RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04209 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. He be awarded the Distinguished Flying Cross (DFC). 2. He be awarded the DFC with one oak leaf cluster. 3. He be awarded the Air Medal with five oak leaf clusters (AM w/5OLC). ________________________________________________________________ APPLICANT CONTENDS THAT: The Air Force neglected to award these decorations to him upon his discharge. Based on the Eighth Air Force policy of awarding the DFC upon the completion of a tour of combat missions, and upon the completion of every additional 10 lead crew missions, he should be awarded the DFC for his completion of a tour of combat missions and for completing 14 lead missions. Since it was also Eighth Air Force policy of awarding an AM upon the completion of every five heavy bomber missions, he was awarded the AM and four OLCs for flying his first 25 combat missions. However, he never received an additional OLC for his 26th through 30th combat missions while assigned to the 44th Bombardment Group. Counsel cites a previous case where the AFBCMR awarded the DFC to an applicant for completion of a minimum of 10 lead or deputy lead combat missions and an OLC to the DFC for every 10 successive lead missions completed (AFBCMR BC-2005-02255). In support of his appeal, the applicant provides a statement of counsel and copies of his WD AGO 53-55, Enlisted Record and Report of Separation Honorable Discharge, power of attorney and discharge certificate. The applicant’s complete submission, with attachments, is at Exhibit A. _________________ ______________________________________________ STATEMENT OF FACTS: On 20 Nov 43, the applicant enlisted in the Army Air Corps as an aerial gunner. On 5 Oct 45, he was honorably discharged from the Army of the United States. He was credited with 1 year, 2 months and 25 days of total active service with 7 months and 21 days of Foreign Service. According to AFPC/DPSID, they were able to verify the applicant’s award of the AM w/4OLCs; however, they were unable to locate a special order awarding the AM w/5OLCs. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are attached at Exhibits B and C. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSID states the Board needs to make a determination based on the merits of the case and evidentiary documentation. DPSID states that in accordance with (IAW) Title 10, United States Code (USC) 1130, the applicant’s counsel provided a signed recommendation from someone in the applicant’s former chain of command and proposed citations; however, the request was not submitted through a Member of Congress. The complete DPSID evaluation is at Exhibit B. SAF/MRBP recommends denial of the applicant’s request for award of the DFC, DFC w/OLC and AM w/5OLCs due to a lack of supporting evidence of the applicant’s extraordinary achievement. Further, there is a lack of source documents to verify the applicant’s flights and credits he may have earned for a number of missions. MRBP states that a witness statement from Lieutenant Col K------ -- and an affidavit from Lt Col M----- were not provided, nor was the policy on sortie credit for lead missions during this period. In addition, flight orders, aeronautical orders, and flight records were not provided. The complete MRBP evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 16 Jul 13, for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. We note the comments of AFPC/DPSID concerning the requirements of Title 10, USC 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 previous 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 office of primary responsibilities (OPRs) 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 effect 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. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After thoroughly reviewing the evidence of record and noting the applicant’s contentions, we find no basis to disturb the record. While the applicant’s counsel asserts, in essence that his appeal is similar to AFBCMR 2005-02255 and that relief is warranted using the same rationale for the DFC; we disagree. In this regard, every case before this Board is considered on its own merit since the circumstances of each case are seldom identical. In view of this, although we strive for consistency, we are not bound by precedent and evaluate the merits of each individual case to determine whether the applicant has been the victim of an error or injustice. As noted by SAF/MRBP, there is a lack of evidence of the applicant’s extraordinary achievement and source documents to verify any flights and credits he may earned. As such, we do not find the case he references supports his request for a DFC, an additional OLC to the DFC or the AM w/ 5 OLCs. The personal sacrifice the member endured for his country is noted, and our recommendation to deny the requested relief in no way diminishes the high regard we have for his service; however, based on the totality of the evidence presented, we are not persuaded the applicant has met his burden of establishing an error or injustice has occurred. Therefore, we agree with the opinion and recommendation of SAF/MRBP and adopt the rationale expressed as the basis for our conclusion the applicant has not been the victim of an error or injustice. In view of the above and in the absence of evidence to the contrary, we find no basis to recommend the relief sought in this application. ________________________________________________________________ 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-2012-04209 in Executive Session on 17 Sep 13, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 19 Aug 12, w/atchs. Exhibit B. Letter, AFPC/DPSID, dated 25 Jan 13 Exhibit C. Letter, SAF/MRBP, dated 15 Jul 13. Exhibit D. Letter, SAF/MRBR, 16 Jul 13.