IN THE CASE OF:	  

		BOARD DATE:	  19 July 2011

		DOCKET NUMBER:  AR20110000740 


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:

* award of a 10-percent increase in his retired pay based on award of the Soldier's Medal with retroactive back payment if his request is approved
* correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show award of the Korea Defense Service Medal
* a signed copy of his DD Form 214

2.  The applicant states:

	a.  He did not receive a 10 percent increase in his retired pay when he retired in 1984.  He received the Soldier's Medal and was told numerous times his retired pay would be increased by 10 percent by applying (for the increase) to the Secretary of the Army.

	b.  When he decided to retire he applied for the increase.  He believes his request was denied, although he does not have the paperwork to show it and he does not remember for sure.  He was told by others who worked at the Pentagon in those days that retiring members who had the Soldier's Medal were approved for the 10-percent increase in retired pay for a lot less than what his award was for.

	c.  There was no doubt when the award was submitted that if the rifle had not misfired he would have been shot and perhaps dead.  He had faith in the chain of command and he did not appeal the case in 1984 as he was a patient at Walter Reed Army Hospital and was being treated for post-traumatic stress disorder (PTSD).  The mental health staff said his PTSD had been suppressed since Vietnam and his return from Korea may have triggered it.

3.  The applicant provides:

* his DD Form 214
* two letters from the U.S. Army Human Resources Command (HRC) to his Congressman, dated 31 August and 7 December 2010
* a DA Form 19-24 (Statement), dated 27 May 1967
* a memorandum from Headquarters, 79th Engineer Group, dated 4 June 1967
* Soldier's Medal orders, dated 9 June 1967
* retirement orders, dated 9 May 1984

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 11 July 1961 and he held military occupational specialties 71L (Administrative Specialist) and 00E (Career Counselor).

2.  He served in Germany from on or about 11 April 1962 to on or about 1 May 1964, in Vietnam from on or about 3 October 1966 to on or about 20 September 1967, and in Korea from on or about 16 July 1982 to on or about 13 July 1983.

3.  He served through multiple enlistments and/or extensions and he was honorably retired from active duty as a command sergeant major on 31 August 1984.  His DD Form 214 shows he completed a total of 23 years, 1 month, and 20 days of creditable active service.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:

* Army Good Conduct Medal (7th Award)
* Army Service Ribbon
* Republic of Vietnam Campaign Medal
* National Defense Service Medal
* Meritorious Service Medal with 1st Oak Leaf Cluster
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Humanitarian Service Medal
* Vietnam Service Medal
* Gold Recruiter Badge
* Soldier's Medal
* Bronze Star Medal
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation
* Army Achievement Medal with 1st Oak Leaf Cluster
* Army Commendation Medal with 5th Oak Leaf Cluster
* Noncommissioned Officer Professional Development Ribbon (5th Award)
* two overseas service bars
* Overseas Service Ribbon
* Meritorious Unit Commendation with 1st Oak Leaf Cluster
* Legion of Merit

4.  He provides a letter from an HRC official to his Congressman, dated 7 December 2010, in response to the Congressman's letter on behalf of the applicant concerning the applicant's desire to be awarded a 10-percent increase in his retired pay for his award of the Soldier's Medal.  The letter stated the applicant was previously denied the 10-percent increase in his retired pay and the applicant could appeal the decision to Army Board for Correction of Military Records (ABCMR).

5.  He provides General Orders Number 226, dated 9 June 1967, issued by Headquarters, U.S. Army Engineer Command Vietnam (Provisional), wherein he was awarded the Soldier's Medal for heroism not involving actual conflict with an armed enemy in the Republic of Vietnam on 27 May 1967.  The orders stated:

Sergeant [Applicant] distinguished himself by valorous actions when confronted with an American Soldier who went berserk.  After being informed that a Soldier was drunk and disorderly in the orderly room of the Headquarters Company, 79th Engineer Group, Sergeant [Applicant] proceeded to the scene and attempted to talk with the enlisted man.  The man was armed with an M-14 rifle and kept saying he was going to kill someone.  When the enlisted man forced Sergeant [Applicant] from the orderly room, Sergeant [Applicant] notified the Military Police and returned to the scene, and despite the threat [to] his own life, he exposed himself to the point blank range of the weapon in an effort to get the man to put the weapon down.  After it became apparent that the man was increasing his belligerence and threats, Sergeant [Applicant], with complete disregard for his own safety and thinking only of the lives of the men billeted in the area, charged the man and wrestled the weapon from him.  Sergeant [Applicant] was well aware that the rifle the man was armed with was loaded; however, he disregarded his own safety and chose to risk his life; by doing so, he not only prevented innocent persons from being injured, but prevented serious injury to the stricken individual who would have had to be subdued.

6.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.

	a.  The Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who served on active duty in support of the defense of the Republic of Korea.  The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense.

	b.  The Overseas Service Ribbon was established by the Secretary of the Army on 10 April 1981.  Effective 1 August 1981, all members of the Active Army, Army National Guard, and U.S. Army Reserve in an active Reserve status are eligible for the award for successful completion of overseas tours.  The award may be awarded retroactively to those personnel who were credited with a normal overseas tour completion before 1 August 1981 provided they had an active Army status on or after 1 August 1981.  Numerals are used to denote the second and subsequent awards of the Overseas Service Ribbon.

7.  Army Regulation 672-5-1 (Military Awards), in effect at the time of his retirement, provided that the Soldier's Medal was 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.

8.  Army Regulation 672-5-1 further provided that any enlisted man 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 enlisted awardee of the Medal of Honor, the Distinguished Service Cross, or the Navy Cross satisfies the requirement for extraordinary heroism.  An enlisted awardee of the Distinguished Flying Cross or the Soldier's Medal may be credited by the Secretary of the Army with extraordinary heroism only if it determined that the heroism displayed was equivalent to that required for award of the Distinguished Service Cross.

9.  Army Regulation 672-5-1 provided that the Distinguished Service Cross was awarded to a person who, while serving in any capacity with the Army, distinguished himself or herself by extraordinary heroism while engaged in action against an enemy of the United States not justifying award of the Medal of Honor.  The act or acts of heroism must have been so notable and have involved risk of life so extraordinary as to set the individual apart from his or her comrades.

10.  Chapter 12 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time of the applicant's retirement, provided for increased retired pay based on extraordinary heroism.  Specifically, the regulation stated, "An individual who has been awarded the Medal of Honor, Distinguished Service Cross, or Navy Cross for extraordinary heroism will, upon retirement under Title 10, U.S. Code, section 3914, have his retired pay increased 10 percent, provided his total retired pay (including the increase) does not exceed 75 percent of the basic pay upon which computed.  In addition, an enlisted member who has been awarded the Distinguished Flying Cross, the Soldier's Medal, or equivalent Navy decoration may be credited by the Secretary of the Army with extraordinary heroism if it is determined that the heroism was equivalent to that required for award of the Distinguished Service Cross.  Each case appearing to warrant Secretarial determination of extraordinary heroism will be submitted to Headquarters, Department of the Army, for determination of such entitlement."

11.  Title 10, U.S. Code, section 3991, provides for computation of retired pay.  Specifically, 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 upon which the computation of such retired pay is based).  The Secretary's determination as to extraordinary heroism is conclusive for all purposes."  Section 3914 refers to the voluntary retirement of Army enlisted members with 20 to 30 years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in Korea during a qualifying period for award of the Korea Defense Service Medal which is not shown on his DD Form 214.  Therefore, he is entitled to correction of his DD Form 214 to show this award.

2.  He was credited with normal overseas tour completion in Germany, Vietnam, and Korea and he was on active duty after 1 August 1981.  Therefore, he is entitled to two additional awards of the Overseas Service Ribbon and correction of his DD Form 214 to show these awards.

3.  With respect to his request to have his retired pay increased by 10 percent based on his award of the Soldier's Medal, the award of the Soldier's Medal does not automatically entitle a Soldier to a 10-percent increase in his retired pay.  Rather, a Soldier may be entitled to a 10-percent increase when credited by the Secretary of the Army with extraordinary heroism in the line of duty.

4.  Although the complete facts and circumstances regarding the Army Decorations Board's consideration and denial of the 10-percent increase in his retired based upon his award of the Soldier's Medal for heroism are not available for review, it appears the Army Decorations Board determined that although his actions were heroic, the degree of heroism rendered was not equivalent to that required for award of the Distinguished Service Cross.  As a result, it was ruled he was not entitled to a 10-percent increase in his retired pay and his request was denied.

5.  By law, the Secretary's determination as to extraordinary heroism is conclusive for all purposes.  The applicant provides no evidence to show the Army Decorations Board failed to review all the relevant evidence or that its decision was otherwise flawed or improper.  

6.  Furthermore, after a thorough review of his heroism that led to the award of the Soldier's Medal, it is the opinion of this Board that his actions did not rise to the level of that required for award of the Distinguished Service Cross.  Therefore, there is no basis for granting his request.

7.  This action in no way diminishes the heroism and sacrifices the applicant made in service to this Nation.  His actions on 27 May 1967 were recognized with an award of the Soldier's Medal for heroism and he and all Americans should be justifiably proud of his service in arms and the recognition of his heroism.

8.  With respect to his unsigned DD Form 214, the DD Form 214 with this Record of Proceedings is signed by the personnel officer and will be provided to the applicant.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

* deleting the Overseas Service Ribbon from item 13 of his retirement DD Form 214
* adding the Korea Defense Service Medal and the Overseas Service Ribbon (3rd Award) to item 13 of his retirement DD Form 214
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the award of a 10-percent increase in his retired pay based on his award of the Soldier's Medal.



      __________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)                                         AR20110000740



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ABCMR Record of Proceedings (cont)                                         AR20110000740



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