RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-03117

	*********** (DECEASED)	COUNSEL:  NONE
	
	*********** (APPLICANT)	HEARING DESIRED:  NO 


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APPLICANT REQUESTS THAT:

Her late husband be awarded the Silver Star (SS). 

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APPLICANT CONTENDS THAT:

His actions on 24 Aug 43 during a World War II bombing mission over Hankow, China merit award of the SS.

While serving as bombardier during a mission on a B-24 Liberator, his pilot and copilot were both incapacitated by injury.  The pilot was mortally wounded, and the copilot temporarily lost consciousness due to enemy fire.  He administered first-aid to the stricken pilot, made the aircraft safe by securing a ruptured high pressure hydraulic line, and took command of the aircraft.  With only two hours of prior flight training, he saved the aircraft and the lives of at least eight personnel by flying the plane himself for from 20 to 30 minutes until the copilot recovered consciousness and could fly the aircraft again.  

The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The decedent is a former member of the Army Air Corps, who, while serving as a second lieutenant, was assigned to the 425th Bombardment Squadron, 308th Bombardment Group, Fourteenth Air Force (The Flying Tigers) as a B-24, Liberator, bombardier.  

On 24 Aug 43, his aircrew flew a bombing mission over Hankow, China as a crewmember of the “The Sherazade.” 

On 22 Apr 44, he was awarded the Distinguished Flying Cross (DFC) for extraordinary achievement while taking part in over 200 hours of aerial combat flights from 12 Aug 43 to 23 Dec 43 in the China, Burma, and India Theater of Operation.  

The Silver Star is awarded to any individual while serving in any capacity with the U.S. Armed Forces, who distinguishes himself or herself by gallantry in action while engaged in an action against an enemy of the U.S., while engaged in military operations involving conflict with an opposing foreign force, or while serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which it is not a belligerent party.  Gallantry in action means heroism of high degree including risk of life.

On 29 Jun 11, an acquaintance recommended him, through his member of Congress, for the Congressional Medal of Honor (MoH) for his actions on 24 Aug 43.  However, he later requested award of the SS and asked not to be considered for the MoH. 

On 10 Nov 12, he passed-away and his widow became the applicant on his behalf. 

The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility, which are attached at Exhibits C, D, H and I.    

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AIR FORCE EVALUATIONS:

AFPC/DPSI recommends denial indicating insufficient documentation has been submitted, and outlining how the applicant can submit a more complete application in the future for an upgrade to his DFC. 

A complete copy of the AFPC/DPSI evaluation is at Exhibit C.

SAF/MRBP recommends denial indicating there is no evidence of an error or an injustice.  A search of applicable historical records found a West Point memorial for the pilot of “The Sherazade” who died on this mission, indicating he was posthumously awarded the Air Medal.  Further, a search for the copilot of “The Sherazade” found his obituary which states that during his career he was awarded the SS, DFC, and Purple Heart, but no records were provided or found to document the dates of the acts for these awards.  Although the act for which the applicant has requested her late husband be awarded the SS is extraordinary, at the time of the event Headquarters Fourteenth Air Force and Pacific Air Forces would have had all the relevant information available to recommend him for the SS or other recognition, if appropriate.  

A complete copy of the SAF/MRBP evaluation, with attachments, is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations, with attachments, were forwarded to the applicant on 18 Jun 13 for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit G).

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ADDITIONAL AIR FORCE EVALUATIONS:

AFHRA/RS has reviewed the official unit histories of the 308th Bombardment Group, 308th Bombardment Group Mission Reports, Fourteenth Air Force official history, Fourteenth Air Force Daily Intelligence Reports, and Fourteenth Air Force Weekly Intelligence Reports for any information concerning the 24 August 1943 mission and recommends denial of the applicant’s request.  They state, in part, that based upon the criteria used in 1943 there is no basis for any award.  While they are not implying they do not believe the recounting of events, they have failed to find any official documentation that would serve as a reasonable basis to award any decoration.  Only the former member has provided information for that mission claiming he took control of the aircraft, unfortunately, neither he nor any other crewmember on that flight provided these details now claimed until decades after the flight. 

In summary concerning the mission, the general information provided by the former member is confirmed, with the exception of his taking control of the aircraft while the co-pilot was incapacitated.  Unfortunately, while the official documents do note the co-pilot was wounded, there is no mention of the former member taking control of the aircraft at any time or that he shot down any enemy aircraft (his aircraft on this mission was credited for shooting down three enemy aircraft and all three were credited to other members of the crew). Another unfortunate circumstance is that the only living crewmember, the co-pilot, now suffers from Alzheimer's disease and cannot recall the events in detail to support the request. However, there is one printed interview from John T. Foster's book, China Up and Down, published in 1994, where the author interviewed the co-pilot, who claimed he was only unconscious  for "a moment."  The co-pilot does not refer to the former member taking controls of the aircraft at all in the portion of the published interview.  The diary of the co-pilot, mentioned in the 29 June 2011 letter to Congressman McIntyre was not included in the package and could not be reviewed. 

During the period in question, the SS was not as controversial as the DFC and AM decorations, but a few things do stand-out after reviewing the various combat theaters’ criteria.  The most significant is that a lone account by the individual, who would receive the award, if approved, would be discounted.  

A complete copy of the AFRHA/RS evaluation, with attachment, is at Exhibit H.

SAF/MRBP recommends denial indicating there is no evidence of an error or an injustice.  A search of applicable historical records found a West Point memorial for the pilot of “The Sherazade” who died on this mission, indicating he was posthumously awarded the Air Medal.  Further, a search for the co-pilot of “The Sherazade” found his obituary which states that during his career he was awarded the SS, DFC, and Purple Heart, but no records were provided or found to document the dates of the acts for these awards.  Although the act for which the applicant has requested her late husband be awarded the SS is extraordinary, at the time of the event Headquarters Fourteenth Air Force and Pacific Air Forces would have had all the relevant information available to recommend him for the SS or other recognition, if appropriate.  

A complete copy of the SAF/MRBP evaluation is at Exhibit I.

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APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to the Congressman McIntyre’s office, on behalf of the applicant, via electronic mail (email) on 12 Aug 13 for review and comment within 30 days.  In an 18 Sep 13, email, Congressman McIntyre’s office indicated the Board has received all of the information available on the case (Exhibit J).

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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.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  In this respect, we note the former member was awarded the Distinguished Flying Cross on 22 April 1944, for extraordinary achievement while taking part in over 200 hours or aerial combat flights from 12 August 1943 to 23 December 1943 in the China, Burma, and India Theater of Operation.  The applicant seeks to have her late husband’s records corrected to reflect that he was awarded the Silver Star for his actions on 24 August 1943, when he took controls of the aircraft after the pilot was mortally wounded and the co-pilot unconscious.  We have thoroughly reviewed the evidence submitted in support of this request and noted the applicant’s contentions.  Although official documents do reference the co-pilot being wounded, there is no mention of the former member taking control of the aircraft at any time or that he shot down any enemy aircraft. We also note that in the one printed interview of the co-pilot in China Up and Down, he claimed he was only unconscious for "a moment" and does not refer to the former member taking controls of the aircraft at all.  We have also considered the opinions and recommendations contained in the extensive evaluations accomplished by the Director of the Secretary of the Air Force Personnel Council and the Air Force Historical Research Agency, which included a thorough review of the official unit histories of the 308th Bombardment Group [the former member’s group of assignment], 308th Bombardment Group Mission Reports, Fourteenth Air Force official history, Fourteenth Air Force Daily Intelligence Reports, and Fourteenth Air Force Weekly Intelligence Reports for any information concerning the 24 August 1943 mission.  We find these opinions more than adequately address the applicant’s contentions and are supported by the evidence of record.  As such, we adopt the rationale expressed as the basis for our conclusion the former member’s records are not in error or unjust.  It should be noted that each case before this Board is considered on its own merits, and precedent does not bind us.  While we do strive for consistency in the manner in which evidence is evaluated and analyzed, we are not bound to recommend relief in one circumstance simply because the situation being reviewed appears similar to another case.  Notwithstanding, we have reviewed the Board’s decision in BC-2005-02073 cited by the applicant and are not persuaded that it supports the existence of an error or injustice in this case.  In BC-2005-02073, the veteran was a crewmember of an aircraft that was struck several times by enemy anti-aircraft during the second pass of a bombing run, resulting in the instant death of the pilot and the foot of the mission’s command pilot being almost completely severed above the ankle, causing him to lose consciousness due to the loss of blood.    After the bail-out order was given to the rest of the crew, the veteran voluntarily chose to remain with the severely wounded mission’s command pilot and applied a tourniquet and sulfa powder to his wounds despite the fact the aircraft had lost all engines, was leaking fuel and rapidly descending from an altitude of 23,000 feet, with an armed 500 pound bomb that had not deployed.  It should also be noted that in BC-2005-02073, extensive documentation concerning the 5 June 1944 mission was provided, to include eyewitness statements from fellow crewmembers and a transcript of an 8 July 1944 British Broadcasting Company (BBC) radio interview of the mission’s command pilot and a favorable recommendation from the former 66th Bomb Squadron Commander recommending award of the Distinguished Service Cross, based on his first-hand knowledge of the event.  No such documentary evidence has been provided in this case, nor do sufficient similarities exists between these cases for us to conclude the failure to award the former member a decoration, constitutes an error or injustice. We are not unmindful of the service and sacrifice the former member made to our Nation, and our decision in no way diminishes the high regard we have for his service; however, absent corroborative evidence to support award of a decoration, we do not find a reasonable basis to disturb the record.  Therefore, in view of the above and in the absence of evidence to the contrary, we find no basis upon which to recommend favorable consideration of this application. 

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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.

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The following members of the Board considered Docket Number BC-2012-03117 in Executive Session on 23 October 2013, under the provisions of AFI 36-2603:

	XXXXX, Panel Chair
			XXXXX, Member
			XXXXX, Member

The following documentary evidence was considered:

 Exhibit A.  DD Form 149, dated.29 Jun 12, w/atchs
 Exhibit B.  Member's Master Personnel Records.
 Exhibit C.  Memorandum, AFPC/DPSI, dated 24 Sep 02, w/atchs.
 Exhibit D.  Memorandum, SAF/MRBP, dated 29 May 13, w/atchs.
 Exhibit E.  Letter, SAF/MRBR, dated 23 May 13.
 Exhibit F.  Letter, SAF/MRBR, dated 30 May 13.
 Exhibit G.  Letter, SAF/MRBC, dated 18 Jun 13.
 Exhibit H.  Electronic Mail, AFHRA/RS, dated 31 Jul 13, w/atch.
 Exhibit I.  Memorandum, SAF/MRBP, dated 1 Aug 13.
 Exhibit J.  Electronic Mail, C/M McIntyre’s Office,
             dated 18 Sep 13.
 





                                   Panel Chair