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 applicants 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
applicants 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
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