RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2012-03654
		COUNSEL: NONE
		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

He be awarded the Distinguished Flying Cross (DFC). 

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APPLICANT CONTENDS THAT:

He completed 35 combat missions during World War II as a pilot in a B-17 Bomber.  His fellow pilots were awarded the DFC after completing 35 missions.  

In support of his request, the applicant provides WD AGO Form 53-98, Military Record and Report of Separation Certificate of Service and a memorandum.  

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

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STATEMENT OF FACTS:

On 17 Sep 12, AFPC/DPSID notified the applicant that based on a review of his official military records, they were able to determine that the Asiatic-Pacific Campaign Medal with two Bronze Service Stars (APCM W/2BSS); the American Campaign Medal (ACM); and the World War II Victory Medal (WWIIVM) should have been awarded during his service, and were not reflected in his records.  DPSID will administratively correct the applicant’s records.

The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are attached at Exhibits C and F.

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AIR FORCE EVALUATION:

AFPC/DPSID recommends denial.  DPSID states that after a thorough review of the applicant’s records, they were unable to verify award of the DFC.  
DPSID states that the applicant has not exhausted all administrative avenues in accordance with Title 10, U.S.C. § 1130 to pursue a recommendation through a member of Congress.

In addition, DPSID states that the applicant’s request is incomplete and provided a checklist and potential sources of information for the applicant. 

The complete DPSID evaluation, with attachments, is at Exhibit C.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 23 May 13, for review and comment within 30 days (Exhibit E).  As of this date, this office had not received a response.   

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ADDITIONAL AIR FORCE EVALUATION:

SAF/MRBP recommends upgrading the AM, 5 OLC, to the DFC.  MRBP states that a review of the applicant’s records reflects he was awarded the Silver Star and AM w/5 OLC.  The criteria for award of the AM and DFC in effect during the applicant’s WWII service, while assigned to the 8th Air Force, was six combat bomber missions for each AM and 35 total combat bomber missions for award of the DFC.

The complete MRBP evaluation is at Exhibit F.

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APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 30 May 13, for review and comment within 30 days (Exhibit G).  As of this date, this office has not received a response.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.  We note the comments of AFPC/DPSID 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 previous 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.  We note DPSID’s recommendation to deny this request; however, we agree with the recommendation of the SAF/MRBP.  In this respect, we note that based on the AM and DFC award criteria in effect during the applicant’s WWII service and noting the total number of combat missions he completed, it appears that rather than being awarded a sixth AM, i.e., AM, 5 OLC, he should have been awarded a DFC upon his completion of his 35th combat mission.  In view of this and in order to avoid dual-recognition, we agree with the opinion and recommendation of SAF/MRBP and adopt their expressed rationale as the basis for our decision the AM, 5 OLC should be upgraded to the DFC.  In view of the above, we recommend his records be corrected as indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that the Air Medal, Fifth Oak Leaf Cluster, awarded on 8 December 1944, be upgraded to the Distinguished Flying Cross. 

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The following members of the Board considered Docket Number    BC-2012-03654 in Executive Session on 6 Aug 13, under the provisions of AFI 36-2603:

							Panel Chair
							Member
							Member

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-03654 was considered:

    Exhibit A.  DD Form 149, dated 17 Apr 12, w/atchs.
    Exhibit B.  Letter, AFPC/DPSID, dated 17 Sep 12, w/atchs.
    Exhibit C.  Letter, AFPC/DPSOR, dated 4 Oct 12, w/atch.
	Exhibit D.  Letter, SAF/MRBR, dated 23 May 13.
	Exhibit E.  Letter, SAF/MRBP, dated 28 May 13.
	Exhibit F.  Letter, SAF/MRBC, dated 30 May 13.




								
								Panel Chair