ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  15 July 2019

	DOCKET NUMBER:  AR20170009014


APPLICANT REQUESTS: 10 percent increase in his retired pay by virtue of receiving the Soldier's Medal.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* General Orders Number 3095, dated 23 June 1967
* Orders D80-11, dated 26 April 1982
* DA Form 3713 (Data for Retired Pay)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states he never received the 10-percent increase in retired pay based on his award of the Soldiers Medal.  He was not properly processed.  He received the Soldiers Medal in 1967 and he was retired in 1982.  

3.  The applicant provides General Orders Number 3095, issued by Headquarters, U.S. Army Vietnam, on 23 June 1967, awarding him the Soldiers Medal for heroism not involving actual conflict with an armed enemy in Vietnam, on 2 and 3 March 1967.  The award reads: 

For heroism not involving actual conflict with an armed enemy in the Republic of Vietnam.  [Applicant] distinguished himself by exceptionally valorous actions of 2 and March 1967 immediately following an air attack on the village of Lang Vei and the Special Forces camp nearby.  With complete disregard to his personal safety, [Applicant] went into the burning village to help evacuate the wounded.  Even though there were secondary explosions and the village was still burning all around him, he located the wounded, administered first aid and evacuated them to an emergency aid station.· The villagers were extremely frightened and it was often necessary for him to crawl into the smoke filled underground bunkers and convince them that they should be evacuated.  [Applicant] returned to the village time after time throughout the night and all the next morning until all the wounded were rescued.  He then helped those who survived and assisted in burying the dead.  Through his unrelenting efforts, greater loss of life was prevented and rapport between the villagers and the Special Forces camp has been solidified.  

4.  Review of the applicant’s service records shows: 

	a.  He enlisted in the Regular Army on 9 November 1964.  He served through multiple extensions and/or reenlistments in a variety of assignments. 

	b.  He served in Vietnam from 16 May 1966 to 16 May 1967 and from 10 April 1968 to 28 July 1968.  

	c.  During February 1982, he entered the disability system due to bilateral hearing loss, arthritis, dermatitis, low back pain, and other medical conditions.  His combined disability rating was 40 percent

	d.  He was relieved from assignment and duty because of physical disability effective 10 May 1982 and placed on the retired list in his retired grade of E-8 on 11 May 1982. 

	e.  His DD Form 214 shows he completed 20 years of active service.  It also listed the Soldiers Medal among his awards.

5.  On 21 November 2018, the Army Decorations Board at the U.S. Army Human Resources Command rendered an advisory opinion in his case.  An official stated: 

	a.  This is in response to a request for this office to provide a comprehensive advisory opinion regarding the application for 10% increase in retirement pay based on award of the Soldier's Medal.  The Awards and Decorations Branch recommends that the applicant’s request be denied.  Increased retired pay based on the Soldier's Medal is not automatic, but determined whether the level of heroism is equivalent to an award of the Distinguished Service Cross. 

	b.  On 29 June 1981, Army Military Personnel Center (now Army Human Resources Command) received a request for determination of entitlement to the 10% increase in retired pay.  On 21 August 1981, the Military Awards Branch (now Awards and Decorations Branch) informed him of the Army Decorations Board's determination that the circumstances surrounding his award of the Soldier's Medal do not fulfill the requirements for entitlement to the 10% increase in retirement pay.  There is no justification for overturning the decision made through the Secretary of the Army's Army Decorations Board.
6.  The applicant responded to the advisory opinion on an unknown date via fax.  He stated: 

	a.  During the attack at Lang Vie, it was a fact that they were under attack by two (2) MIG aircraft.  During and after the attack, he and Staff Sergeant (SSG) X__ X__ went into the refugee village to assist the wounded and rescue those who were trapped inside their bunkers.  While they were attending the wounded and trapped, they both came under small arms fire as well as dealing with secondary explosions.  He personally saw and returned fire to several enemy Soldiers killing two. 

	b.  A couple days after the event was over, Air Force Brigadier General X___ came to their camp to assessing the aftermath.  He determined that the aircraft were indeed MIGs but could not openly acknowledge the fact due to international implications.  Due to these facts, which are being submitted and will be verified by SSG X__ X__. 

	c.  He requests that he either receive his Soldiers Medal payments or upgrade his award to the Distinguished Service Cross. 

7.  By law (Title 10, U.S. Code, section 3991), an 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.  

8.  By law and regulation, except for award recommendations submitted in accordance with the provisions of Section 1130, Title 10, U.S. Code, section 1130, each recommendation for an award of a military decoration must be entered administratively into military channels within 2 years of the act, achievement, or service to be honored.  An award recommendation will be considered to have been submitted into military channels when it has been signed by the initiating officer and endorsed by a higher official in the chain of command.  However, pursuant to 10 USC 1130, a Member of Congress can request consideration of a proposal for the award or presentation of decoration (or the upgrading of a decoration), either for an individual or unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy.  Based upon such review, the Secretary of the Army will make a determination as to the merit of approving the award or presentation of the decoration and other determinations necessary to comply with congressional reporting requirements under 10 USC 1130.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined relief is not warranted.  The applicant’s contentions, the advisory opinion, and his rebuttal were carefully considered.  The Board agreed his case was duly considered in accordance with regulatory guidance and public law, and concluded there is insufficient evidence to grant the requested relief.  

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
	 
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.



REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  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. 

3.  Army Regulation 600-8-22 also states, except for award recommendations submitted in accordance with the provisions of Section 1130, Title 10, United States Code (10 USC 1130), which is outlined below, each recommendation for an award of a military decoration must be entered administratively into military channels within 2 years of the act, achievement, or service to be honored.  An award recommendation will be considered to have been submitted into military channels when it has been signed by the initiating officer and endorsed by a higher official in the chain of command. However, pursuant to 10 USC 1130, a Member of Congress can request consideration of a proposal for the award or presentation of decoration (or the upgrading of a decoration), either for an individual or unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy.  Based upon such review, the Secretary of the Army will make a determination as to the merit of approving the award or presentation of the decoration and other determinations necessary to comply with congressional reporting requirements under 10 USC 1130

	a.  Title 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.  In order to request an award under Title 10 USC 1130, you must submit a DA Form 638 (Recommendation for Award), a copy of which is enclosed.  

	b.  The DA Form 638 should clearly identify your unit, the period of assignment, and the award being recommended.  A narrative of the actions or period for which you are requesting recognition must accompany the DA Form 638.  In addition, your 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.

	c.  Title 10 USC 1130 also requires that a request of this nature be referred to the Service Secretary from a Member of Congress.   Therefore, you must submit your request through a Member of Congress who will send it to the United States Army Human Resources Command (HRC), ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170009014


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