IN THE CASE OF:	  

		BOARD DATE:	  6 September 2011

		DOCKET NUMBER:  AR20110001654 


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 amendment of his retirement orders to authorize a
10 percent (%) increase in his retired pay based upon his award of the Soldier's Medal for heroism (commonly known as heroism pay).

2.  He states, in effect, he was awarded the Soldier's Medal for placing his life in physical danger while trying to save the life of another.  In May 2007, he submitted a Congressional inquiry to the U.S. Army Human Resources Command (HRC) regarding a 10% increase in his retired pay based upon his award of the Soldier's Medal.  In one response to his inquiry HRC informed him that his eligibility for the increased retirement pay had been previously considered and denied.  The applicant contends he never submitted a request for the pay increase prior to his inquiry and ponders how it could have been previously denied.  HRC also referred the applicant to the Department of Veterans Affairs (DVA) because the Department of the Army does not make determinations of veteran's benefits.  He concludes the responses from HRC are in contradiction to Army procedures.

3.  He provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Permanent Order 166-17, dated 20 October 1994, awarding him the Soldier's Medal
* the citation for award of the Soldier's Medal
* the certificate for award of the Soldier's Medal
* two letters from HRC
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 enlisted in the Regular Army on 20 February 1986 and he served continuously in a variety of assignments and duty stations.  During his career he was advanced/promoted through the enlisted ranks to his final rank/grade of sergeant first class (SFC)/E-7.

3.  Permanent Order 166-17, issued by the U.S. Total Army Personnel Command, Alexandria, VA, dated 20 October 1994, awarded him the Soldier's Medal for heroism on 31 March 1993.  The narrative citation for this award states:

[Applicant's rank and name] distinguished himself in a heroic manner on 31 March 1993, during an automobile accident in Fayetteville, NC.  Without regard to personal safety he subjected himself to endangerment of an automobile that was continually spinning out of control by diving through the broken window and turning off the ignition.  [Applicant's rank and name] heroic action, selflessness, and dedication reflects great credit on him and the U.S. Army.

4.  Orders 088-0028, issued by Headquarters, 24th Infantry Division, Fort Riley, KS, dated 29 March 2006, released the applicant from active duty effective
31 October 2006 and, on the date following, placed him on the retired list.  These orders contain the entry "Significant awards:  SOLDIER'S MEDAL."

5.  On 31 October 2006, he was retired by reason of sufficient service for retirement following 20 years, 8 months, and 11 days of creditable active service. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the Soldier's Medal.

6.  He provides an undated letter wherein the Chief of the Soldier Programs and Services Division of HRC informed the applicant's Representative in Congress that the 10% retirement pay increase for receipt of the Soldier's Medal is not automatic.  An enlisted awardee 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 was equivalent to that required for award of the Distinguished Service Cross.  Unfortunately, [the applicant] was previously denied the 10% increase in his retirement pay on 12 July 2007 by the Army Decorations Board.

7.  He provides a letter rendered by the Chief of the Military Awards Branch of HRC on 1 August 2007 in response to the applicant's letter, dated 3 May 2007, concerning his desire to obtain information regarding benefits available to him for his military service.  The Chief of the Military Awards Branch Army informed him that the Department of the Army does not make determinations of eligibility for veteran's benefits.  This function is vested in the DVA.  He recommended that the applicant contact the Regional Office of the DVA in his state of residence concerning his eligibility for veteran's benefits such as additional benefits for receipt of the Soldier's Medal.

8.  Army Regulation 600-8-22 (Military Awards), paragraph 1-40 (Increased retired pay based on decorations - enlisted awardees), provides that any enlisted man who is credited with extraordinary heroism in the 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 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 600-8-22, paragraph 3-8, provides that the Distinguished Service Cross is 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.  Army Regulation 600-8-22, paragraph 3-13, 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.

11.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) provides for increased retired pay based on extraordinary heroism.  The regulation specifically states:

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/her retired pay increased by 10%, provided his/her total retired pay (including the increase) does not exceed 75% 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 [office symbols for the U.S Army Total Personnel Command] for determination of such entitlement.

12.  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% 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% of the amount determined under paragraph (1) (but not more than 75% 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 contends his record should be corrected by amending his retirement orders to show he is authorized a 10% increase in his retired pay based on his award of the Soldier's Medal for heroism.

2.  On 12 July 2007, the Army Decorations Board, acting on behalf of the Secretary of the Army, determined that the degree of heroism did not meet the criteria for increased retired pay and denied his eligibility for a 10% increase in his retired pay.

3.  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.

4.  Following a thorough review and careful consideration of the facts and circumstances of this case, this Board determined that the degree of heroism did not meet the criteria for increased retired pay and that the overall merits of this case are insufficient as a basis to amend the decision set forth by the Army Decorations Board.  Therefore, there is no basis for granting his request.

5.  This action in no way diminishes the heroism and sacrifices the applicant made in service to this Nation.  His actions on 31 March 1993 were recognized by award of the Soldier's Medal for heroism.  The applicant and all Americans should be justifiably proud of his service in arms and the recognition bestowed upon him.

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)                                         AR20110001654



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ABCMR Record of Proceedings (cont)                                         AR20110001654



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