PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:                 9 February 2000
	DOCKET NUMBER:        AR1999024277

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

	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Deborah S. Jacobs		Member	
	Ms. Carol Jo Suiter		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that he be awarded a 10 percent increase 
in retired pay due to award of the Silver Star and payment of appropriate back pay effective 1 January 1975.

3.  The applicant states that he is a recipient of the Silver Star and is entitled to a 10 percent increase in retired pay up to the maximum of 75 percent.  He also states that the Silver Star is not listed on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 31 December 1974.  In support of his application he submits a copy of orders awarding him the Silver Star and Purple Heart, copy of his retirement orders, and a copy of his DD Form 214 with an effective date of 31 May 1973.

4.  The applicant’s military records show that he initially enlisted in the United States Navy on 26 September 1945 and continued to serve until he was honorably discharged on 24 June 1949.

5.  After a break in service, he enlisted in the Regular Army on 9 June 1950 and continued to serve through a series of continuous reenlistments until he was placed on the United States Retired List effective 1 January 1975 in the pay grade of MSG/E-8.  He completed 28 years, 3 months and 21 days of total creditable service.

6.  Records show the applicant served in Vietnam from 11 July 1968 to 10 August 1969.

7.  The applicant’s DD Form 214 with an effective date of 31 December 1974
does not show the Silver Star.

8.  Headquarters, United States Army Vietnam General Orders Number 3426, dated 7 September 1969, awarded the Silver Star to the applicant for gallantry in action while engaged in military operations involving conflict with an armed hostile force in the Republic of Vietnam.

9.  The applicant’s service personnel records contain a DA Form 3713 (Data for Retired Pay), dated 17 December 1974, which shows in item 34 (Eligible for Increase in Retired Pay Based on Extraordinary Heroism) the entry “no” marked with an “x”.

10.  Army Regulation 600-8-22 provides, in pertinent part, that the Silver Star is awarded for gallantry in action against the enemy.  The required gallantry (spirited and conspicuous acts of heroism and courage) must have been performed with marked distinction.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

11.  Army Regulation 600-8-22 provides, in pertinent part, that the Medal of Honor is awarded by the President in the name of Congress to a person who, while a member of the Army, distinguishes himself conspicuously by 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.  The deed performed must have been one of personal bravery or self-sacrifice so conspicuous as to clearly distinguish the individual above his comrades and must have involved risk of life. Incontestable proof of the performance of the service is required.

12.  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.

13.  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.)

14.  Army Regulation 635-200 (Enlisted Personnel), in effect at the time of the applicant’s retirement on 1 January 1975, provided in paragraph 12-5c 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.

15.  Paragraph 19e of Army Regulation 672-5-1 (Military Awards), in effect at the time of the applicant’s retirement on 1 July 1980, 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. 

16.  Army Regulation 600-8-22 (Military Awards), currently in effect, provides in paragraph 1-39 for increased retired pay based on decorations for enlisted awardees.  Specifically, this provision states that any enlisted member who is credited with “extraordinary heroism” in the line of duty and who retires after 20 or more years of active Federal service is entitled to a 10 percent increase in retired pay subject to the 75 percent limit on total retired pay.  The regulation states:  “any awardee of the Medal of Honor, the Distinguished Service Cross, Navy Cross or Air Force Cross satisfies the requirement for extraordinary heroism.

CONCLUSIONS:

1.  Based on regulation in effect at the time of the applicant’s retirement and regulation currently in effect, the Silver Star is not awarded for “extraordinary heroism”.  The Silver Star is awarded for “gallantry in action”.  Therefore, it is not one of the awards which qualifies for the 10 percent increase in retired pay for heroism.  

2.  The DA Form 3713, which was prepared on 17 December 1974, shows that the applicant was not entitled an increase in retired pay based on “extraordinary
heroism”.

3.  Based on the foregoing, the applicant is not entitled to a 10 percent increase in his retired pay based on award of the Silver Star on 7 September 1969 and is not entitled to the requested back pay.  

4.  Evidence of records shows that the Silver Star is not shown on the applicant’s DD Form 214 with an effective date of 31 December 1974.  Therefore, he is entitled to correction of his DD Form 214 with an effective date of 31 December 1974 to show the award of the Silver Star.

5.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing in item 26 (Decorations and Awards) of his DD Form 214 with an effective date of 31 December 1974 to show that he was awarded the Silver Star.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

RVO____  DSJ_____  CJS____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor, Jr.
		        CHAIRPERSON

INDEX

CASE ID	AR1999024277	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000209	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19741231	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  283		
2.		
3.		
4.		
5.		
6.