RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03772
				INDEX CODE:  107.00
				COUNSEL:  None

				HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His WD AGO Form 53-98, Military Record and Report of Separation Certificate of Service be corrected to reflect award of the Purple Heart (PH), Distinguished Flying Cross (DFC), and the Air Medal (AM) with five Oak Leaf Clusters (OLCs).

_________________________________________________________________

APPLICANT CONTENDS THAT:

His Report of Separation does not reflect the awards he is entitled.  He was a pilot in World War II (WWII) and was involved in heavy combat and was shot down three times and received injuries.  He would like his records corrected to add all the campaign medals, service medals, decorations and PH.

Applicant's complete submission, with attachments, is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s records were apparently destroyed by fire in 1973 at the National Personnel Records Center; therefore, the following information has been complied from the available records and those provided by the applicant.

During the time period in question, the applicant entered active duty on 8 February 1944 and served as a B-17 pilot.  He was honorably discharged in the grade of first lieutenant on 7 June 1945.  His records reflect he had an overseas tour in England from 22 July 1944 to 6 April 1945. In addition, the WD AGO indicates the applicant did not receive any wounds in action.  His WD AGO Form 53-98 reflects he was awarded the AM with one OLC and an Army Overseas Service Bar and the European-African Middle Eastern Ribbon with two stars - Germany and North France.

On 8 January 2004, HQ AFPC/DPPPRA advised the applicant his request did not meet the criteria for award of the PH and requested he provide documentation to support his injuries were incurred as a direct result of enemy action and also the injuries required or received medical treatment by medical personnel.  On 15 April 2004, the applicant withdrew his request for award of the PH.  On 26 April 2004, the applicant provided copies of his available military records.

On 24 June 2004, HQ AFPC/DPPPRA informed the applicant he was entitled to the DFC, American Campaign Medal and WWII Victory Medal.  They further requested he provide copies of the orders awarding the other AMs in order to verify his entitlement to the additional medals.

A DD Form 215 was issued on 12 July 2004, to reflect the award of the DFC, American Campaign Medal, and World War II Victory Medal.

Therefore, the only remaining issue for the Board to consider is the applicant’s request for the four AMs.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPPRA states the applicant was requested to provide copies of the orders awarding the AMs.  The applicant did not provide the requested documentation.  Therefore, they recommend his request for award of four additional AMs be denied.

A complete copy of the Air Force evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 13 August 2004, for review and response.  As of this date, no response has been received by this office.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.	The applicant has exhausted all remedies provided by existing law or regulations.

2.	The application was not timely filed; however, it is in the interest of justice to excuse the failure of timely file.

3.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice regarding the Air Medal issue.  The Board notes the Air Force has verified the applicant’s entitlement to the Distinguished Flying Cross, the American Campaign Medal and World War II Victory Medal and these will be presented to him.  However, with regard to the issue of the additional oak leaf clusters to the Air Medal, the Board agrees with the opinion and recommendation of the Air Force and adopts their rationale as the basis for their conclusion the applicant has not been the victim of an error or injustice.  The Board notes the applicant’s Report of Separation reflects he was awarded the Air Medal with one Oak Leaf Cluster.  He was requested to provide copies of the orders awarding the additional medals and he did not respond.  Therefore without official documentation to support his request for the additional medals, his entitlement to the awards cannot be verified.  In view of the foregoing and in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

4.	With regard to the applicant’s request for award of the Purple Heart, the Board majority took notice of the applicant's request to withdraw this portion of his appeal.  However, the minority member wished to discuss this issue.  It was noted during a bombing mission over Germany the plane the applicant was copiloting received direct hits from enemy fire damaging the plane’s three engines and fuel tanks, thus causing the plane to crash-land in the North Sea.  The applicant contends his face, mouth and right hand were injured as a result of the enemy fire and crash-landing.  However, his WD AGO Form 53-98, Military Record and Report of Separation Certificate of Service, Item 30 reflected he did not receive any wounds in action.  While the Board majority is not unmindful or unappreciative of the applicant’s service to his Nation, in the absence of the evidence substantiating the applicant was injured as a direct result of enemy action, the majority finds no compelling basis to recommend granting award of the Purple Heart.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2003-03772 in Executive Session on 9 September 2004, under the provisions of AFI 36‑2603:

By majority vote, the Board recommended denying award of the Purple Heart.  Mr.   voted to grant correcting the records to award the Purple Heart and has submitted a Minority Report.  The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 18 Aug 03, w/atchs.
	Exhibit B.	Applicant's Available Master Personnel Records.
	Exhibit C.	Letter, HQ AFPC/DPPPR, dated 2 Aug 04.
	Exhibit D.	Letter, SAF/MRBR, dated 13 Aug 04.
	Exhibit E.	Minority Report.

					

DEPARTMENT OF THE AIR FORCE

WASHINGTON DC

OFFICE OF THE ASSISTANT SECRETARY

4 Oct 04

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR 
       CORRECTION OF MILITARY RECORDS (AFBCMR)

FROM: AFBCMR

SUBJECT: AFBCMR Case -  

XXX, the applicant, initially requested award of the Purple Heart on 18 Aug 03. On 8 Jan 04, HQ AFPC told the applicant that his records were destroyed in the National Personnel Records Center fire of 1973 and that, based on Purple Heart Review Board (PHRB) criteria, the justification provided was not sufficient to support award of the Purple Heart. The applicant subsequently withdrew his Purple Heart request on 14 Apr 04. As such, the Board was not required to review the applicant's Purple Heart request. However, after reviewing XXX's application, I recommended XXX be awarded the Purple Heart. The Board majority determined he was not eligible for award of the decoration and denied the request. I respectfully disagree.

In my opinion, awarding the Purple Heart turns on five points. First, does the AFBCMR require government records supporting the applicant's contention? Second, is the AFBCMR bound by Purple Heart review board decisions? Third, should the AFBCMR consider specific PHRB criteria, in and of themselves, a requirement? Fourth, is an eyewitness statement sufficient infonnation to support the award of the Purple Heart? Fifth, was the injury and subsequent medical treatment a result of direct enemy fire?

First, does the AFBCMR require government records supporting the applicant's contention'? No, In accordance with AFI 36-2603. AFBCMR, section 2.3, "The Board normally decides cases on the evidence of the record.. . However, the Board may, in its discretion, hold a hearing or call for additional evidence or opinions in any case." Therefore the Board's reliance on government records is discretionary, not mandatory.

Second, is the AFBCMR bound by Purple Heart review board decisions? No. The AFBCMR is the highest level of administrative review within the Department of the Air Force. Therefore, organizationally, the AFBCMR is not subject to PHRB decisions.

Third, is the applicable PHRB criteria, in and of itself, a requirement the AFBCMR should require? No. The applicable PHRB criteria requires that the applicant provide documentation showing that either medical treatment was received or medical officer attestation that the claimed injury would or should have required medical attention. This criterion essentially tries to establish one of two things - either medical treatment was received as a statement of fact or, in the absence of this statement of fact, that medical treatment should have been required. Did the applicant receive medical treatment? Yes, as attested to by the crew commander. In the absence of medical documentation, would the injury have required medical treatment? Irrelevant. The crew commander established the fact that medical treatment was received.

Fourth, is an eyewitness statement sufficient information to support the award of the Purple Heart? Yes. Among other things, the 1996 Authorization Act lifted time limitations on award reconsiderations if the applicant could provide a written recommendation from someone in the applicant's chain-ofcommand who had first-hand knowledge of the incident. The applicant's crew commander was in the applicant's chain-of-command and had first-hand knowledge of the incident. The crew commander attests that enemy flak damaged the aircraft's gas tanks and that the applicant was injured in the resultant ditching in the North Sea. The crew commander also stated the applicant received medical care.

And fifth, was the injury and subsequent medical treatment a result of direct enemy fire? Yes. The applicant is a former Army Air Corps B-17 co-pilot who was on a bombing mission over Rechlin, Gennany on August 25, 1944. After dropping their bombs, the crew took four direct anti-aircraft hits which damaged three engines and the fuel tanks. The crew commander (the pilot) had two reasonable options - order a bail-out or ditch. The pilot chose to ditch. He ordered the crew to prepare for a crash landing and the plane ditched in the North Sea off the coast of Holland. During the crash landing, the applicant injured his face and mouth and broke a bone in his hand. The applicant was treated in a British hospital for damage to his mouth and hand. It is clear to me the causal reason for ditching was the enemy aircraft fire and, as such, the applicant's injuries were a direct result of this enemy action. It's interesting to note that, had the pilot chosen bail~out and the applicant had been injured in the bail-out, then the PHRB would consider this injury the direct result of enemy action.

In view of the above, I find that the applicant has satisfied his burden to show there has been an error or injustice. Therefore, based on a totality of the evidence presented, I believe the interest of justice can best be served by awarding XXX the Purple Heart. I can be reached at XXX should you have questions.

DEPARTMENT OF THE AIR FORCE WASHINGTON, D.C.

Office of the Assistant Secretary

AFBCMR BC-2003-03772

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
                                        CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT: AFBCMR Application of XXX

I have carefully reviewed the evidence of record and the recommendation of the Board members. A majority found that applicant had not provided sufficient evidence of error or injustice to warrant awarding the Purple Heart (PH) and recommended this portion ofthe application be denied. I concur with their finding and their conclusion that relief is not warranted. Accordingly, I accept their recommendation that applicant's request for the PH be denied.

Please advise the applicant accordingly.