IN THE CASE OF: BOARD DATE: 28 January 2016 DOCKET NUMBER: AR20150006089 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, in effect, that he receive an additional 10 percent (%) retired pay for being the recipient of the Silver Star. 2. The applicant states, in effect, the Defense Finance and Accounting Service (DFAS) informed him his retirement orders needed to be corrected to reflect his award of the Silver Star before he can receive an additional 10% increase in his retired pay. 3. The applicant provides: * Silver Star Certificate * General Orders (GO) Number 682, dated 10 May 1971 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * email correspondence between his Retirement Services Officer (RSO) and the DFAS Retired and Annuitant Pay office, dated 8 December 2014 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, 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 reenlisted in the Regular Army on 30 April 1970 after having previously completed a series or reenlistments or extensions in the Regular Army. 3. GO Number 682, issued by Headquarters, XXIV Corps, Vietnam on 10 May 1971 awarded him the Silver Star for gallantry in action while engaged in military operations involving conflict with an armed hostile force in the Republic of Vietnam on 25 February 1971. 4. His record contains a DA Form 2339 (Application for Voluntary Retirement), dated 10 May 1972. This document does not list his Silver Star. 5. Letter Orders Number RE 2-145, issued by Headquarters, 5th U.S. Army, Fort Sam Houston, TX, on 13 February 1973 directed he be relieved from active duty on 31 March 1973 and placed on the retired list effective 1 April 1973. These orders do not mention his Silver Star. 6. His DD Form 214 shows he was honorably retired from active duty on 31 March 1973 after completing over 21 years of active service. His DD Form 214 lists his Silver Star. 7. He provided a copy of email correspondence between his RSO and the DFAS Retired and Annuitant Pay office, dated 8 December 2014. This correspondence shows: a. The RSO emailed the DFAS Retired and Annuitant Pay office and stated he had a retired Army Soldier who received the Silver Star for heroism in 1973 and wondered if this award would qualify the Soldier for the 10% increase in retired pay in accordance with Title 10, U.S. Code (USC), subsection 3991. b. The point of contact at DFAS responded that it was his understanding the Silver Star by itself did not guarantee the 10% increase in retired pay. He informed the RSO that the retirement orders needed to be verified and should reflect receipt of the award, and added "We have checked with Policy before and verified this." The DFAS contact further stated that if the orders could not be located the member would have to apply to the ABCMR. 8. Title 10, U.S. Code (USC), Subsection 3991a(2) (Additional 10% for certain enlisted members credited with extraordinary heroism) 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% of the amount determined under paragraph (1) (but to not more than 75% 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. 9. Army Regulation 600-8-22 (Military Awards), paragraph 1–40 (Increased retired pay based on decorations-enlisted awardees) states that Title 10, USC, subsection 3991 provides that any enlisted Servicemember who is credited with extraordinary heroism in line of duty and who retires after 20 or more years of active Federal service is entitled to a 10% increase in retired pay, subject to the 75% limit on total retired pay. Any awardee of the Medal of Honor, the Distinguished Service Cross, Navy Cross, or Air Force Cross satisfies the requirement for extraordinary heroism. An enlisted recipient of the Soldier's Medal or Distinguished Flying Cross awarded for noncombat-related heroism 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. 10. Title 10, U.S. Code, section 1130 (10 USC 1130), allows the Service Secretary concerned to review a proposal for the award of, or upgrading of, a decoration that is otherwise precluded from consideration by limitations established by law or policy. Request of this nature must be referred to the Service Secretary from a Member of Congress. a. To request an award (or an upgrade of an award) under 10 USC 1130, applicants must submit a DA Form 638 (Recommendation for Award). The DA Form 638 should clearly identify the applicant's unit, the period of assignment, and the award being recommended. A narrative of the actions or period for which the applicant is requesting recognition must accompany the DA Form 638. In addition, the award request should be supported by sworn affidavits, eyewitness statements, certificates, and related documents. Corroborating evidence is best provided by commanders, leaders, and fellow Soldiers who had personal (i.e., eyewitness) knowledge of the circumstances and events relative to the request. b. Requests must be submitted through a Member of Congress to the U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his retirement orders should be corrected to add the Silver Star so he can receive a 10% increase in retired pay. 2. Title 10, USC, Subsection 3991a(2), indicates that enlisted members credited with extraordinary heroism may receive an additional 10% in retired pay, provided the member retires after completing 20 or more years of active Federal service. However, this statute is not further qualified by indicating to which awards it applies. Instead, the statute provides the Secretary of each service, in this case the Secretary of the Army, the authority to determine how extraordinary heroism is defined, and states that the Secretary's determination as to extraordinary heroism is conclusive for all purposes. This means the Secretary of the Army has the authority to make the final determination as to which awards apply and how extraordinary heroism is defined by the Army. 3. Army Regulation 600-8-22, paragraph 1-40, defines extraordinary heroism as heroism that merited award the Medal of Honor, Distinguished Service Cross, Navy Cross, Air Force Cross, or the Soldier's Medal or Distinguished Flying Cross (awarded to an enlisted member for non-combat-related heroism) to be qualifying awards. Army Regulation 600-8-22, paragraph 1-40 further shows, the Secretary of the Army's definition of extraordinary heroism is met when the heroism displayed was equivalent to that required for award of the Distinguished Service Cross. 5. Award of the Silver Star does not meet the criteria for a 10% increase in retired pay. A Silver Star recipient would have to have their award upgraded to the Distinguished Service Cross by the Secretary of the Army to qualify for the increase in retired pay. 6. If the applicant feels his Silver Star merits an upgrade to the Distinguished Service Cross, he may request an upgrade of his award under the provisions of 10 USC 1130. If the upgrade is approved, he may be eligible to receive a 10% increase in retired pay. 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) AR20150006089 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006089 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1