IN THE CASE OF:	  

		BOARD DATE:	    22 August 2013 

		DOCKET NUMBER:  AR20120022872 


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 to be granted a 10-percent increase in his retired pay based on his award of the Soldier's Medal.

2.  The applicant states he requested the 10-percent increase at the time he requested retirement but was told he had to have a witness before it could be approved.

3.  The applicant provides a witness statement from his supervisor at the time, orders awarding him the Soldier's Medal, letter from the U.S. Army Human Resources Command (HRC), privacy release statement, Internet articles regarding the incident in question, his retirement application and orders, his DA Form 3713 (Data for Retired Pay), and his DD Form 214 (Certificate of Release or Transfer from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service, the applicant enlisted in the Regular Army on 25 June 1962.  He served as a medical specialist through a series of continuous reenlistments.

2.  On 15 October 1969 while serving in pay grade E-6 in Okinawa, the applicant was awarded the Soldier's Medal for heroism on 8 and 9 July 1969 while involved in a highly-classified project.  The citation does not contain specifics of his actions.

3.  On 28 July 1980 while serving in pay grade E-8, the applicant submitted an application for voluntary retirement effective 1 July 1981.  The application provided by the applicant and which is contained in his official records does not show he was awarded the Soldier's Medal in block 15 (Awards).

4.  Block 34 (Eligible for 10-Percent Increase in Retired Pay Based on Extraordinary Heroism) of the DA Form 3713 contained in his records, dated 7 August 1980, also does not reflect that he was eligible for an increase in retired pay based on award of the Soldier's Medal.

5.  On 30 June 1981, the applicant was honorably retired in pay grade E-8 and he was placed on the Retired List effective 1 July 1981.  He completed 22 years and 13 days of total active service.  His DD Form 214 issued at the time of his retirement shows he was awarded the Soldier's Medal.

6.  A review of his official records failed to show any evidence that the applicant was considered by the Department of the Army Decorations Review Board for an increase in his retired pay for extraordinary heroism.

7.  However, his records do show that on 9 February 2007 in response to a Congressional inquiry, officials at the Defense Finance and Accounting Service (DFAS) informed the applicant's Congressional representative that there were no orders authorizing the applicant heroism pay and that receipt of the Soldier's Medal does not automatically entitle him to receive heroism pay.  DFAS advised the Congressional representative that the applicant could apply to the Army Board for Correction of Military Records (ABCMR).

8.  On 20 February 2007, the applicant submitted an application to the ABCMR requesting to be granted a 10-percent increase in retired pay based on his award of the Soldier's Medal.  The Board administratively closed the applicant's application on 27 June 2007, advising him that he must first exhaust his administrative remedies by applying to the HRC Military Awards Branch.

9.  On 30 July 2007, the applicant applied to the HRC Military Awards Branch and HRC officials advised the applicant on 27 September 2007 that without a copy of the original recommendation for award of the Soldier's Medal and other relevant documentation, to include a copy of his DD Form 214, they were unable to forward his request to the Army Decorations Review Board.  The applicant was advised to apply to the National Archives to obtain the necessary documents.

10.  On 28 November 2007, officials at the National Archives advised the applicant that the documents he requested had been disposed of and were no longer available.

11.  On 10 November 2009, the HRC Military Awards Branch advised the applicant that without a copy of the original recommendation for award of the Soldier's Medal and other relevant documentation, they were unable to forward his request to the Army Decorations Review Board for review and advised the applicant to obtain notarized eyewitness statements that would help to recreate the recommendation for award.  He was advised to reapply when he had obtained the statements.

12.  On 2 August 2010, he again applied to the ABCMR and again the staff of the Board advised him that he had to exhaust his administrative remedies with the HRC Military Awards Branch.

13.  On 30 November 2012, HRC dispatched a letter to the applicant's former supervisor and witness in this case, stating they could not approve the applicant's request at that time.  HRC stated that a review of his DA Form 2339 and DA Form 3713 did not indicate he was eligible for an increase in retired pay and noted that the documents in question provided a one-time opportunity for the retiring Soldier to receive a 10-percent increase in retired pay for receipt of a qualifying award; however, there was no such assertion on the applicant's documents.  HRC advised the applicant to apply to the ABCMR.

14.  The witness statement provided by the applicant is a 3-page letter explaining that while stationed in Okinawa in July 1969, he was the applicant's supervisor when the applicant was designated as the senior medic assigned to a classified operation to renovate "VX" nerve gas bombs that were stored in underground igloos.  He states that during the process of going through the sand blaster, one of the bombs leaked and killed all of the rabbits in cages that were kept in the warehouse at once.  An alarm was sounded and all Soldiers were required to put on their masks and administer atropine injections.  Some of the Soldiers were afraid to do so and the applicant administered the injections for them.  Most of the chemically-trained Soldiers got scared and ran off and the commander (a major) asked the applicant to help him contain the leaking bomb.  The applicant agreed and the major and the applicant put the leaking bomb in a container and dropped it into the South China Sea.  He also states that somehow the word leaked out and the incident was published in the news media.  He further states he was present when he and the applicant met up with the major who was the commander of the chemical unit and who told the applicant that he had been recommended for award of the Soldier's Medal and he would receive a 10-percent increase in retired pay if he remained in the service for 20 years.

15.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provided that any enlisted man who was credited with extraordinary heroism in the line of duty and who retired after 20 years of active Federal service was entitled to a 
10-percent increase in retired pay, subject to the 75-percent limit of total retired pay.  Any enlisted awardee of the Medal of Honor, Distinguished Service Cross, or Navy Cross satisfies the requirement for extraordinary heroism.  An enlisted awardee of the Distinguished Flying Cross for noncombat-related heroism or the Soldier's Medal may be credited with extraordinary heroism if it is determined by the Secretary of Army that the heroism was equivalent to that required for award of the Distinguished Service Cross.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and supporting documents have been noted and appear to have merit.

2.  While a 10-percent increase in retired pay is not automatic for award of the Soldier's Medal, a determination was required in regard to the applicant's level of heroism at the time of his retirement in order to ascertain if it rose to the level of extraordinary heroism before an increase in retired pay could be made.

3.  The applicant's official records contain no evidence to suggest that such a determination was made at the time he applied for retirement, probably because the appropriate application form did not include the fact that he had an award for heroism.

4.  The National Archives indicated that there are no records available for review in regard to the applicant's award of the Soldier's Medal and HRC has taken the position that he missed his one chance because he did not include it on his application for retirement.  Additionally, HRC stated that a copy of the original recommendation for award of the Soldier's Medal was necessary to determine the level of heroism involved.

5.  However, the staff of the Board cannot find any regulatory provisions that indicate that an individual has only one opportunity to apply for an increase in retired pay based on an award for heroism.  This is especially true since there are occasions where individuals retire before receiving such awards.  Additionally, it is only on rare occasions that individuals ever obtained copies of recommendations for awards prior to 1990 unless the awards were downgraded and the corresponding recommendations were placed in their personnel records.

6.  In regard to the level of heroism involved in the applicant's case, it appears that it takes extraordinary heroism to remain in an area where nerve gas is visibly leaking, detection animals have died, and the chemical experts have evacuated, in order to administer aid and take action to contain the situation to prevent further casualties of military and civilian personnel at the risk of one's own life.

7.  It is also noted that the incident in question was classified at the time and may not have included the specifics that are provided by the applicant's supervisor in his witness statement and also may not have been available for review at the time.

8.  Inasmuch as the increase in retired pay for award of the Soldier's Medal requires an application to determine if extraordinary heroism was involved, as a matter of equity the applicant should be granted a 10-percent increase in retired pay effective the first month following his first application to this Board on 20 February 2007.  Accordingly, his increase should be effective March 2007.

BOARD VOTE:

___X____  __X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was granted a 10-percent increase in retired pay effective March 2007 based on 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)                                         AR20120022872



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ABCMR Record of Proceedings (cont)                                         AR20120022872



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