RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03312 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. He be issued an Airmen’s Medal (AmM), preferably with his name on it. 2. His AmM awarded in 1962 be determined to have been awarded for extraordinary heroism, qualifying him for a ten percent increase in retirement pay. 3. He be promoted to the grade of Senior Master Sergeant (SMSgt) as of 1976, based upon the five additional weighted points associated with award of the AmM, if his AmM was not considered by his SMSgt promotion board. 4. His DD Form 214, Certificate of Release or Discharge from Active Duty, be updated to reflect award of the AmM. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. He was told in 1962 the medal was in production, but he never received it. He would finally like to have the medal with his name on it. 2. His actions clearly constitute extraordinary heroism. 3. He missed being selected for promotion to SMSgt by four points in about 1976. His AmM was listed on the records check in 1972, but he can’t find any indication it was taken into consideration at the SMSgt promotion board. 4. At his retirement he asked why the AmM was not reflected on his DD Form 214 and was told “not everything is on that form,” but it would all be in his records. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant retired from the Air Force on 31 May 78, and was credited with 22 years, 01 month, and 07 days of total active service. On 15 Jan 13, AFPC/DPSOY determined the applicant’s DD Form 214 was incorrect, and directed it be updated to add the Republic of Vietnam Gallantry Cross with Palm (RVNGC w/P), and to change the Vietnam Service Medal (VSM) to read “Vietnam Service Medal with four Bronze Service Stars (VSM w/4BSS). The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility (OPRs) which are attached at Exhibits C, D and E. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSID does not make a recommendation as to whether or not the applicant’s actions constitute extraordinary heroism, but defers to SAF/MRBP. On 8 May 62, per Special Order G-44, dated 11 May 62, the applicant was awarded the AmM for heroism for his actions on 6 Sep 61. The applicant’s award of the AmM is currently annotated on his DD Form 214, therefore, no update is required. According to the policy in place in 1968, at time of retirement of enlisted members who received an award for extraordinary heroism the Air Force would consider whether the member would receive an additional ten percent increase in retirement pay. In accordance with Air Force Instruction 36- 2803, The Air Force Awards and Decorations Program, medals are only engraved for initial awards made to members posthumously, foreign nationals, and Medal of Honor recipients. Therefore, the applicant is not eligible to receive an engraved medal. A complete copy of the AFPC/DPSID evaluation is at Exhibit C. AFPC/DPSOE recommends denial based upon the late submittal of this application. The application has not been filed within the three-year limitation imposed by AFI 36-2603, Air Force Board of Correction of Military Records, dated 1 Mar 96. In addition to being untimely under the statute of limitations, the applicant’s request may also be dismissed under the equitable doctrine of laches, which denies relief to one who has unreasonably and inexcusably delayed asserting a claim. Laches consists of two elements: inexcusable delay and prejudice to the Air Force resulting there from. In the applicant’s case, he waited almost 34 years after retirement to petition the AFBCMR. The applicant’s unreasonable delay has also caused prejudice to the Air Force as relevant records have been destroyed or are no longer available, memories have faded and witnesses are unavailable. The applicant mentions the medal was listed in his records in 1972. Based on his MSgt date of rank (DOR), he would have been considered for promotion to SMSgt once (cycle 78S8) before retiring 31 May 78. We would be unable to determine if the decoration was used in the promotion process for cycle 78S8 as promotion history files are only maintained for a period of 10 years as outlined in AFR 4-20, Records Disposition Schedule. Ten years is generally considered an adequate period to resolve any promotion inquiries or concerns. Recommend the applicant’s request be denied since the AmM would have been considered by the 78S8 SNCO Evaluation Board since it had been awarded 15 years prior to the board. The applicant also had sufficient time to inquire about this between award of the decoration in 1962 and the meeting of the 78S8 Board in 1977. A complete copy of the AFPC/DPSOE evaluation is at Exhibit D. SAF/MRBP recommends denial indicating there was no evidence of an error or injustice. It is clear from the applicant’s AmM citation he earned the medal for heroism and his voluntary risk of life, and the applicant was appropriately recognized for his heroic action of 6 Sep 61. However, without additional documentation, including the applicant’s commander’s recommendation and witness statements, there is not enough information to determine if the applicant’s actions should be credited with extraordinary heroism. A complete copy of the SAF/MRBP evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 1. On the day the base commander presented the AmM to the applicant, a lieutenant colonel informed him the AmM was new, still in production, and he would receive the medal at a later date. He never received it. 2. The applicant was never informed the Air Force was to make a determination as to whether he acted with extraordinary heroism, and never informed that upon such a determination he would be entitled to a ten percent increase in retirement compensation. It is clear that no such consideration was ever made. The advisory opinion even acknowledges that “it appears more likely that the applicant was not considered for the additional ten percent upon retirement.” However, the evidence is more than sufficient to find the applicant acted with extraordinary heroism in the voluntary risk of his own life that saved the lives of other servicemen. 3. When the applicant missed the promotion by four points, he immediately questioned his superiors about whether his AmM points were counted, but his superiors were not interested in looking into the issue and repeatedly brushed off his inquiries telling him the points were likely counted. In all reasonable probability, sometime between 1964 and 1968, the Air Force lost track of the applicant’s record of medals and awards. Because his DD Form 214 incorrectly excluded his AmM (as well as the two medals he received for his service in Vietnam) at the time of his promotion, in all reasonable probability, the Air Force did not include the five weighted AmM points he should have received when he was denied promotion by four points. 4. When he received his DD Form 214 upon retirement, he immediately asked the airman who provided him the form why his AmM was not on the form. The airman replied “not all awards are listed on the DD Form 214,” and he should not be concerned about the fact the AmM was not on the form. The Air Force advisories seem to conclude the applicant’s AmM was listed on this 1964 DD Form 214 and, therefore, does not need updating. In fact, there is no indication the applicant’s AmM was listed on any DD Form 214 after 1964, including 1968, 1972, 1976, and 1978. Accordingly, his final DD Form 214 does in fact need to be updated. The applicant’s request should not be barred by the statute of limitations or doctrine of laches as he only recently discovered the falsity of the airman’s representation that not all awards are listed on his DD Form 214. Until he conducted an investigation in Jul 12 he did not discover the Air Force incorrectly excluded his AmM from his DD Form 214. A complete copy of the applicant’s response is at Exhibit G. ________________________________________________________________ FINDINGS AND CONCLUSIONS OF THE BOARD: After careful consideration of the applicant’s request and the evidence of record, to include the evidence the applicant submitted through counsel in rebuttal to the Air Force advisories, we find the application untimely. The applicant did not file within three years after the alleged error or injustice was discovered as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603. The applicant has not shown a sufficient reason for the delay in filing. While we note the applicant’s contention that he only became aware of the applicable extraordinary heroism policy in 2012, that policy was in place as far back as 1968, and was clearly discoverable over the intervening 34 years prior to his application. In addition, the Board notes that promotion records are only maintained for a period of ten years after a promotion board, therefore, it is no longer possible to verify the applicant’s contention that his Airman’s medal was not properly utilized during a promotion board in 1978. We are also not persuaded the record raises issues of error or injustice which require resolution on the merits since under the procedures in place at the time of the applicant’s service, awards and decorations were only reflected on the initial DD Form 214 after award and were not reflected on subsequent DD Form 214s. Thus, we cannot conclude it would be in the interest of justice to excuse applicant’s failure to file in a timely manner. ________________________________________________________________ DECISION OF THE BOARD: The application was not timely filed and it would not be in the interest of justice to waive the untimeliness. It is the decision of the Board, therefore, to reject the application as untimely. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-03312 in Executive Session on 14 May 13, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 26 Jul 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSID, dated 15 Jan 13. Exhibit D. Letter, AFPC/DPSOE, dated 15 Feb 13. Exhibit E. Letter, SAF/MRBP, dated 13 Mar 13. Exhibit F. SAF/MRBR, dated 15 Mar 13. Exhibit G. Letter, Applicant, dated 12 Apr 13. Panel Chair