RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-02123 COUNSEL: NONE HEARING DESIRED: NOT INDICATED ________________________________________________________________ THE APPLICANT REQUESTS THAT: He be awarded the Distinguished Flying Cross (DFC). ________________________________________________________________ THE APPLICANT CONTENDS THAT: The orders were requested; however, the person in charge was wounded and discharged before filing the recommendation for the DFC. His selfless and heroic actions, on 25 Feb 45, resulted in saving the lives of his crewmembers. A proposed citation indicates that during a bombing mission, he used his hands to stop a damaged pump from spraying fuel in the plane and was successful in isolating the pump and tank by closing the valve. His actions ensured mission success and enabled his crew to return safely to the base. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Army Air Force, who served on active duty from 18 Sep 42 through 4 Oct 45. On 18 Dec 44, he was assigned to the 792nd Bomb Squadron, 465th Bomber Group, 15th Air Force in Italy, as a B-24 gunner and participated in the Northern Appennines, Po Valley, Rhineland and Air Combat Balkans campaigns. ________________________________________________________________ THE AIR FORCE EVALUATION: AFPC/DPSIDR recommends denial, noting that unfortunately the applicant’s recommendation package is incomplete as well as all administrative avenues has not been exhausted. While the applicant does have congressional support, we have previously advised the congressional office on the requirements/process of submitting a recommendation for consideration by the Secretary of the Air Force. The DFC is awarded to any officer or enlisted person of the Armed Forces of the United States 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 November 1918. The complete DPSIDR evaluation, with attachments, is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 26 Feb 13 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit C). ________________________________________________________________ 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 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. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting corrective action. We note the comments by the Air Force office of primary responsibility (OPR); nonetheless, the applicant has provided a statement from his former operations officer, responsible for awards, who corroborates his account of the events on 25 Feb 45 and the circumstances as to why the original proposal was submitted through official channels. Therefore, based on the evidence provided, we believe the applicant meets the criteria for award of the Distinguished Flying Cross for heroism on 25 Feb 45. In view of the above, we recommend his record be corrected as indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that he was awarded the Distinguished Flying Cross for heroism, on 25 Feb 45, while serving as a flight maintenance gunner on a B- 24 airplane over enemy occupied Continental Europe. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-02123 in Executive Session on 28 Mar 13, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 2 Apr 12, w/atchs. Exhibit B. Letter, AFPC/DPSIDR, dated 17 Aug 12, w/atchs. Exhibit C. Letter, SAF/MRBR, dated 26 Feb 13. Panel Chair