IN THE CASE OF:	  

		BOARD DATE:  13 September 2012

		DOCKET NUMBER:  AR20120005372 


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 his retired pay be increased by 10 percent (10%) due to his award of the Soldier’s Medal. 

2.  The applicant states this error occurred due to outprocessing at two locations: Fort Monmouth, NJ, and Redstone Arsenal, AL.  He has attempted to resolve this issue for several years.

3.  The applicant provides:

* General Orders (GO) Number 18 and accompanying certificate for award of the Soldier's Medal
* Recommendation for award
* DD Form 214 (Report of Separation from Active Duty)
* Multiple Retiree Account Statements
* Extract of Title 10, U.S. Code (USC), section 3991

CONSIDERATION OF EVIDENCE:

1.  Title 10, USC, 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's military records show he enlisted in the Regular Army on      22 October 1965 and he held military occupational specialty 55X (Ammunition Inspector).  He served in variety of stateside or overseas assignments, including as listed below, and he attained the rank of sergeant first class (SFC)/E-7:

* Korea, 30 November 1966 to 23 December 1967
* Vietnam, 7 February 1968 to 25 May 1969
* Vietnam, 18 August 1970 to 13 August 1971
* Ruyuku Islands, Japan, 18 August 1970 to 14 December 1976

3.  GO Number 18, issued by Headquarters, 101st Airborne Division, on 2 January 1971 awarded him the Soldier's Medal for heroism not involving actual conflict with an armed hostile force in Vietnam on 29 November 1970, while holding the rank of staff sergeant (SSG).  While guiding a truck through deep flood waters, he noticed one of the men slip and fall into the debris filled flood water.  Despite the danger of hitting a submerged object in the turbulent current, he jumped to the man's rescue and pulled him out to safety.  

4.  He was honorably discharged from active duty on 3 November 1976 to accept an appointment as a warrant officer of the Army.  His DD Form 214 shows he completed 11 years and 12 days of creditable active service.

5.  He was appointed as a warrant officer of the Army on 4 November 1976 and held MOS 411A (Ammunition Technician).  He served in variety of stateside or overseas assignments, including Germany, and he attained the rank of chief warrant officer three (CW3).

6.  He retired on 31 December 1985 and placed on the retired list in accordance with section 1293, Title 10, USC, in his retired grade of CW3 on 1 January 1986. He completed 20 years, 2 months, and 9 days of total active service. 

7.  The applicant’s DA Form 3713 (Data for Retired Pay) which would have shown the entry in item 34 (Eligible for 10% Increase in Retired Pay Based on Extraordinary Heroism) is not available for review with this case.  

8.  Title 10, USC, section 3991 states any enlisted member who is credited with extraordinary heroism in the line of duty who retires after 20 or more years after federal service is entitled to a 10-percent increase in retired pay.
9.  Army Regulation 635-200 (Enlisted Administrative Separations), paragraph 12-4, implements Title 10, USC, section 3914 which governs 20-year retirement by a Soldier of the Regular Army, the Army National Guard of the United States and the U.S. Army Reserve, and states that a request for retirement may be submitted by a Soldier who has completed 20 years, but less than 30 years, of active Federal service in the U.S. Armed Forces.  Approval of the request for retirement will be at the discretion of the Secretary of the Army.

10.  Paragraph 12-4(c) states that a Soldier who retires under 10 USC 3914 and has been awarded the Medal of Honor, Distinguished Service Cross, or Navy Cross for extraordinary heroism will have his/her retired pay increased 10%. However, the total retired pay (including the increase) may not exceed 75% of the basic pay upon which computed.  A Soldier who has been awarded the Distinguished Flying Cross, the Soldier's Medal, or equivalent Navy decoration may be credited with extraordinary heroism if it is determined that the heroism was equivalent to that required for award of the Distinguished Service Cross.  In all cases involving extraordinary heroism, a copy of the order that awards the decoration and the separate citation if not contained in the order will be submitted to Headquarters, Department of the Army, for verification and determination.  

11.  Army Regulation 600-8-22 (Military Awards) states 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. Paragraph 1-40 pertains to increased retired pay based on decorations-enlisted awardees.  It states Title 10, USC, 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.  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 enlisted status. 

12.  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, written request for determination and confirmation of entitlement to increased retired pay will be forwarded to Commander, Army Human Resources Command.  The request will be accompanied by a copy of the order which awards the decoration and the citation, if not included in the order. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was awarded the Soldier’s Medal for heroism not involving actual conflict with an armed enemy on 29 November 1970, while serving in Vietnam, in an enlisted status, in the rank of SSG.  

2.  The applicant continued to serve until he was honorably discharged on 3 November 1976 to accept an appointment as a warrant officer of the Army.  His DD Form 214 shows he completed 11 years and 12 days of creditable active service.

3.  He was appointed as a warrant officer, attained the rank of CW3 and continued to serve until retired under section 1293, Title 10, USC, on 31 December 1985, as a CW3.  

4.  He did not retire in an enlisted status; he did so in warrant officer status, and under section 1293 of Title 10, USC.  The provisions of the law that allow the 10% additional retired pay for instances of awards involving extraordinary heroic acts applies to enlisted Soldiers; not warrant or commissioned officers.  He was not eligible to be considered since the law only provided this entitlement to enlisted personnel retired after 20 years of service.  

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)                                         AR20120005372





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ABCMR Record of Proceedings (cont)                                         AR20120005372



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