RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05393 XXXXXXX COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. He be entitled to the Legion of Merit (LOM). 2. He be entitled to the Small Arms Expert Marksmanship Ribbon (SAEMR). 3. He be entitled to the Air Force Combat Action Medal (AFCAM). 4. He be entitled to the Presidential Unit Citation (PUC). (Administratively Corrected) 5. He be entitled to the Republic of Vietnam Gallantry Cross with Palm (RVNGC w/P). (Administratively Corrected) 6. He be entitled to the Air Force Outstanding Unit Award with Valor(AFOUA w/V). (Administratively Corrected) ________________________________________________________________ APPLICANT CONTENDS THAT: His unit in Vietnam was awarded the aforementioned awards and he did not receive them upon his discharge from active duty. In support of his request the applicant provides a copy of his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, and various other documents associated with his request. His complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSID recommends denial of the applicant’s request for entitlement to the LOM, SAEMR and the AFCAM. DPSID states that the LOM is governed by Executive Order 9260, which authorizes the President of the United States to award the LOM to any member of the United States Armed Forces and to any member of the armed forces of friendly foreign nations who has distinguished himself or herself by exceptionally meritorious conduct in performing outstanding services after 8 Sep 1939. There is a lack of official documentation in his official military personnel records verifying he was recommended for and awarded the LOM. Furthermore, he has not provided justification or supporting documentation that reflects he was eligible for award of the LOM nor did he provide evidence of an error or an injustice. The SAEMR is awarded to all Air Force service members who, after 1 Jan 1963, qualify as "expert" in small arms marksmanship with either the M-16 rifle or issue handgun. DPSID was unable to locate documentation verifying the applicant qualified as "expert" in the aforementioned weapons. With regard to his request for the AFCAM, DPSID states that on 15 Mar 2007, the Secretary of the Air Force approved establishment of the AFCAM to recognize any military member of the Air Force (airman basic through colonel) who actively participated in combat (ground to air). The AFCAM may be awarded for qualifying service from 11 Sep 2001 to a date to be determined. Retroactive awards prior to 11 Sep 2001 are not authorized. He was discharged from active duty on 6 Jan 1970, rendering him ineligible for the AFCAM. DPSID was able to verify the applicant's entitlement to the PUC, AFOUA w/v, Vietnam Service Medal with three Bronze Service Stars (VSM w/3 BSS), and the RVNGC w/P. Upon the final board decision, administrative correction of the applicant's official military personnel record will be completed by AFPC/DPSOY. The complete DPSID evaluation with attachments, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 23 May 2013, a copy of the Air Force evaluation was forwarded to the applicant 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 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. In this respect, we note the AFCAM was not established until 15 Mar 2007 and retroactive awards prior to 11 Sep 2001 are not authorized. In view of the applicant’s 6 Jan 1970 separation, he is ineligible for the AFCAM. With regard to the SAEMR, he provides no evidence to demonstrate that he ever qualified expert with either the pistol or rifle. In support of his request for the LOM, the applicant provides a copy of 1969 special order referencing award of the LOM; however, the recipient’s identifying information, i.e., name and social security number, are missing from the order. In view of this, we do not find this evidence sufficient to warrant awarding him the LOM. We also note the OPR has administratively corrected the applicant’s records to reflect his entitlement to the PUC, RVNGC w/P, and AFOUA w/V. However, we find that he has failed to sustain his burden of substantiating the existence of an error or an injustice in his records regarding the remainder of his requests. 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. 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 15 Aug 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC- 2012-05393: Exhibit A. DD Forms 149, dated 14 Nov 2012, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSID, dated 25 Jan 2013, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 23 May 2013. Panel Chair 2 3