RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04968 COUNSEL: NONE HEARING DESIRED: NOT INDICATED ________________________________________________________________ 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 Silver Star and Presidential Unit Citation (PUC). ________________________________________________________________ APPLICANT CONTENDS THAT: He never received his Silver Star. Additionally, the PUC and the Republic of Vietnam Gallantry Cross with Palm (RVNGC w/P) never made it to his records. The Silver Star and RVNGC w/P were awarded approximately 5 March 1970, about the same time he stopped writing in his journal. His base was overrun shortly after his departure and some of his records were supposed to follow. However, it took 42 years to find his records. They were finally located in Honolulu, Hawaii. In support of his request the applicant submitted pictures of his RVNGC w/P award, correspondence from the National Personnel Records Center (NPRC), and a National Archives and Records Administration (NA) Form 13059, Transmittal of and/or Entitlement to Awards. 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 1 July 1966 to 3 June 1970. He was released from active duty with an honorable characterization of service and was credited with 3 years, 11 months, and 3 days of active duty service, of which, 1 year and 2 days were credited as Foreign Service. ________________________________________________________________ AIR FORCE EVALUATION: 1. HQ AFPC/DPSID recommends denial. DPSID states there is no documentation to verify any of the applicant's assigned units were awarded the Presidential Unit Citation. Additionally, official documentation verifying the applicant was recommended for and awarded the Silver Star could not be located. 2. The Presidential Unit Citation is conferred on units of the Armed Forces of the United States and of cobelligerent nations, for extraordinary heroism in action against an armed enemy on or after 7 December 1941. The unit must display such gallantry, determination, and esprit de corps in accomplishing its mission as to set it apart from and above other units participating in the same campaign. 3. The applicant served as a Controller in the Air Traffic Regulation Center with the 1879th Communications Squadron, Detachment 1, Ban-Me-Thuot, Vietnam, from 1 June 1969 to 1 June 1970. They have been unable to locate any official documentation verifying he served with a unit that received award of the Presidential Unit Citation; therefore, rendering the applicant ineligible for this award. 4. The Silver Star may be awarded to any individual while serving in any capacity with the United States Armed Forces, who distinguishes himself or herself by gallantry in action under any of the following circumstances: a. While engaged in an action against an enemy of the United States. b. While engaged in military operations involving conflict with an opposing foreign force. c. While serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which is not a belligerent party. The required gallantry, while of a lesser degree than that required for award of the Air Force Cross, must nevertheless have been performed with marked distinction. 5. They were unable to verify the award of the Silver Star as there is no documentation in the applicant's official military personnel record indicating the applicant was recommended or awarded the Silver Star. 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. 6. Based on their review of the applicant's official military personnel record, they were able to determine the below Air Force Medals should have been awarded during the applicant's service from 1 July 1966 to 3 June 1970 and were not reflected in his record: a. Vietnam Service Medal with four Bronze Service Stars (VSM w/4 BSS). b. Republic of Vietnam Gallantry Cross with Palm (RVNGC w/P) The complete AFPC/DPSID evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In his response, the applicant highlights significant events that occurred during his tour of duty in Ban-Me-Thuot, Vietnam. He recalls a visit by, then, General XXXX who came to say “good job” for their radio and photo lab operations. Additionally, he describes an early morning enemy attack and his efforts to climb a steep, exposed, concrete staircase to the gun tower while helping his wounded cohorts and dodging a barrage of mortar, small arms fire and 122 rockets. The applicant’s complete response, with attachment, is at 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 award of the Silver Star and Presidential Unit Citation. We took notice of the applicant's complete submission, to include his rebuttal response, in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that relief beyond that already granted administratively is not warranted. Therefore, in the absence of documentary evidence to corroborate his claim, we find no basis to recommend granting the relief sought in this application. 4. 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 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 this application in Executive Session on 13 August 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-04968 was considered: Exhibit A. DD Form 149, dated 25 Oct 2012, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSID, dated 11 Feb 2013. Exhibit D. Letter, SAF/MRBR, dated 23 May 2013. Exhibit D. Letter, Applicant, dated 21 Jun 2013 w/atch. Dear: Reference your application submitted under the provisions of AFI 36-2603 (Section 1552, 10 USC), AFBCMR Docket Number BC-2012-04667. After careful consideration of your application and military records, the Board determined that the evidence you presented did not demonstrate the existence of material error or injustice. Accordingly, the Board denied your application. You have the right to submit newly discovered relevant evidence for consideration by the Board. In the absence of such additional evidence, a further review of your application is not possible. BY DIRECTION OF THE PANEL CHAIR Attachment: Record of Board Proceedings