MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            21 April 1999
	DOCKET NUMBER:   AC98-08895
				   AR1998013398

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Gary F. Geraets		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Reinstatement of his 10 percent increase in retired pay for extraordinary heroism from 26 May 1985 and payment of back pay.

APPLICANT STATES:  That the Awards Branch of the Total Army Personnel Command (PERSCOM) used “an unorthodox” Army Audit Agency (AAA) report to discontinue his benefit.  He also contends he was never given due process.  The applicant states that the Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA (MRA)) continued erroneous interpretation of law and regulation to cover up the 10 percent retired pay that was withdrawn.

In support of his application, the applicant submitted copies of a 2 June 1996 letter to the AAA, a 20 May 1969 letter from the administrative officer of the 228th Aviation Battalion, a 30 May 1995 freedom of information request to the Secretary of the Army, an undated letter from the West Virginia Division of Veterans Affairs, a 17 March 1997 letter from the Executive Officer of the ASA (MRA), a 4 December 1996 letter from the Special Assistant to the ASA (MRA), a 20 May 1996 letter from the Awards Branch of PERSCOM, an undated letter from the applicant to the President of the United States, an 18 November 1996 letter from the Special Assistant to the President, a 29 December 1994 memorandum from the Inspector General of the West Virginia Army National Guard (WVARNG) to PERSCOM, a 8 January 1998 letter from Senator Byrd to the applicant, a 29 December 1997 letter from PERSCOM to Senator Byrd, a 23 August 1996 letter from Representative Wise to the applicant, a 8 January 1992 letter from Senator Rockefeller to the applicant, a 7 August 1985 letter to Congressman Mollohan, a 21 May 1996 letter from the ASA (MRA), a 29 December 1997 letter from the Army Review Boards Agency Support Division, a newspaper article, dated 3 July 1996, a 28 May 1996 memorandum from the Inspector General of the WVARNG to the National Guard Bureau Inspector General, an extract of United States Military Decorations and Medals from the 1975 edition of the World Book Encyclopedia, 1st Cavalry Division General Orders Number 7705 (dated 9 July 1968) awarding the applicant the Distinguished Flying Cross (DFC) for action on 21 April 1968, a 28 May 1996 letter from the pilot of the aircraft involved in the action on 21 April 1968, a 18 June 1996 letter from the aircraft commander of the helicopter involved in the action on 21 April 1968, and extract of paragraph 1-39 from Army Regulation 600-8-22 (dated 25 February 1995), a 15 April 1991 letter from the Awards Branch of PERSCOM, proposed citation for DFC, an extract of an award recommendation for the DFC, and an unsigned copy of a letter of an undated letter from the applicant to the ASA (MRA).  

Documents submitted by the applicant were provided to the Board.  The analyst provided the Board with the AAA report of audit and the information paper which was an enclosure to the 21 May 1996 ASA (MRA) letter to the applicant, but not submitted by the applicant.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant first entered active duty on 11 January 1949 and completed over 21 years of service including tours of duty in Vietnam from July 1967 to July 1968 and again from November 1969 to December 1970.  He was separated from active duty on 31 May 1972 and transferred to the Retired Reserve the next day.

The applicant’s DD Form 214 (Report of Discharge or Transfer), covering the period 18 May 1966 through 17 May 1969, shows the entry “Dist Flying Cross” in item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized).  This DD Form 214 covers the entire period of the applicant’s first tour of duty in Vietnam and indicates only one award of the Distinguished Flying Cross was authorized.  

The applicant’s DD Form 214, covering the period from 18 May 1969 through 31 May 1972, shows the entry in item 24 “Distinguished Flying Cross w/1 Oak Leaf Cluster”, which indicates that the applicant received two awards of the DFC. However, there is no order or other evidence which shows that the applicant was recommended for or was entitled to a second award of the DFC.

The applicant’s service records contain 1st Cavalry Division General Orders Number 7705, dated 9 July 1968, which awarded him the DFC “for heroism, while participating in aerial flight evidenced by voluntary action above and beyond the call of duty”, on 21 April 1968.  At the time, the applicant was serving as a flight engineer on a CH-47 helicopter during a combat support mission in the A Shau Valley, Republic of Vietnam.  The narrative reason for the award in General Orders Number 7705 states in part:  “While participating in the resupply of an infantry unit that was heavily engaged with a large enemy force, [the applicant] exposed himself to intense enemy ground fire as his aircraft flew through adverse weather conditions and hazardous mountain terrain in order to deliver it’s vital cargo.  When a crewmember was seriously wounded by enemy ground fire, [the applicant] assisted in the administration of first aid to his injured comrade until they could reach adequate medical facilities.”

The applicant’s records contain a DA Form 3713 (Data for Retired Pay), dated 26 May 1972, which shows in item 36 (Remarks) the entry “Individual awarded Distinguished Flying Cross, Citation forwarded to TAGO, Washington D C in accordance with paragraph 12-5c AR 635-200.”

Paragraph 12-5c of Army Regulation 635-200 (Enlisted Personnel), in effect at the time of the applicant’s retirement on 1 June 1972, provided for increased retired pay based on extraordinary heroism.  Specifically the regulation stated:  “An individual who has been awarded the Medal of Honor, Distinguished Service Cross, or Navy Cross for extraordinary heroism will, upon retirement under 10 USC 3914, have his retired pay increased 10 percent, provided his total retired pay (including the increase) does not exceed 75 percent 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 HQDA [office symbols for PERSCOM] for determination of such entitlement.”

Paragraph 19e of Army Regulation 672-5-1 (Military Awards), in effect at the time of the applicant’s retirement on 1 June 1972, states 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 percent increase in retired pay, subject to the 75 percent 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.”  

Effective 3 June 1974, a new version of Army Regulation 672-5-1 became effective.  In this regulation, the wording of paragraph 1-37g pertaining to increased retired pay for enlisted awardees of the DFC or Soldier’s Medal was the same as in the previous regulation except as follows (the change is underlined and for comparison see the last sentence of the previous paragraph): “An enlisted awardee of the Distinguished Flying Cross awarded for noncombat-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.”  This same wording in regard to “noncombat related heroism” appears in all subsequent versions of Army military awards regulation.

U.S. Army Finance and Accounting Center letter, dated 5 November 1982, advised the applicant that he “was entitled to receive an additional 10 percent of retired pay, for an act of heroism in the line of duty.”  This letter further stated that he was due an adjustment of $4,994.12, less taxes, for the period 1 November 1976 through 31 October 1982 and that adjustment for the period 1 June 1972 through 31 October 1976 was barred and could not be paid.

Based on a 12 April 1985 request by the Army Deputy Chief of Staff for Personnel (DCSPER), the AAA conducted an audit entitled “Audit of Erroneous Payments for Extraordinary Heroism”.  The audit was accomplished between May and August 1985 and resulted in a 30 September 1985 report to the DCSPER.  The audit report determined that a number of retirees were receiving heroism pay erroneously.  The recommendations stemming from the audit included (not all are listed):  1)  notifying the retirees, who are ineligible or whose eligibility could not be documented, to furnish evidence to substantiate their eligibility for heroism pay;  2)  requesting the Finance Center suspend heroism pay for ineligible retirees;  3) have the Army Decorations Board make required reviews and retain a record of their actions.  The audit report also stated that payment of heroism pay to the 115 retirees determined to be ineligible by PERSCOM had been stopped in February 1985 and that, on 7 May 1985, the Comptroller General approved a waiver so that erroneous payments would not be collected from the retirees identified as not being entitled to heroism pay.

A 26 March 1985 letter from the Awards Branch of PERSCOM acknowledged that the applicant had provided documentation to PERSCOM regarding his award of the DFC.  This letter also advised the applicant that his 10 percent increase in his retired pay had been discontinued because this entitlement was “only authorized for a Distinguished Flying Cross which has been awarded for non-combat heroism.”

A 1 November 1990 letter from PERSCOM notified the Finance Center that the applicant was not entitled to the 10 percent increase in retired pay based on award of the Distinguished Flying Cross.  This letter stated that, in order to be considered for the increased retired pay, the DFC must have been awarded for “noncombat heroism” and his DFC was awarded for combat action in Vietnam.  This letter also states:  “He was eligible and could have been considered for award of the Distinguished Service Cross by virtue of the fact that the incident occurred in an area authorized combat related awards.  The determination to award the DFC was an automatic determination that his actions on that day were not considered extraordinary heroism.  Because the 10% increase in retired pay is based in law there are no exception to the rules for consideration for the increase.” 

On 12 September 1995 the applicant wrote to the ASA (MRA) in which he asked for reinstatement of his retired pay and submitted a number of questions related termination of his heroism pay and procedures regarding award of heroism pay.  After review by the Army General Counsel, the ASA (MRA) responded to the applicant by letter and enclosed an information paper which answered those questions posed by the applicant.  The ASA (MRA) response essentially stated that he was not entitled to the heroism pay because the 10 percent increase in retirement pay can only result from award of a DFC when that DFC has been awarded for non-combat heroism.

Title 10 United States Code section 3991 provides for computation of retired pay. Specifically, Title 10 United States Code section 3991(a)(2) provides for an additional 10 percent 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 percent of the amount determined under paragraph (1) (but to not more than 75 percent of the retired pay base upon which the computation of such retired pay is based.)  The Secretary’s determination as to extraordinary heroism is conclusive for all purposes.”  ( Analyst’s Note:  Section 3914 refers to the voluntary retirement of Army enlisted members with 20 to 30 years of service.)

Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, 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.

Army Regulation 600-8-22 (Military Awards) provides in pertinent part for award of the Distinguished Flying Cross.  The regulation states that the Distinguished Flying Cross is awarded to any person who, while serving in any capacity with the Army of the United States, distinguished himself or herself by heroism or extraordinary achievement while participating in aerial flight.  The performance of the act of heroism must be evidenced by voluntary action above and beyond the call of duty.  The extraordinary achievement must have resulted in an accomplishment so exceptional and outstanding as to clearly set the individual apart from his or her comrades or from other persons in similar circumstances.

Army Regulation 600-8-22 provides, in pertinent part, 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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  Title 10 U.S.C. section 3991, in effect at the time of the applicant’s retirement and currently in effect, permits a 10 percent increase in retired pay of enlisted members (not to exceed 75 percent of their base pay) if credited by the Secretary of the Army with extraordinary heroism.  In effect, this provision of law leaves to the discretion of the Secretary of the Army to determine what constitutes “extraordinary heroism” and the basis for applying this provision of law.

2.  Designated representatives of the Secretary of the Army promulgated regulations implementing Title 10 U.S.C. section 3991.  Specifically, Army Regulation 672-5-1 (Military Awards), and its successor regulation 600-8-22, provide that enlisted awardees of the Medal of Honor and the Distinguished Service Cross automatically meet the requirement for “extraordinary heroism” and, as a result, are automatically entitled to the 10 percent increase in retired pay within the parameters established in the law.  The Board notes that the Medal of Honor and Distinguished Service Cross are only authorized for acts of conspicuous gallantry and intrepidity at the risk of his life above and beyond the call of duty while engaged in an action against an enemy of the United States or “extraordinary heroism” while engaged in action against an enemy of the United States, respectively.

3.  A provision was included in the Army awards regulation which also authorized consideration for the 10 percent increase in retired pay in those cases where the Distinguished Flying Cross and Soldier’s Medal were awarded for “noncombat-related heroism”.  Further, regulations were promulgated, within the discretion afforded to the Secretary of the Army under Title 10 U.S.C. section 3991, which restricted the 10 percent increase in retired pay for “noncombat-related heroism” awards of the DFC and Soldier’s Medal to those cases where the “noncombat-related heroism” displayed was equivalent to “extraordinary heroism” required for award of the Distinguished Service Cross.  The Army Decorations Board was delegated the authority to determine if acts of noncombat-related heroism met the standard of “extraordinary heroism” required for award of the Distinguished Service Cross.

4.  The specific wording “noncombat-related heroism” was not present in Army Regulation 672-5-1 and Army Regulation 635-200 effective on the date of the applicant’s retirement; however, these regulations do refer to enlisted awardees of the DFC or the Soldier’s Medal being credited by the Secretary of the Army with extraordinary heroism only if it was determined that the heroism displayed was equivalent to that required for award of the Distinguished Service Cross.  Prior to the applicant’s notification that he was entitled to heroism pay, the Army awards regulation concerning the 10 percent retired pay increase to enlisted awardees of the DFC and Soldier’s Medal had been clarified with the wording “noncombat-related heroism”.  Therefore, the Board concludes that, at the time of the applicant’s retirement, there was no intent by the Army or provision of regulation in effect to consider or authorize a 10 percent retired pay increase to enlisted awardees of the DFC for heroism in combat.

5.  Based on review of pertinent law and governing Army awards regulations, it is clear to the Board that the 10 percent increase in retired pay for enlisted awardees of the DFC can only be considered when the DFC is awarded for “noncombat-related heroism”.  Further, the 10 percent increase in retired pay based on award of the DFC for noncombat-related heroism can only be awarded after determination by the Army Decorations Board that the noncombat-related heroism resulting in award of the DFC was equivalent to “extraordinary heroism” required for award of the Distinguished Service Cross.  

6.  Evidence of record shows the applicant is entitled to only one DFC which was awarded by 1st Cavalry Division General Orders Number 7705, dated 9 July 1968, for heroism in combat in Vietnam.  Therefore, he was not entitled at the time of his retirement and is not now entitled to consideration for heroism pay because his DFC was awarded for heroism in combat.

7.  The applicant and the WVARNG Inspector General contend the governing award regulation is being misinterpreted to exclude combat related DFC’s from consideration for heroism pay.  In this matter, the Board finds that the governing regulations were intended to and do preclude consideration of DFC’s awarded for action against an armed enemy from consideration for heroism pay.  The Board notes that the standard for award of heroism pay is “extraordinary heroism”.  In combat, “extraordinary heroism” is recognized with award of the Distinguished Service Cross, not by award of the DFC, per the awards regulation. 

8.  The applicant and the WVARNG Inspector General contend that due process was denied in the termination of heroism pay.  The Board found that the applicant was not at the time in question denied and is not currently being denied due process based on the following:

a.  The applicant was not entitled to heroism pay under law and regulation in effect at the time he was erroneously awarded through administrative error a 10 percent increase in retired pay and was also erroneously paid through administrative error an adjustment of $4,994.12, less taxes, as retroactive payment of heroism pay for the period 1 November 1976 through 31 October 1982.  The Board also noted that the applicant was not required to return the erroneous payments.  

b.  As stated in the AAA report, PERSCOM review resulted in discontinuance of erroneous payments to 115 retirees ineligible for heroism pay by February 1985.  Although there is no document available to the Board which shows the authority for discontinuance of the applicant’s heroism pay in February 1985, the applicant was subsequently notified by letter, dated 26 March 1985, that information he provided concerning his DFC had been received and that his 10 percent increase in retired pay had already been discontinued.  The AAA report (paragraph 3a) stated that PERSCOM’s determination (prior to the AAA audit) that 115 retirees were ineligible for heroism pay was “correct”.  The Board notes that AAA reviewed this action by PERSCOM, that AAA determined it was correct, and that action by PERSCOM was the basis for  termination of the applicant’s heroism pay before the AAA audit was completed and the results reported to the DCSPER.

	c.  A finding of the AAA report discussed the need for the Army Decoration Board to review retiree eligibility for heroism pay.  The applicant and the WVARNG Inspector General found no indication that the Army Decorations Board considered the applicant’s case in 1985 which they contend casts “serious doubts about the fairness and the due process” involved in the discontinuance of the applicant’s heroism pay.  Under Army regulation in effect at the time, the applicant was not entitled to heroism pay or to review by the Army Decoration Board.  The regulation governing awards at the time of the AAA audit and the termination of the applicant’s heroism pay specifically limited determinations of extraordinary heroism based on award of the DFC and the Soldier’s Medal to acts of noncombat-related heroism.  Therefore, the argument that there was lack of due process in this matter is not relevant.

9.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

10.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

CMF____  SK_____  GFG_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-0895/AR1998013398	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990421	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19720531	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	RETIREMENT	
BOARD DECISION	DENY	
REVIEW AUTHORITY	MR HARRELL	
ISSUES         1.	107.00	
2.		
3.		
4.		
5.		
6.