RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04667 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to show he is entitled to 4-5 additional Air Medals (AM). ________________________________________________________________ APPLICANT CONTENDS THAT: He was on several temporary duty (TDY) assignments to Udorn Air Base (AB). He flew combat support missions over Laos, Cambodia and Vietnam from November 1970 to May 1972. This should entitle him to the Vietnam Service Medal. He is due additional Air Medals for flights into typhoons and into Laos and Cambodia. The applicant’s complete submission, with attachments, is at exhibit A. ________________________________________________________________ STATEMENT OF FACTS: 1. The applicant is a former member of the Regular Air who enlisted on 7 August 1968. He was progressively promoted to the grade of Sergeant, E-4 and was released from active duty on 4 August 1972. He was credited with serving 3 years, 11 months and 28 days of active duty service. 2. Item 24, Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized of his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, reflects award of the Air Medal with 1 Oak Leaf Cluster, (AM w/1OLC) and a National Defense Service Medal (NDSM). ________________________________________________________________ AIR FORCE EVALUATION: 1. AFPC/DPSID states after a complete review of the applicant’s military personnel record (MPR), they have verified the applicant’s entitlement to the VSM and his record will be updated to reflect this award; however, they recommend denial of his claim for award of additional Air Medals. They could not locate official documentation that verified he was recommended for and awarded the additional Air Medals. The Air Medal may be awarded to any person who, while serving in any capacity with the United States Armed Forces, subsequent to 8 September 1939, distinguishes himself or herself by meritorious achievement while participating in an aerial flight. The Air Medal 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. 2. DPSID further states 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. The complete AFPC/DPSID evaluation, with attachment, is at exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 21 January 2013 for review and comment within 30 days. To date, a response has not been received. ________________________________________________________________ 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. After thoroughly reviewing the evidence of record and noting the applicant’s contentions, we are not persuaded that he has met his burden of establishing that his record should be corrected to reflect his entitlement to 4-5 additional Air Medals for flights into typhoons and into Laos and Cambodia. We note that documents in the applicant’s Military Personnel Record indicate he was awarded the Air Medal with one oak leaf cluster (AM w/1 OLC) for flying reconnaissance missions involving extremely hazardous penetrations into fully developed typhoons. However, this documentation is not sufficient to determine his entitlement of the 4-5 additional Air Medals. Therefore, in the absence of documentary evidence to corroborate his claim, we find no basis to recommend granting 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 this application in Executive Session on 27 June 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR Docket Number BC-2012-04667: Exhibit A. DD Form 149, dated 5 Oct 2012, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSID, dated 3 Jan 2013, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 21 Jan 2013.