RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00159 XXXXXXX COUNSEL: HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. He be entitled to the Bronze Star Medal (BSM). 2. He be entitled to the Purple Heart (PH). 3. His records be corrected to reflect his service dates and locations. 4. He be entitled to the Vietnam Service Medal with two Bronze Service Stars(VSM w/2 BSS). (Administratively Corrected) 5. He be entitled to the Vietnam Campaign Medal (VCM). (Administratively Corrected) ________________________________________________________________ APPLICANT CONTENDS THAT: Before he left Vietnam, his commander informed him he was going to be awarded two medals when he returned to the United States. He was advised that he may have declined the BSM and the PH. 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; AF Form 899, Request and Authorization for Permanent Change of Station and various other documents associated with his request. His complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: In a 5 Apr 2013 memorandum to the applicant, AFPC/DPSIPV clarified how service dates are recorded on the DD Form 214. Specifically that the amount of time at each individual assignment location is not authorized to be recorded on this form. AFPC/DPSID was able to verify the applicant's entitlement to the VSM w/3 BSS, the VCM and the Republic of Vietnam Gallantry Cross with Palm (RVNGC w/P) during his service from 23 Aug 1966 to 21 Aug 1970 and were not reflected in his records. Upon the final Board decision, administrative correction of the applicant's official military personnel record will be completed by AFPC/DPSOR. In accordance with AFM 900-3, during the period in question, the PH was awarded for wounds received in action against an enemy, or as a direct result of an act of any enemy, opposing armed force, or hostile foreign force. For the purpose of considering award of the PH, a wound was defined as an injury to any part of the body from an outside force or agent. A physical lesion was not required, provided the concussion or other form of injury received was due to direct enemy, opposing armed force, or hostile foreign force action. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSID recommends denial of the applicant’s request for entitlement to the BSM and the PH. DPSID states that they were unable to locate any official documentation verifying the applicant was recommended for or awarded the BSM. Furthermore, there is no documentation to substantiate he received an injury as a result of direct enemy action and was recommended for or awarded the PH. Retroactive recommendations for awards for retirees/veterans beyond the two year time limitation may be submitted in accordance with Title 10 USC 1130. 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. Moreover, to grant the applicant relief would be contrary to DoDM 1348.33, Manual of Military Decorations and Awards. The BSM is awarded to a person in any branch of the military service who, while serving in any capacity with the Armed Forces of the United States after 6 Dec 1941, shall have distinguished himself by heroic or meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy. The award recognizes acts of heroism performed in ground combat if they are of lesser degree than that required for the Silver Star. It also recognizes single acts of merit and meritorious service if the achievement or service is of a lesser degree than that deemed worthy of the Legion of Merit; but such service must have been accomplished with distinction. The PH is awarded to members of the United States Armed Forces who have been wounded, killed, or who have died or may hereafter die of wounds received in action against an enemy of the United States or opposing force as a result of an act of any such enemy or opposing armed force, an international terrorist attack or during military operations while serving as a part of a peacekeeping force. A wound for which the award is made must have required treatment, not merely examination, by a medical officer. Additionally, treatment of the wound shall be documented in the service member's medical and/or health record. Award of the PH may be made for wounds treated by a medical professional other than a medical officer, provided a medical officer includes a statement in the service member's medical record that the extent of the wounds were such that they would have required treatment by a medical officer if one had been available to treat them. The complete DPSID evaluation with attachment, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 14 Apr 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 agree with the opinion and recommendation of the Air Force Office of Responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. We also note the OPR will administratively correct the applicant’s records to reflect his entitlement to the VSM w/3 BS, the VCM and the RVNGC w/P. 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. ________________________________________________________________ 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 26 Sep 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC- 2013-00159: Exhibit A. DD Forms 149, dated 3 Jan 2013, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSID, dated 25 Mar 2013, w/atch. Exhibit D. Letter, SAF/MRBR, dated 14 Apr 2013. 3 4 5