RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03057 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, be corrected to reflect award of the Bronze Star Medal with Valor (BSM w/V). ________________________________________________________________ APPLICANT CONTENDS THAT: His records should reflect the BSMw/V device that he was previously awarded. 1. In December 1965, he was a member of the USAF Combat Control Team (CCT) attached to the 1st Air Cavalry in Vietnam (VN) working on a Tactical Air Control Party (TACP). He and a captain in his unit accompanied the 1st of the 8th Cavalry on a search and destroy mission just 7 clicks out of Bong Son Special Forces Camp. Three days into the operation while preparing to return to base camp, a short round from an artillery unit near the Bong Son Special Forces Camp, landed about 15 feet to his right. As a result, the cavalry’s entire artillery fire support team was lost and he sustained multiple missile wounds throughout his body. 2. Following transport to a field hospital, a short stay at Qui Non, VN and a few weeks at Clark Air Base (AB), Philippines, he arrived at Brooke Army Medical Center in San Antonio, Texas in January 1966. He spent a year and a half there recovering from his wounds. 3. Early in 1967, while awaiting medical board action, he was evaluated and approved to receive the Bronze Star. He has the paperwork in his records. In June 1967 he was retired from the Air Force with no mention of the award. There was no information on whether the award was approved or denied. He feels that either the paperwork was never submitted or it was submitted and slipped through the cracks and failed to reach him before he retired. 4. He has a signed letter from his former commander, dated 17 February 1967, stating he was eligible for award of the BSM and approval was recommended. He has excerpts from a book titled, CCT the Eye of the Storm, detailing some of the actions undertaken by himself and others from his unit. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Regular Air Force who served from 29 January 1960 to 6 June 1967. He was permanently retired from active duty for physical disability with an honorable characterization of service and was credited with 7 years, 4 months and 8 days of active duty service of which, 5 months and 1 day were credited as Foreign and/or Sea Service. The Bronze Star Medal is awarded to a person in any branch of the military service who, while serving in any capacity with the Armed Forces of the United States after 6 December 1941, shall have distinguished himself by heroic or meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy. The award recognizes acts of heroism performed in ground combat if they are of lesser degree than that required for the Silver Star. It also recognizes single acts of merit and meritorious service if the achievement or service is of a lesser degree than that deemed worthy of the Legion of Merit; but such service must have been accomplished with distinction. ________________________________________________________________ AIR FORCE EVALUATION: HQ AFPC/DPSID recommends denial. DPSID states after a thorough review of the applicant's official military personnel record they were unable to locate a special order awarding the Bronze Star Medal. They located a memorandum dated 17 February 1967, signed by the commander of Headquarters 516th Troop Carrier Squadron, Dyess Air Force Base, TX, stating the applicant was eligible for the Bronze Star Medal, and recommended approval as well as an AF Form 642, Recommendation for Decoration, dated 27 February 1967. However, there was no additional documentation to verify the applicant was approved for the award of the Bronze Star Medal. Retroactive recommendations for awards for retirees and veterans beyond the 2-year time limitation must be submitted in accordance with Title 10, Section 1130, United States Code. The National Defense Authorization Act of FY96 passed Title 10, Section 1130, United States Code. The Law allows for the submission of award recommendations (and the upgrading of previously approved awards) without regard to any previously imposed time constraints for submission if referred by a Member of Congress. Under the provisions of this law requests must be referred to the Secretary of the Air Force by a Member of Congress through the Secretary of the Air Force Liaison office (SAF/LL). Additionally, the burden and costs for researching and assembling documentation to support award recommendations rest with the requester. Once received, a determination will be made as to the merit of approving the award or decoration or any other determination necessary to comply with the provisions of the statute. Based on their review of the applicant's official military personnel record, they were able to determine that the below Air Force Medals and/or Ribbons should have been awarded during the applicant's service from 29 January 1960 to 6 June 1967 and were not reflected in his records. Upon final Board decision, administrative correction of the applicant's official military personnel record will be completed by AFPC/DPSOY: a. Air Force Outstanding Unit Award with V and one Bronze Oak Leaf Cluster(AFOUA w/V & IBOLC) b. Good Conduct Medal (GCM) c. National Defense Service Medal (NDSM) d. Air Force Longevity Service Award e. Vietnam Campaign Medal (VCM) f. Republic of Vietnam Gallantry Cross with Palm (RVNGC w/P) The complete DPSID evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 11 October 2012, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit D). To date, a response has not been received. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. We note the OPR advisory comments concerning the requirements of Title 10, United States Code, Section 1130 (10 U.S.C. § 1130), enacted as part of the Fiscal Year 1996 National Defense Authorization Act. However, we do not agree that such avenues must be first exhausted prior to seeking relief under the provisions of 10 U.S.C. § 1552. The relief offered under 10 U.S.C. § 1130 is a statutory remedy, not administrative relief. Therefore, principles of administrative law requiring exhaustion of administrative remedies are inapplicable here. Moreover, as previously noted by this Board in decisions concerning this issue, 10 U.S.C. § 1130 clearly states that, “Upon request of a member of Congress…the Secretary shall make a determination as to the merits of approving the award…” – however, it does not require that an applicant must do so prior to submitting a request under the provisions of 10 U.S.C. § 1552. Finally, we find the OPR's interpretation of 10 U.S.C. § 1130 contradicts the very intent of Congress in establishing service correction boards 65 years ago, i.e., to remove their required involvement and avoid the continued use of private relief bills, in order to affect such corrections to military records. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice. After a thorough review of the evidence of record and the applicant’s complete submission, we are persuaded that relief is warranted. In this respect, we note the applicant has provided documentation substantiating that while a patient at Brooke General Hospital, at Ft. Sam Houston, Texas, he was recommended for award of the BSM for actions while a Combat Control Team (CCT) member of the Tactical Air Control Party (TACP) in support of the 1st Calvary Division in Vietnam in December 1965 and that his wing commander recommended approval of the recommendation. We also note the evidence indicates the applicant was critically wounded on the close-out date of the BSM, i.e., 19 December 1965, as a direct result of enemy action and spent the next year and a half recovering from his wounds, until his permanent disability retirement at Brooke General Hospital. We also recognize the recommendation was submitted approximately three months prior to his disability retirement. In view of this and noting the applicant’s actions during the period under review, we find substantial evidence supports the decoration recommendation was approved but was never recorded on his DD Form 214 due to loss or inadvertence. We find this further evidenced by the fact the OPR was able to confirm that six other awards/medal to which the applicant was entitled, were also omitted from his DD Form 214. Although the BSM recommendation, which was submitted by the Air Force Liaison Officer and Commander at Brooke General Hospital, was based on meritorious service covering a period of just over 90 days, in view of the applicant’s combat service during this period, as evidenced by his entitlement to the AFOUA w/V & 1 OLC and the RVNGC w/palm, we find that had the BSM recommendation been submitted by his commander in RVN, it would have been submitted based on heroism. Therefore, we recommend his DD Form 214 be amended to add the BSM, with V device. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that Item 24, Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized, of the DD Form 214, Certificate of Discharge or Release From Active Duty, issued in conjunction with his 6 June 1967 retirement, be amended to include the Bronze Star Medal with Valor. ________________________________________________________________ The following members of the Board considered this application in Executive Session on 21 March 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-03057 was considered: Exhibit A. DD Form 149, dated 9 July 2012, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSID, dated 24 December 2012. Exhibit D. Letter, SAF/MRBR, dated 11 October 2012.