IN THE CASE OF: BOARD DATE: 23 October 2014 DOCKET NUMBER: AR20140004834 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, the daughter of a deceased former service member (FSM), requests reconsideration of her previous request for a 10 percent (%) increase of his retired pay for being the recipient of the Soldier's Medal. 2. The applicant states: a. The Army Board for Correction of Military Records (ABCMR) denied her request for a 10% increase in the FSM's retired pay for being the recipient of the Soldier's Medal. The ABCMR Record of Proceedings (ROP) stated that several other individuals, even though not successful, also risked their lives in attempting the rescue. The Board concluded that her father's acts did not set him apart from his comrades to the degree of the Distinguished Service Cross since others risked their lives. The regulation of the Distinguished Service Cross states the act must have been so notable as to set the individual apart from their comrades. b. She does not agree with the ABCMR's determination for two reasons: (1) First, the Board's logic is flawed in itself, as its own regulation to award the Soldier's Medal in the first place requires that the same degree of heroism required as that of award of the Distinguished Flying Cross. The regulation states for award of the Distinguished Flying Cross the act must clearly set the individual apart from his or her comrades or from other persons in similar circumstances. By definition of receiving the Soldier's Medal her father's actions did set him apart from his comrades. Someone already made that determination in 1971 and for that reason awarded him the Soldier's Medal and per the regulation it is a fact. The Board cannot use that same logic to negate the benefits of the award. By means of definition of the award he did set himself apart. (2) Second, the Board only used half of the information to make their determination. The Board rebutted that several others also attempted in the rescue. How can her father be compared as equal to those several other individuals who attempted rescue while they were in danger of drowning in that same heavy surf themselves? After their lives also became in danger, her father directed and restrained the crowd on the beach, organized the rescue, and aided several drowning individuals to shore. It is true that none of them were able to save Donald Vxxxn that day; however, more would have been lost if not for the actions of her father. That did set him apart. 3. The applicant provides of the following: * General Orders (GO) Number 12460 * regulatory guidance for award of the Distinguished Service Cross, Distinguished Flying Cross, and Soldier's Medal * ABCMR ROP CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130006206 on 2 January 2014. 2. The applicant provided copies of documents previously consideration by the Board. She also provided new argument that will be considered by the Board. 3. The FSM enlisted in the Regular Army on 10 March 1964. He served in Vietnam from 10 August 1971 through 18 April 1972. 4. GO Number 12460, issued by Headquarters, 23rd Infantry Division, on 6 November 1971, awarded him the Soldier's Medal for heroism not involving actual conflict with an armed enemy in Vietnam on 28 October 1971. The orders stated: Staff Sergeant [FSM] distinguished himself by valorous actions on 28 October 1971, while serving as a medical aidman with Headquarters and Headquarters Company, 26th Engineer Battalion. On that date, several individuals who had attempted to rescue a person drowning in the heavy surf off the coast of Chu Lai were also in danger of drowning themselves. He directed and restrained the crowd on the beach and helped to organize the rescue efforts. He endangered his own life in his attempts to aid the drowning individuals, and through his efforts, several of the individuals were helped to shore. Through his timely and courageous actions, Staff Sergeant [FSM] undoubtedly saved the lives of several individuals. Staff Sergeant [FSM's] personal heroism, professional competence, and devotion to duty are in keeping with the highest traditions of the military service and reflect great credit upon himself, the 23rd Infantry Division, and the United States Army. 5. A DA Form 2339 (Application for Voluntary Retirement), dated 19 May 1986, prepared for the FSM does not show an "X" in the Soldier's Medal block. 6. In a Determination of Extraordinary Heroism memorandum, dated 3 June 1986, the Assistant Adjutant General, Letterman Army Medical Center, forwarded the FSM's award of the Soldier's Medal to the Military Personnel Center for verification and determination of extraordinary heroism and subsequent increase of retired pay. He recommended approval for a 10% increase in retired pay. 7. The FSM served continuously on active duty as a medical noncommissioned officer through several reenlistments until he was honorably retired on 31 August 1986. His DD Form 214 lists several awards to include the Soldier's Medal. 8. On 23 February 2000, the Chief, Military Awards Branch, U.S. Total Army Personnel Command, advised the FSM that the award recommendation was forwarded for consideration by the Army Decorations Board which convened on 10 February 2000. The Army Decorations Board considered entitlement to increased retired pay based on award of the Soldier's Medal. The award of the Soldier's Medal and the documents provided, however, did not substantiate a 10% increase in retirement pay so the board disapproved the request. Although the reply was not favorable, he should be extremely proud of his dedicated service to the Nation. 9. The FSM died on 23 November 2011. 10. On 2 January 2014, in response to her request for correction of her father's DA Form 2339 to show an "X" in the Soldier's Medal block and a 10% increase in his retired pay for being the recipient of the Soldier's Medal, the ABCMR concluded there was insufficient evidence on which to base granting her request for a 10% increase in the FSM's retired pay. The ABCMR recommended the following: * correction of item 13 of the FSM's DA Form 2339 to show he received the Soldier's Medal * denial of so much of the application that pertained to a 10% increase in his retired pay for being a recipient of the Soldier's Medal 11. On 3 February 2014, a certificate was furnished to the applicant amending item 13 of the FSM's DA Form 2339 to show he received the Soldier's Medal. 12. Army Regulation 600-8-22 (Military Awards) states in: a. Paragraph 1-40 - Title 10, U.S. Code, section 3991, provides that any enlisted member who is credited with extraordinary heroism in 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 awardee of the Medal of Honor, the Distinguished Service Cross, Navy Cross, or Air Force Cross satisfies the requirement for extraordinary heroism. An enlisted awardee of the Distinguished Flying Cross awarded for non-combat-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. b. Paragraph 3-9 - 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 not justifying the award of a Medal of Honor; while engaged in an action against an enemy of the United States; while engaged in military operations involving conflict with an opposing or foreign force; or while serving with friendly foreign forces engaged in an armed conflict against an opposing Armed Force in which the United States is not a belligerent party. 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 their comrades. c. Paragraph 3-13 - 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. d. Paragraph 3-14 - The Soldier’s Medal is awarded to any person of the Armed Forces of the United States who, while serving in any capacity with the Army of the United States at the time of the heroic act, who distinguished himself or herself by heroism not involving actual conflict with an enemy. The same degree of heroism is required as that of the 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. Awards will not be made solely on the basis of having saved a life. DISCUSSION AND CONCLUSIONS: 1. The applicant's contentions were carefully considered. 2. By regulation, for award of the Distinguished Flying Cross and Soldier's Medal, 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. However, for the 10% increase in retired pay, the extraordinary heroism must be equivalent to that required of the Distinguished Service Cross (i.e., involved a risk of life so extraordinary). 3. The FSM's orders for the Soldier's Medal stated several individuals who had attempted to rescue a person drowning in the heavy surf off the coast of Chu Lai were also in danger of drowning themselves. He endangered his own life in his attempts to aid the drowning individuals, and through his efforts, several of the individuals were helped to shore. Through his timely and courageous actions, the FSM undoubtedly saved the lives of several individuals. Unfortunately, the FSM's actions did not rise to the level of heroism required for award of the Distinguished Service Cross and did not clearly set him apart from those several other individuals who also risked their lives in attempting to rescue a person prior to the FSM rescuing them. 4. In the absence of evidence that conclusively shows the FSM's actions notable set him apart from the other individuals, there is insufficient evidence to support granting the applicant the requested relief. 5. In making this determination, the applicant and all others concerned should know that this nation in no way diminishes the sacrifices made by the FSM in service to our Nation. The applicant and all Americans should be justifiably proud of his service in arms. 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 to amend the decision of the ABCMR set forth in Docket Number AR20130006206, dated 2 January 2014. _______ _ _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) AR20140004834 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140004834 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1