MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            20 January 2000
	DOCKET NUMBER:    AR1999033055

	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.

	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Mr. Gary F. Geraets		Member	
	Ms. Barbara J. Ellis		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:  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.

APPLICANT STATES:  That he was advised that upon retirement he was entitled to a 10 percent increase in his retired pay, in addition to his regular retired pay.  He also states that he recently discovered this oversight and that he is due all back pay and allowances effective 30 June 1980.

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

He entered active duty on 4 September 1959 and continued to serve through a series of continuous reenlistments until he was placed on the United States Retired List effective 1 July 1980 in the pay grade of SFC/E-7.  He completed
20 years, 9 months and 27 days of total creditable service.

Records show the applicant served in Vietnam from 11 August 1966 to 3 August 1967 and from 1 February 1970 to 24 January 1971.

Headquarters, 1st Infantry Division General Orders Number 3351, dated 17 May 1967, awarded the Silver Star for gallantry in action against a hostile force to the applicant.

The applicant’s service personnel records contain a DA Form 3713 (Data for Retired Pay), dated 19 May 1980, which shows in item 34 (Eligible for Increase in Retired Pay Based on Extraordinary Heroism (Para 12-5c, AR 635-200; para 
3-5b, AR 37-104-1; and 10 USC 3991) the entry “NA” in the no block.

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.

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.

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.

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 635-200 (Enlisted Personnel), in effect at the time of the applicant’s retirement on 1 June 1972, 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.

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. 

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.

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.  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”, it is awarded for “gallantry in action”, and it is not one of the awards which qualifies for the 10 percent increase in retired pay.  Therefore, he is
not entitled to a 10 percent increase in his retired pay based on award of the Silver Star and is not entitled to the requested back pay.

2.  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.

3.  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

RGH_____ GFG____  BJE____ DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999033055	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000120	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19990630	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  283		
2.		
3.		
4.		
5.		
6.