IN THE CASE OF:
BOARD DATE: 28 June 2011
DOCKET NUMBER: AR20100030316
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 retirement pay based on award of the Soldier's Medal.
2. The applicant states, in effect, that he is not receiving the additional 10% due to an oversight by the out processing section at Fort Lewis, WA.
3. The applicant provides:
* his DD Form 214 (Report of Separation from Active Duty) for the period ending 31 October 1977
* General Orders Number 1258, issued by Headquarters, 25th Infantry Division, dated 18 March 1968, awarding him the Soldier's Medal for heroism on 5 September 1967 in the Republic of Vietnam
* his Soldier's Medal Certificate
* an extract from Wikipedia describing 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 retired as a captain (CPT)/O-3 after completing 20 years and
29 days of total active service.
3. General Orders 1258 announced his award of the Soldier's Medal for heroism not involving actual conflict with an armed enemy on 5 September 1967. He was serving in the Republic of Vietnam and was a second lieutenant platoon leader.
4. Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards. Paragraph 1-40a (Increased Retired Pay Based on Decorations - Enlisted Awardees) states, Title 10, U.S. Code, section 3991, provides that any enlisted member who is credited with extraordinary heroism in 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 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 Soldiers 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 enlisted status.
DISCUSSION AND CONCLUSIONS:
1. The evidence shows that enlisted personnel awarded the Soldier's Medal may be entitled to a 10% increase in retirement pay. There is no provision for a similar increase for retired officer personnel. The applicant was a second lieutenant when he was awarded the Soldier's Medal.
2. In view of the foregoing, there is no basis for granting the applicant's 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) AR20100000695
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20100030316
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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