IN THE CASE OF: BOARD DATE: 4 February 2016 DOCKET NUMBER: AR20150008173 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 reconsideration of his request for a 10 percent increase in his retired pay by virtue of receiving the Soldier's Medal. 2. The applicant states: * he was awarded the Soldier's Medal which should add 10 percent to his retired pay * he is disabled for life due to his legs being broken and permanently scarred from the incident in Germany on 12 January 1964 * this [incident] was worse than Vietnam 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Army Board for Correction of Military Records (ABCMR) Record of Proceedings, Docket Number 20100024862 * General Orders (GO) Number 127, awarding him the Army Commendation Medal 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 AR20100024862, on 4 November 2010. 2. The applicant does not meet the two-tiered criteria for reconsideration in that his request was neither received within 1 year of the original Board's decision nor contains any new evidence. However: a. His original application was denied by the Board on 4 November 2010. He submitted a request for reconsideration within 1 year of the original decision but his application was mixed up with another application and was inadvertently closed via an administrative letter. b. Although his previous request for reconsideration did not contain any new evidence, he was erroneously denied the opportunity of a second review. Despite the absence of any new evidence, as an exception to policy, his request will be reconsidered by the Board. 3. The applicant enlisted in the Regular Army on 11 August 1959 and held an armor military specialty. He served through multiple reenlistments in a variety of stateside or overseas assignments and he was advanced to sergeant first class (SFC)/E-7. 4. On 23 July 1965, Headquarters, 3rd Armored Division, Germany, published GO Number 127 awarding him the Army Commendation Medal for distinguishing himself on 12 January 1964 while assigned to Company A, 1st Battalion, 33rd Armor. The GO cited the following action: While performing duty as a relief commander, 2nd Brigade Guard, [Applicant] noticed a M113 personnel carrier crash through Gate # 2 of Coleman Kaserne and head east. Immediately, and without regard for his own safety, [Applicant] mounted a quarter ton, and with his driver gave chase. As the personnel carrier reached downtown Gelnhausen, [Applicant] overtook it, drew his pistol and ordered the driver to halt. Instead he swerved sharply to the left and rammed the jeep. He then backed up and struck the jeep again, inflicting severe laceration to [Applicant's] right leg and fracturing his left leg. [Applicant], realizing the danger to civilians which the rampant personnel carrier represented, acted unhesitatingly and displayed great courage. The delay caused by [Applicant's] effort resulted in the driver's capture a few kilometers beyond d Gelnhausen with no further injury to personnel or destruction to property. [Applicant] acted automatically to protect the lives and property of others, completely disregarding the hazard to himself. Action such as this serves as an indication of [Applicant's] professionalism, decisiveness, and high degree of devotion to duty. [Applicant's] heroic action in the face of extreme danger is worthy of immolation and reflects great credit upon himself and the United States Army. 5. On 29 April 1965, letter, the Adjutant General, Headquarters, Department of the Army (DA), notified the Commanding General, Fort Hood, TX that the Soldier's Medal had been awarded to the applicant and that announcement of this award would appear in DAGO. As such, the award of the Army Commendation Medal was announced in GO Number 127 would be suspended when the award of the Soldier's Medal is announced. A citation for award of the Soldier's Medal reads the same as that for the Army Commendation Medal. Headquarters, DAGO Number 27, dated 13 August 1965 awarded him the Soldier's Medal. The orders read: [Applicant], Armor (then Specialist Five) , United States Army, as a member of Company A, 1st Battalion, 33d Armor, United States Forces, distinguished himself by heroism in Germany, on 12 January 1964. When [Applicant] observed an M113 personnel carrier crash through a gate of the installation, he and a driver of a jeep immediately participated in a chase to recover the vehicle and apprehend the driver. As he overtook the carrier in a populated area and ordered the berserk driver to halt, the driver responded by swerving the carrier and crashing it into the jeep, inflicting severe lacerations on [Applicant's] right leg and fracturing his left one. The delay caused by [Applicant's] courageous efforts resulted in the capture of the driver a few kilometers beyond the town and the recovery of the carrier. Through his prompt action and complete disregard for his own personal safety in this emergency situation, [Applicant] averted further damage to government property and the possible loss of life to the people of the local community. His heroic conduct is in the highest traditions of the United States Army and reflects great credit upon himself and the military service. 6. On 11 January 1979, a medical evaluation board (MEB) considered his records and determined he had a medical condition that failed retention standards (manic depression). The MEB referred him to a physical evaluation board (PEB). As such, on 30 January 1980, a PEB convened and found his condition unfitting. The PEB rated his condition and recommended his permanent retirement. 7. He retired by reason of disability on 2 April 1980 and he was placed on the Retired List in his retired rank/grade of SFC/E-7 on 3 April 1980 in accordance with section 3914, Title 10, U.S. Code. His retirement DD Form 214 (Certificate of Release or Discharge from Active Duty) listed the Soldier's Medal among his awards. 8. On 14 December 1983, by letter, the applicant was informed that the Army Decorations Board considered his case years earlier and determined that his actions on 12 January 1964 did not constitute extraordinary heroism. Therefore, he was not eligible for an increase in his retired pay. The letter also advised him that the records indicated he had been advised of this decision on at least three separate occasions. 9. On 4 November 2010, the ABCMR considered his case and reached a similar conclusion that his action did not rise to the heroism level required for award of the Distinguished Service Cross and he was not eligible for an increase in his retired pay. 10. Title 10, U.S. Code, section 3991, states that 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 (but not more than 75 percent of the retired pay base upon which the computation of such retired pay is based). 11. Army Regulation 600-8-22 (Military Awards) provides Department of the Army policy, criteria, and administrative instructions concerning individual military decorations, service medals and ribbons, combat and special skill badges and tabs, unit decorations, and trophies and similar devices awarded in recognition of accomplishments. a. Paragraph 1-40 (Increased Retired Pay Based on Decoration – Enlisted Awardees) states that Title 10, U.S. Code, section 3991, provides that any enlisted member who is credited with extraordinary heroism in the line of duty who retires after 20 or more years active Federal service is entitled to a 10-percent increase in retired pay, subject to the 75-percent limit on total retired pay. Any awardee of the Medal of Honor, 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. 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 an enlisted status. b. Chapter 3 (U.S. Army Individual Decorations) states U.S. Army military decorations are awarded in recognition of heroism, meritorious achievement, or meritorious service. The glossary defines a "decoration" as a distinctively designed mark of honor denoting heroism or meritorious/outstanding service/achievement for individuals and units. c. Section II (Terms) defines "extraordinary heroism" as an act or acts of heroism or gallantry involving the risk of life – minimum level of valorous performance in combat consistent with a recommendation for the Distinguished Service Cross. d. Section II defines "heroism" as extreme courage demonstrated in attaining a noble end. Varying levels of documented heroic actions are necessary to substantiate recommendations for the Bronze Star Medal with "V "Device, Air Medal with "V" Device, and Army Commendation Medal with "V" Device. The phrase "in connection with military operations against an armed enemy" covers all military operations including combat, support, and supply which have a direct bearing on the outcome of an engagement or engagements against armed opposition. DISCUSSION AND CONCLUSIONS: 1. On 12 January 1965, a rogue personnel carrier crashed through a gate at Coleman Barracks in Germany. The applicant displayed courage in mounting a jeep and giving chase. The perpetrator swerved the personnel carrier and rammed the jeep, injuring the applicant. The applicant's courageous actions prevented danger to personnel and property. 2. He was awarded an interim award of the Army Commendation Medal for his actions. The award was then suspended and replaced with the award of the Soldier's Medal to recognize the applicant for his heroic action in the face of extreme danger. 3. He retired on 2 April 1980 by reason of disability. His DD Form 214 captured the Soldier's Medal. Following his retirement, he communicated multiple times with the Army Decorations Board and was advised that the Army Decorations Board considered his case years earlier and determined that his actions on 12 January 1964 did not constitute extraordinary heroism. He was not eligible for an increase in his retired pay. This Board also considered his actions on 12 January 1965 and reached a similar conclusion. 4. An enlisted awardee of 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. In this context, "extraordinary heroism" is defined as an act of heroism or gallantry involving the risk of life – minimum level of valorous performance in combat consistent with a recommendation for the Distinguished Service Cross. 5. The Distinguished Service Cross is awarded to a person who, while serving in any capacity with the Army, distinguished himself/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. 6. The applicant's action on 12 January 1965 did not rise to the level required for award of the Distinguished Service Cross. 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 AR Number AR20100024862, on 4 November 2010. _______ _ _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) AR20150008173 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150008173 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1