RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2012-03962
     								 COUNSEL: NONE
	  							HEARING DESIRED:  NO

_______________________________________________________________

APPLICANT REQUESTS THAT: 

His records be amended to reflect the following awards:   

1. Purple Heart (PH).     

2. Distinguished Flying Cross (DFC).  

_______________________________________________________________

APPLICANT CONTENDS THAT:

He was injured on 26 Mar 1945 and was advised that he would receive these awards at a later date.  The circumstances, to include lengthy combat missions, casualties, combat losses and confusion made the completion of paperwork difficult.  He never received the awards and requests the Board grant relief and not perpetuate the inequity, unfairness and injustice.  

In support of his requests, the applicant provides a personal statement, copies of WD-AGO 53-55, Enlisted Record and Report of Separation with Honorable Discharge, photographs and various other 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 and served from 13 Nov 1943 to 10 Nov 1945.    

His available military service records show that he was awarded the European African Middle Eastern (EAME) Service Medal with four bronze stars, the American Theatre Service Medal, the Good Conduct Medal, the Air Medal with one oak leaf cluster, the Victory Medal and the Overseas Service Ribbon.

The Purple Heart is awarded for wounds or death as result of an act of any opposing armed force, as a result of an international terrorist attack or as a result of military operations while serving as part of a peacekeeping force. Prior to the adoption of the Legion of Merit and Bronze Star Medal, it was given by the Army for meritorious service. The decoration was authorized for the Army by a War Department order of 22 Feb 1932, and for Navy and Marine Corps personnel by a Navy Department order of  21 Jan 1943, superseded by an executive order of 12 Nov 1952.

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 1918.

_______________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSI recommends denial of the applicant’s request for award of the PH and DFC. DPSI states that the request does not contain the required medical evidence and supporting documentation required for award of the PH.  Without specific evidence concerning the wounding and pertinent medical information, there is nothing to substantiate award of the PH.  Although the applicant provided a detailed account of the injuries incurred on 26 Mar 1945, official documentation shows the immediate cause of the accident was the striking of the telegraph pole by the right flap of the plane and the accident was the result of pilot error and not the result of enemy action. 

DPSI states that after a thorough review of the applicant’s official military personnel records, they were unable to verify award of the DFC.  The applicant has not exhausted all avenues for retroactive request for award of the DFC.   Retroactive recommendations for awards for retirees and veterans beyond the two year time limitation must be submitted in accordance with Title 10, Section 1130, United States Code.  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 a submission referred by a member of Congress.  In order for a request to reasonably be considered under the provisions of this law, a reconstructed award recommendation containing information pertaining to the airman, a narrative citation of the actions being recognized and eyewitness statements attesting to the act of valor or service performed are required.  Under the provisions of this law, requests must be referred to the Secretary of the Air Force by a Member of Congress.

The complete DPSI advisory is at Exhibit B.

_______________________________________________________________




APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 19 Nov 2012, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit C).  To date, a response has not been received.   

_______________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

SAF/MRBP recommends denial of award of the PH.  MRBP states the applicant’s request does not include the required medical evidence, or supporting documentation, such as, eyewitness accounts.  

MRBP recommends denial of the applicant’s request for award of the DFC.  MRBP states the applicant’s request does not include the required supporting evidence, such as the applicant’s flight records, crew member logs or eyewitness statements, for award of the DFC.   

Should the applicant obtain the required documentation or witness statements as confirmation of the events, he may  petition the Board for reconsideration for award of the PH and DFC.  

The complete MRBP advisory is at Exhibit D. 
 ________________________________________________________________

APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

On 8 Oct 2013, a copy of the SAF/MRBP evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit E).  To date, a response has not been received.   

_____________________________________________________________ 

THE BOARD CONCLUDES THAT:

1. The applicant has exhausted all remedies provided by existing law or regulations.  We note the office of primary responsibility’s 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 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.  After thoroughly reviewing the evidence of record and the applicant’s contentions, we are not persuaded the requested relief should be granted.  The applicant’s personal sacrifice and unselfish service to his country is noted and our decision in no way lessens our regard for his service; however, without documentation to substantiate award of the PH and DFC, we are unable to verify his entitlement to the awards.  Therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  In the absence of 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 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 AFBCMR Docket Number BC-2012-03962 in Executive Session on 19 Nov 2013, under the provisions of AFI 36-2603:

	, Panel Chair
        , Member
        , Member




The following pertinent evidence was considered in Docket Number BC-2012-03962:

    Exhibit A.  DD Form 149, dated 3 Aug 2012, w/atch.
    Exhibit B.  Letter, AFPC/DPSI, dated 3 Nov 2012, w/atch.
    Exhibit C.  Letter, SAF/MRBR, dated 19 Nov 2012.
    Exhibit D.  Letter, SAF/MRBP, dated 8 Oct 2013.  
    Exhibit E.  Letter, SAF/MRBC, dated 8 Oct 2013.
    



                                    
                                   Panel Chair