RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-04209
		COUNSEL:
		HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

1. He be awarded the Distinguished Flying Cross (DFC).  

2. He be awarded the DFC with one oak leaf cluster.  

3. He be awarded the Air Medal with five oak leaf clusters (AM 
w/5OLC).

________________________________________________________________

APPLICANT CONTENDS THAT:

The Air Force neglected to award these decorations to him upon 
his discharge.  Based on the Eighth Air Force policy of awarding 
the DFC upon the completion of a tour of combat missions, and 
upon the completion of every additional 10 lead crew missions, 
he should be awarded the DFC for his completion of a tour of 
combat missions and for completing 14 lead missions.  Since it 
was also Eighth Air Force policy of awarding an AM upon the 
completion of every five heavy bomber missions, he was awarded 
the AM and four OLCs for flying his first 25 combat missions.  
However, he never received an additional OLC for his 26th 
through 30th combat missions while assigned to the 44th 
Bombardment Group.

Counsel cites a previous case where the AFBCMR awarded the DFC 
to an applicant for completion of a minimum of 10 lead or deputy 
lead combat missions and an OLC to the DFC for every 
10 successive lead missions completed (AFBCMR BC-2005-02255).

In support of his appeal, the applicant provides a statement of 
counsel and copies of his WD AGO 53-55, Enlisted Record and 
Report of Separation Honorable Discharge, power of attorney and 
discharge certificate.  

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

_________________ ______________________________________________




STATEMENT OF FACTS:

On 20 Nov 43, the applicant enlisted in the Army Air Corps as an 
aerial gunner.  On 5 Oct 45, he was honorably discharged from 
the Army of the United States.  He was credited with 1 year, 
2 months and 25 days of total active service with 7 months and 
21 days of Foreign Service.

According to AFPC/DPSID, they were able to verify the 
applicant’s award of the AM w/4OLCs; however, they were unable 
to locate a special order awarding the AM w/5OLCs.

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 B and C.

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSID states the Board needs to make a determination based 
on the merits of the case and evidentiary documentation.  DPSID 
states that in accordance with (IAW) Title 10, United States 
Code (USC) 1130, the applicant’s counsel provided a signed 
recommendation from someone in the applicant’s former chain of 
command and proposed citations; however, the request was not 
submitted through a Member of Congress.

The complete DPSID evaluation is at Exhibit B.

SAF/MRBP recommends denial of the applicant’s request for award 
of the DFC, DFC w/OLC and AM w/5OLCs due to a lack of supporting 
evidence of the applicant’s extraordinary achievement.  Further, 
there is a lack of source documents to verify the applicant’s 
flights and credits he may have earned for a number of missions.  
MRBP states that a witness statement from Lieutenant Col K------
-- and an affidavit from Lt Col M----- were not provided, nor 
was the policy on sortie credit for lead missions during this 
period.  In addition, flight orders, aeronautical orders, and 
flight records were not provided. 

The complete MRBP evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the 
applicant on 16 Jul 13, for review and comment within 30 days.  
As of this date, no response has been received by this office 
(Exhibit D).

________________________________________________________________

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, USC 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 office of primary responsibilities (OPRs) 
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.  After 
thoroughly reviewing the evidence of record and noting the 
applicant’s contentions, we find no basis to disturb the record.    
While the applicant’s counsel asserts, in essence that his 
appeal is similar to AFBCMR 2005-02255 and that relief is 
warranted using the same rationale for the DFC; we disagree.  In 
this regard, every case before this Board is considered on its 
own merit since the circumstances of each case are seldom 
identical.  In view of this, although we strive for consistency, 
we are not bound by precedent and evaluate the merits of each 
individual case to determine whether the applicant has been the 
victim of an error or injustice.  As noted by SAF/MRBP, there is 
a lack of evidence of the applicant’s extraordinary achievement 
and source documents to verify any flights and credits he may 
earned.  As such, we do not find the case he references supports 
his request for a DFC, an additional OLC to the DFC or the AM w/ 
5 OLCs.  The personal sacrifice the member endured for his 
country is noted, and our recommendation to deny the requested 
relief in no way diminishes the high regard we have for his 
service; however, based on the totality of the evidence 
presented, we are not persuaded the applicant has met his  
burden of establishing an error or injustice has occurred.  
Therefore, we agree with the opinion and recommendation of 
SAF/MRBP and adopt the rationale expressed as the basis for our 
conclusion the applicant has not been the victim of an error or 
injustice.  In view of the above and in the absence of evidence 
to the contrary, we find no basis to recommend 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-2012-04209 in Executive Session on 17 Sep 13, under 
the provisions of AFI 36-2603:

	               Panel Chair
	               Member
	               Member

The following documentary evidence was considered:

	 Exhibit A.  DD Form 149, dated 19 Aug 12, w/atchs.
	 Exhibit B.  Letter, AFPC/DPSID, dated 25 Jan 13
	 Exhibit C.  Letter, SAF/MRBP, dated 15 Jul 13.
	 Exhibit D.  Letter, SAF/MRBR, 16 Jul 13.




                                   
                                   Panel Chair