RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00910 XXXXXXX COUNSEL: NONE HEARING DESIRED: NOT INDICATED ________________________________________________________________ THE APPLICANT REQUESTS THAT: He be awarded the Distinguished Flying Cross with One Oak Leaf Cluster (DFC w/1OLC) and additional Air Medals (AMs). ________________________________________________________________ THE APPLICANT CONTENDS THAT: He flew 57 missions during World War II (WWII) and was told that he should have received a DFC, w/1OLC and more oak leaf clusters to his AMs for missions in Europe. In support of his appeal, the applicant provides copies of his honorable discharge order and enlistment record. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 17 May 45, the applicant was honorably discharged from active duty in the grade of staff sergeant (SSgt). He was credited with 4 years, 5 months, and 19 days of active duty service. The applicant’s Enlisted Record of Service reflects that he was awarded the DFC and the AM, with Three Oak Leaf Clusters (AM, w/3OLCs). ________________________________________________________________ THE AIR FORCE EVALUATION: AFPC/DPSID recommends denial, stating in part, that the applicant was previously given guidance in 1998 to assist in the process of requesting the DFC, w/1OLC and additional AMs. On 22 Apr 04, his United States (US) senator was notified that the applicant’s official military personnel record had been destroyed. The applicant has not exhausted all avenues of administrative relief. He was provided guidance in 1998 and never provided DPSID with the documentation necessary to reasonably consider his request to include a recommendation from someone with firsthand knowledge, a proposed citation, and eyewitness statements. The applicant has not provided any official documentation to verify he was recommended for or awarded the DFC, w/1OLC or additional AMs. Additionally, he has not provided justification or supporting documentation, nor did he provide evidence of an error or injustice. To grant the applicant relief would be contrary to the DoDM 1348.33. The applicant made similar requests to DPSID in 1996 and in 1997. On 20 Jan 98, DPSID gave the applicant the 1996 National Defense Authorization Act guidance along with a decoration checklist to assist him with his request. In Apr 04, the applicant again made a request through his US senator; however, it does not appear that he provided the requested recommendations, sworn affidavits, certificates or any additional documentation to verify his request. In the response letter, his US senator was informed that the applicant's military personnel record had been destroyed in the National Personnel Center fire of 1974, and there was insufficient documentation to process the request. There was no official documentation provided, by the applicant, to assist with the current request. The DFC is awarded to any officer or enlisted person of the US Armed Forces who shall have distinguished her or himself in actual combat in support of operations by heroism or extraordinary achievement while participating in an aerial flight, subsequent to 11 Nov 18. The AM may be awarded to any person who, while serving in any capacity with the US Armed Forces, subsequent to 8 Sep 39, distinguishes himself or herself by meritorious achievement while participating in an aerial t1ight. 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. The complete DPSID evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 15 Aug 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 Air Force Office of Primary Responsibility (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 over 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. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force OPR and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. We are not unmindful or unappreciative of the applicant’s service to his Nation. Should the applicant provide additional documentation to substantiate his claim, e.g., eyewitness statements, copies of orders for the previously awarded AMs to make further determination if he had already been awarded the AM for the same period, or in fact, if he is entitled to additional awards. In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2013-00910 in Executive Session on 9 Jan 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, undated, w/atchs. Exhibit B. Applicant's Available Master Personnel Records. Exhibit C. Letter, AFPC/DPSID, dated 1 Jul 13. Exhibit D. Letter, SAF/MRBR, dated 15 Aug 13. 1 2