RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2012-04672
	XXXXXXX	COUNSEL: NONE
		HEARING DESIRED:  YES

______________________________________________________________

APPLICANT REQUESTS THAT:

1.  He be entitled to the Vietnam Service Medal (VSM). 
(Administratively Corrected)

2.  He be entitled to the Air Medal (AM).

________________________________________________________________

APPLICANT CONTENDS THAT:

He should be issued the aforementioned awards in recognition of 
the combat time and missions he served from 1966 through 1969.  
He has applied for Department of Veterans Affairs benefits which 
require proof of service in Vietnam.

In support of his request the applicant provides a personal 
statement; copies of his DD Form 214, Armed Forces of the United 
States Report of Transfer or Discharge; AF Forms 77, Company 
Grade Officer Effectiveness Report, and various other documents 
associated with his request.

His complete submission, with attachments, is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

The applicant served in the Regular Air Force from 29 Sep 
1963 to 27 Jan 1970.

The remaining relevant facts pertaining to this application are 
contained in the letters prepared by the appropriate offices of 
the Air Force.  Accordingly, there is no need to recite these 
facts in this Record of Proceedings.

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AIR FORCE EVALUATION:

AFPC/DPAPP recommends that the applicant’s DD Form 214 be 
corrected to reflect Foreign Service time.  DPSID states that 
they were able to confirm that he served 286 days while 
temporarily assigned overseas in various locations between 
28 Nov 1964 and 16 May 1968 with confirmed boots on the ground 
in the Republic of Vietnam for one day; 13 Dec 1967.

The complete DPAPP evaluation, with attachment, is at Exhibit C.

AFPC/DPSID recommends denial of the applicant’s request for 
entitlement to the AM.  DPSID states that the AM may be awarded 
to any person who, while serving in any capacity with the United 
States Force, subsequent to 8 Sep 1939, distinguishes himself or 
herself by meritorious achievement while participating in an 
aerial flight.  The AM may be awarded for combat or non-combat 
action in recognition of single acts of valor, heroism, or merit 
while participating in an aerial flight.  Additionally, it may 
be conferred for sustained meritorious achievement (distinction) 
in the performance of duties involving aerial flight.  There is 
a lack of official documentation verifying he was recommended 
for and awarded the AM.  DPSID states that retroactive awards 
for retirees/veterans beyond the 2-year time limitation must be 
submitted in accordance with Title 10, Section 1130, United 
States Code (10 USC § 1130).

DPSID was able to verify his entitlement to the VSM with one 
Bronze Service Star and the Republic of Vietnam Gallantry Cross 
with Palm.  Upon the final Board decision, administrative 
correction of his official military personnel record will be 
completed by AFPC/DPSOR.

The complete DPSID evaluation, with attachment, is at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 14 Apr 2013, copies of the Air Force evaluations were 
forwarded to the applicant for review and comment within 
30 days.  As of this date, no response has been received by 
this office (Exhibit E).

________________________________________________________________

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 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 with regard to 
the applicant’s request for entitlement to the AM.  Although the 
applicant contends that he was not awarded the AM due to 
clerical reasons, he provides no evidence to support this 
contention.  As such, we find that he has failed to sustain his 
burden of substantiating the existence of an error or an 
injustice in his records.  Therefore, in view of the above and 
in the absence of evidence to the contrary, we find no basis to 
favorably consider this portion of his application.

4.  Notwithstanding the above, sufficient relevant evidence has 
been presented to demonstrate the existence of an error or 
injustice to warrant correcting the applicant’s records to 
reflect Foreign Service.  In this respect, we note the OPR was 
able to confirm that he served 286 days while temporarily 
assigned overseas in various locations with boots on the ground 
in Vietnam for one day.  Accordingly, we recommend his records 
be corrected as indicated below.

5.  The applicant's case is adequately documented and it has not 
been shown that a personal appearance with or without counsel 
will materially add to our understanding of the issue(s) 
involved.  Therefore, the request for a hearing is not favorably 
considered.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air 
Force relating to APPLICANT, be corrected to show that the 
DD Form 214, Armed Forces of the United States Report of 
Transfer or Discharge, issued in conjunction with his 27 Jun 
1976 separation be amended in Item 22c (Foreign and/or Sea 
Service), to read “0 years, 9 months and 11 days.”

________________________________________________________________

The following members of the Board considered this application 
in Executive Session on 16 Jul 2013, under the provisions of AFI 
36-2603:

     , Panel Chair
     , Member
     , Member

All members voted to correct the record as reflected.  The 
following documentary evidence pertaining to AFBCMR BC-2012-
04672 was considered:

    Exhibit A.  DD Form 149, dated 3 Oct 2012, w/atchs.
    Exhibit B.  Applicant’s Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPAPP, dated 4 Jan 2013, w/atch.
    Exhibit D.  Letter, AFPC/DPSID, dated 25 Mar 2013, w/atchs.
    Exhibit E.  Letter, SAF/MRBR, dated 14 Apr 2013.




                                   
                                   Panel Chair