IN THE CASE OF:
BOARD DATE: 2 February 2012
DOCKET NUMBER: AR20110015166
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 retired pay for being a recipient of the Distinguished Service Cross (DSC).
2. The applicant states:
a. he requests his orders for award of the DSC for extraordinary heroism in connection with military operations involving conflict with an armed hostile force in the Republic of Vietnam be upgraded and reported to the Defense Finance and Accounting Service for authorization of the 10% pay.
b. he requests an exception to policy for award of the 10% pay increase. He disagrees with the findings from the Human Resources Command that he must have 20 or more years of active service to be eligible for the entitlement.
c. he did not elect to be medically retired. It was his full intention to complete a full military career (20 years or more) but due to injuries he sustained from combat he had no choice in the matter but to be medically retired against his choice.
3. The applicant provides:
* Army Decorations Board memorandum
* Orders and award certificate for the DSC
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DD Form 215 (Correction to DD Form 214)
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. Having prior active service in the U.S. Marine Corps, the applicant enlisted in the Regular Army on 17 November 1964. He was honorably discharged on
25 November 1965 for immediate reenlistment. He reenlisted on 26 November 1965 for a period of 6 years. He served in Vietnam from 19 January 1966 until he was wounded in action on 19 November 1966 and transferred to the United States on 28 November 1966 for further treatment.
3. Orders, dated 13 January 1967, show he received the DSC for extraordinary heroism on 19 November 1966 in connection with military operations involving conflict with an armed hostile force in Vietnam.
4. On 7 November 1967, he was released from active duty and placed on the Temporary Disability Retired List (TDRL) the following day. He completed a total of 6 years, 11 months, and 21 days of creditable active service. He was removed from the TDRL on 30 November 1970 and placed on the retired list effective 1 December 1970 (permanent disability 70%).
5. Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not show the DSC. However, his DD Form 215, dated 10 March 1975, shows the DSC was added to item 24 of his DD Form 214.
6. He submitted a request to the Awards and Decorations Branch, U.S. Army Human Resources Command, Fort Knox, KY for entitlement to increased retired pay. On 22 June 2011, he was informed by letter his request would not be forwarded to the Army Decorations Board for consideration because he did not meet the basic requirements for the 10% retired pay increase. He did not meet the required 20 years of active Federal service.
7. Paragraph 1-40 of Army Regulation 600-8-22 (Military Awards) 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, the DSC, Navy Cross, or Air Force Cross satisfies the requirement for extraordinary heroism.
DISCUSSION AND CONCLUSIONS:
1. Evidence shows the applicant received the DSC for extraordinary heroism on 19 November 1966 in Vietnam. Evidence also shows he was placed on the TDRL on 8 November 1967 after completing 6 years, 11 months, and 21 days of creditable active service.
2. His contentions were carefully considered. However, since he did not complete 20 years or more of active Federal service, by law, he is not entitled to the 10% increase in retired pay. Regrettably, there is no basis for granting the requested relief.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X____ ____X____ ____X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by him in service to our Nation. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ 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.
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