IN THE CASE OF:	  

		BOARD DATE:	  29 July 2014

		DOCKET NUMBER:  AR20130020264 


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 reconsideration of that portion of the Board's previous decision regarding the effective date of a 10-percent increase in retired pay based on award of the Soldier's Medal.

2.  The applicant states the effective date should be the date he retired, 1 July 1981.  He states he applied for the increase in retired pay before he retired, but he was informed that he needed an eyewitness to the incident.  He finally found one and that individual wrote up everything that happened and mailed it to the Department of the Army (DA).  He states he called DA and spoke with someone who stated the rules had changed and now it is only possible to receive back pay for up to 6 years.  The individual stated that he agreed with him but he could not grant him an exception to policy.  The applicant feels he should be "grandfathered." 

3.  The applicant provides no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120022872, on 22 August 2013.

2.  The applicant's request for an earlier effective date is a new argument, which requires that the Board reconsider his request.
3.  Having prior enlisted service, the applicant enlisted in the Regular Army on 25 June 1962.

4.  On 15 October 1969, he was awarded the Soldier's Medal for heroism on 8 and 9 July 1969 while involved in a classified project.  The citation does not contain the specifics of his actions.

5.  On 28 July 1980, the applicant submitted an application for voluntary retirement.  He did not mark the block indicating he had been awarded the Soldier's Medal.

6.  His DA Form 3713 (Data for Retired Pay), Block 34 (Eligible for 10-Percent Increase in Retired Pay Based on Extraordinary Heroism) shows the "NO" box is marked indicating he was not eligible for an increase in retired pay based on award of the Soldier's Medal.

7.  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.  The DD Form 214 he was issued at the time of retirement shows he was awarded the Soldier's Medal.

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

9.  However, his records show that on 9 February 2007 in response to a Congressional inquiry, officials at the Defense Finance and Accounting Service informed his 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.

10.  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 U.S. Army Human Resources Command (HRC) Military Awards Branch.

11.  On 30 July 2007, the applicant applied to the HRC Military Awards Branch and, on 27 September 2007, HRC officials advised the applicant 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 Board. 

12.  On 10 November 2009, the HRC Military Awards Branch again 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 Board for review.  He was advised 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.

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, the author of the statement 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.  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 major and the applicant put the leaking bomb in a container and it was dropped 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 could be credited with extraordinary heroism if it was 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 have been noted.  However, there is no evidence showing he applied for or in any way indicated he was eligible for a 10-percent increase in retired pay in connection with his application for retired pay.  Further, his official records contain no evidence to suggest that a determination for a 
10-percent increase in retired pay was made at the time he applied for retirement.

2.  Additionally, there is no evidence the barring statute was invoked in this case, given that the Board granted him the 10-percent increase in retired pay with an effective date, resulting in his eligibility for back pay in excess of 6 years  (February 2007-August 2013) as permitted by the barring statute.  Therefore, the barring statute does not appear to be at issue in this case.
 
3.  The original Board decision granted the applicant back pay effective March 2007, the first month following his first application to this Board on 20 February 2007.  Absent evidence the applicant attempted to apply for the 10-percent increase in retired pay based on award of the Soldier's Medal in connection with his application for retirement, there doesn't appear to be a compelling basis at this time for amending the Board's original decision in this regard.

4.  In view of the foregoing, there is an insufficient basis for granting the applicant's request.

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 to amend the decision of the ABCMR set forth in Docket Number AR20120022872, dated 22 August 2013.




      _______ _   _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)                                         AR20130020264



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ABCMR Record of Proceedings (cont)                                         AR20130020264



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