fort Knox, KY  40122 for determination and confirmation of entitlement to increased retired pay.

4.  In view of the above, he is not entitled to the requested relief.


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 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)                                         AR20100025190



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ABCMR Record of Proceedings (cont)                                         AR20100026108



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