MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 April 2003    
	DOCKET NUMBER:   AR2002078696

	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. Carl W. S. Chun		Director	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Marla J. Troup		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 the effective date of his 10 percent increase in retired pay based upon award of the Soldier's Medal for heroism be changed to 31 October 1973 instead of 20 September 2001.

APPLICANT STATES:  That through no fault of his own, the determination of degree of heroism was not made at the time of award or at the time of his retirement.  In support of his application, he submits a letter and a Memorandum, dated 24 October 2001, from the Military Awards Branch at U.S. Total Army Personnel Command.

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

The applicant entered active duty on 17 September 1953 and retired on 
31 October 1973 with over 20 years of service.  

The applicant received the Soldier's Medal for heroism on 31 December 1966 in Vietnam.

On 20 September 2001, the applicant's request for a 10 percent increase in his retirement pay, based upon his award of the Soldier's Medal for heroism, was forwarded to the Army Decorations Board for consideration.  The Board determined that the degree of heroism met the criteria for increased retired pay.

The Army Decorations Board, acting on behalf of the Secretary of the Army, approved the 10 percent increase in retired pay not to exceed the 75 percent limit on total retired pay to be effective 20 September 2001.  

Paragraph 19e of Army Regulation 672-5-1 (Military Awards), in effect at the time of the applicant’s retirement on 31 October 1973, 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.”  

Paragraph 12-5c of Army Regulation 635-200 (Enlisted Personnel), in effect at the time of the applicant’s retirement on 31 October 1973, 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.”

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.”  Section 3914 refers to the voluntary retirement of Army enlisted members with 20 to 30 years of service.

An Audit of Erroneous Payments for Extraordinary Heroism Audit Report:  MW 85-705, dated 30 September 1985, cites a 16 November 1984 opinion by The Judge Advocate General of the Army.  This legal opinion essentially states that enlisted retirees are not eligible to receive heroism pay prior to the date on which the Army Decorations Board renders a determination that an award of the Soldier's Medal or the Distinguished Flying Cross involved an act of 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.  The applicant received the Soldier's Medal for heroism on 31 December 1966 in Vietnam.

2.  The applicant retired on 31 October 1973 after completing over 20 years of enlisted service without the 10 percent increase based on extraordinary heroism.

3.  On 20 September 2001, the Army Decorations Board determined that the degree of heroism met the criteria for increased retired pay and approved a 
10 percent increase in the applicant's retired pay not to exceed the 75 percent limit on total retired pay.

4.  The Board considered the applicant's request that the effective date of his 
10 percent increase in retired pay be changed to 31 October 1973 instead of 
20 September 2001.  However, a 16 November 1984 legal opinion by The Judge Advocate General of the Army states that enlisted retirees are not eligible to receive heroism pay prior to the date on which the Army Decorations Board renders a determination that an award of the Soldier's Medal or the Distinguished Flying Cross involved an act of extraordinary heroism.  Therefore, there is no basis for granting the applicant's request. 

5.  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 this requirement.

6.  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

FNE____  LE______  MJT_____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002078696	
SUFFIX		
RECON		
DATE BOARDED	20030410	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	136.0600	
2.		
3.		
4.		
5.		
6.