RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04672 COUNSEL: NONE HEARING DESIRED: YES ______________________________________________________________ APPLICANT REQUESTS THAT: 1. He be entitled to the Vietnam Service Medal (VSM). (Administratively Corrected) 2. He be entitled to the Air Medal (AM). ________________________________________________________________ APPLICANT CONTENDS THAT: He should be issued the aforementioned awards in recognition of the combat time and missions he served from 1966 through 1969. He has applied for Department of Veterans Affairs benefits which require proof of service in Vietnam. In support of his request the applicant provides a personal statement; copies of his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge; AF Forms 77, Company Grade Officer Effectiveness Report, and various other documents associated with his request. His complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant served in the Regular Air Force from 29 Sep 1963 to 27 Jan 1970. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force. Accordingly, there is no need to recite these facts in this Record of Proceedings. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPAPP recommends that the applicant’s DD Form 214 be corrected to reflect Foreign Service time. DPSID states that they were able to confirm that he served 286 days while temporarily assigned overseas in various locations between 28 Nov 1964 and 16 May 1968 with confirmed boots on the ground in the Republic of Vietnam for one day; 13 Dec 1967. The complete DPAPP evaluation, with attachment, is at Exhibit C. AFPC/DPSID recommends denial of the applicant’s request for entitlement to the AM. DPSID states that the AM may be awarded to any person who, while serving in any capacity with the United States Force, subsequent to 8 Sep 1939, distinguishes himself or herself by meritorious achievement while participating in an aerial flight. The AM may be awarded for combat or non-combat action in recognition of single acts of valor, heroism, or merit while participating in an aerial flight. Additionally, it may be conferred for sustained meritorious achievement (distinction) in the performance of duties involving aerial flight. There is a lack of official documentation verifying he was recommended for and awarded the AM. DPSID states that retroactive awards for retirees/veterans beyond the 2-year time limitation must be submitted in accordance with Title 10, Section 1130, United States Code (10 USC § 1130). DPSID was able to verify his entitlement to the VSM with one Bronze Service Star and the Republic of Vietnam Gallantry Cross with Palm. Upon the final Board decision, administrative correction of his official military personnel record will be completed by AFPC/DPSOR. The complete DPSID evaluation, with attachment, is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 14 Apr 2013, copies of the Air Force evaluations were forwarded to the applicant for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit E). ________________________________________________________________ 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. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice with regard to the applicant’s request for entitlement to the AM. Although the applicant contends that he was not awarded the AM due to clerical reasons, he provides no evidence to support this contention. As such, we find that he has failed to sustain his burden of substantiating the existence of an error or an injustice in his records. Therefore, in view of the above and in the absence of evidence to the contrary, we find no basis to favorably consider this portion of his application. 4. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice to warrant correcting the applicant’s records to reflect Foreign Service. In this respect, we note the OPR was able to confirm that he served 286 days while temporarily assigned overseas in various locations with boots on the ground in Vietnam for one day. Accordingly, we recommend his records be corrected as indicated below. 5. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that the DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, issued in conjunction with his 27 Jun 1976 separation be amended in Item 22c (Foreign and/or Sea Service), to read “0 years, 9 months and 11 days.” ________________________________________________________________ The following members of the Board considered this application in Executive Session on 16 Jul 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the record as reflected. The following documentary evidence pertaining to AFBCMR BC-2012- 04672 was considered: Exhibit A. DD Form 149, dated 3 Oct 2012, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFPC/DPAPP, dated 4 Jan 2013, w/atch. Exhibit D. Letter, AFPC/DPSID, dated 25 Mar 2013, w/atchs. Exhibit E. Letter, SAF/MRBR, dated 14 Apr 2013.