RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05531 XXXXXXX COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ THE APPLICANT REQUESTS THAT: He be awarded the Distinguished Flying Cross (DFC). ________________________________________________________________ THE APPLICANT CONTENDS THAT: Through his Member of Congress, he should have been awarded the DFC for completing 10 combat missions during World War II (WWII). On 29 Nov 43, while serving with the 339th Bombardment Squadron and the 96th Bombardment Group, his actions, of shooting down an enemy’s aircraft warrants award of the DFC. During this mission his aircraft was heavily damaged. Still in the tail gunner section, he began a 24,000 ft. free fall, which eventually led to him being severely injured, captured and becoming a Prisoner of War (POW). In support of his appeal, the applicant provides a personal statement; a statement from a friend; copies of several letters of support from his Members of Congress; newspaper clippings of eyewitness accounts, and various other supporting documents. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Army Air Corps who served in the European Theatre of Operation from 7 Oct 43 to 6 Jun 45, as an airplane armorer gunner 612. He participated in the Air Offensive Europe campaign. His WG AGO Form 53-55, Enlisted Record and Report of Separation, issued in conjunction with his 1 Dec 45 release from active duty, reflects that he was awarded the Purple Heart, Air Medal (AM), with One Oak Leaf cluster (1OLC), European-African-Middle Eastern (EAME) Ribbon, American Theater Ribbon, the Good Conduct Medal, and the WWII Victory Medal. He was credited with one year, five months and five days of continental service and one year, eight months, and six days of foreign service. ________________________________________________________________ THE AIR FORCE EVALUATION: AFPC/DPSID recommends denial, noting that the applicant has not exhausted all avenues of administrative relief. Nonetheless, should the Board determine the applicant has exhausted all avenues of administrative relief, DPSID recommends denial based on the lack of official documentation in his official military personnel records verifying that he was recommended for and awarded the DFC. Additionally, the applicant has not provided justification or supporting documentation that reflects he was eligible for award of the DFC nor did he provide evidence of an error or an injustice. To grant award of the DFC would be contrary to the criteria established by Department of Defense Manual (DoDM) 1348.33. The DFC is awarded to any officer or enlisted person of the Armed Forces of the United States who shall have distinguished her/himself in actual combat in support of operations by heroism or extraordinary achievement while participating in an aerial flight, subsequent to 11 Nov 18. DPSID notes that while the applicant has provided his WD AGO Form 53-55, Congressional interest, and a statement of events by a family friend who contends he reviewed both the applicant's video documentary and 185 pages of combat reports from the National Archives, the package still requires a proposed citation, chain of command endorsement, an eyewitness statement, and a narrative signed by the recommending official. The complete DPSID evaluation, with attachments, is at Exhibit C. The Secretary of the Air Force Personnel Council (SAFPC) recommends denial, stating, in part, while there is eyewitness testimony and evidence of the applicant riding in the wreckage and surviving the downing of his aircraft, there is no documentation in the record to support his involvement in shooting down the Me-210 and there is no documentation in the record that reflects the number of combat sorties he flew. Further, since the Enlisted Record and Report of Separation/Honorable Discharge lists an AM w/1OLC, the citation for the original award of the AM, and the citation for the OLC or other additional supporting documentation is needed to validate which missions were counted for the original award of the AM. The complete SAF/PC evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: In a rebuttal response, a friend of the applicant submitted additional documents including, copies of 339th Bomb Squadron's Record of Missions which addresses SAFPC's concerns about the number of missions flown by the applicant. The Record of Missions for tail gunners does not show his fifth mission (Mission 56 to Bremen); even though the record clearly shows he was shot down on that mission. Unfortunately, the applicant is currently a patient at the DVA hospital and the citations for the AM w/OLCs cannot be located. To clarify the earlier assertion that "ten points" were needed for awarding of the DFC, this was based on the applicant’s recollection. It should be noted, however, they have made every effort to educate themselves as to the criteria for awarding of the DFC and in assembling documentation that would satisfy the Review Board's requirements. The primary resource was an official at the Air Force Historical Research Agency (AFHRA) treatise "DFC and AM Criteria in the Army Air Forces in World War II." The evolution of the criteria was found to be confusing and conflicting, as they varied among commands and kept changing as the war progressed. Indeed, AFRHA’s research indicated that the criteria were still undergoing review at the time of the action in which the applicant’s plane was shot down. SAFPC’s review states that the "criteria for award of the DFC in effect at the time of the applicant’s WWII service, while assigned to the 8th Air Force, were 25 bomber combat missions." However, that is not the sole criteria and individual acts of heroism were frequently cited as justification for awarding the DFC. While the "ten points" referenced in the applicant's request for review may have been a misstatement, it is their belief that his actions satisfy the fundamental criteria for awarding of the DFC: "heroism or extraordinary achievement in aerial flight." In his original submittal, the Board was asked to consider the "totality of the events" in evaluating the merits of his request. Accordingly, they hope that deliberations not focus strictly on the issue of "points" and that consideration also be given to the applicant’s heroic actions during the air battle and ensuing events which were a direct result thereof. In support of his appeal, the applicant provides a letter from a family friend and copies of mission reports from his former unit. The applicant’s complete response, with attachments, is at Exhibit F. ________________________________________________________________ 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 do not find the evidence sufficient to override the rationale provided by the Air Force OPR and SAFPC. Therefore, we agree with the opinions and recommendations of the Air Force OPR and SAFPC and adopt their 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 he provide additional documentation to substantiate his claim, e.g., eyewitness statements, copies of previously awarded AMs, we would be willing to reconsider his petition. In view of the above and in the absence of persuasive 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-2012-05531 in Executive Session on 7 Nov 13, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 4 Sep 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSID, dated 25 Jan 13, w/atchs. Exhibit D. Letter, SAFPC, dated 7 Oct 13. Exhibit E. Letter, SAF/MRBC, dated 9 Oct 13. Exhibit F. Letter, Applicant’s Friend, dated 16 Oct 13, w/atchs. Panel Chair 5