RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2012-04968

		COUNSEL:  NONE

		HEARING DESIRED:  NOT INDICATED

________________________________________________________________

APPLICANT REQUESTS THAT:

His DD Form 214, Armed Forces of the United States Report of 
Transfer or Discharge, be corrected to reflect award of the 
Silver Star and Presidential Unit Citation (PUC).  

________________________________________________________________

APPLICANT CONTENDS THAT:

He never received his Silver Star.  Additionally, the PUC and 
the Republic of Vietnam Gallantry Cross with Palm (RVNGC w/P) 
never made it to his records.  The Silver Star and RVNGC w/P 
were awarded approximately 5 March 1970, about the same time he 
stopped writing in his journal.  His base was overrun shortly 
after his departure and some of his records were supposed to 
follow.  However, it took 42 years to find his records.  They 
were finally located in Honolulu, Hawaii.  

In support of his request the applicant submitted pictures of 
his RVNGC w/P award, correspondence from the National Personnel 
Records Center (NPRC), and a National Archives and Records 
Administration (NA) Form 13059, Transmittal of and/or 
Entitlement to Awards.  

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

________________________________________________________________

STATEMENT OF FACTS:

The applicant is a former member of the Regular Air Force who 
served from 1 July 1966 to 3 June 1970.  He was released from 
active duty with an honorable characterization of service and 
was credited with 3 years, 11 months, and 3 days of active duty 
service, of which, 1 year and 2 days were credited as Foreign 
Service.  

________________________________________________________________



AIR FORCE EVALUATION:

1.  HQ AFPC/DPSID recommends denial.  DPSID states there is no 
documentation to verify any of the applicant's assigned units 
were awarded the Presidential Unit Citation.  Additionally, 
official documentation verifying the applicant was recommended 
for and awarded the Silver Star could not be located.  

2.  The Presidential Unit Citation is conferred on units of the 
Armed Forces of the United States and of cobelligerent nations, 
for extraordinary heroism in action against an armed enemy on or 
after 7 December 1941.  The unit must display such gallantry, 
determination, and esprit de corps in accomplishing its mission 
as to set it apart from and above other units participating in 
the same campaign.  

3.  The applicant served as a Controller in the Air Traffic 
Regulation Center with the 1879th Communications Squadron, 
Detachment 1, Ban-Me-Thuot, Vietnam, from 1 June 1969 to 
1 June 1970.  They have been unable to locate any official 
documentation verifying he served with a unit that received 
award of the Presidential Unit Citation; therefore, rendering 
the applicant ineligible for this award.

4.  The Silver Star may be awarded to any individual while 
serving in any capacity with the United States Armed Forces, who 
distinguishes himself or herself by gallantry in action under 
any of the following circumstances:  

	a.  While engaged in an action against an enemy of the United 
States.  

	b.  While engaged in military operations involving conflict 
with an opposing foreign force. 

	c.  While serving with friendly foreign forces engaged in an 
armed conflict against an opposing armed force in which is not a 
belligerent party.  

The required gallantry, while of a lesser degree than that 
required for award of the Air Force Cross, must nevertheless 
have been performed with marked distinction.  

5.  They were unable to verify the award of the Silver Star as 
there is no documentation in the applicant's official military 
personnel record indicating the applicant was recommended or 
awarded the Silver Star.  Retroactive recommendations for awards 
for retirees and veterans beyond the 2-year time limitation must 
be submitted in accordance with Title 10, Section 1130, United 
States Code.  The National Defense Authorization Act of FY96 
passed 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 submission if referred 
by a Member of Congress.  Under the provisions of this law 
requests must be referred to the Secretary of the Air Force by a 
Member of Congress through the Secretary of the Air Force 
Liaison office (SAF/LL).  Additionally, the burden and costs for 
researching and assembling documentation to support award 
recommendations rest with the requester.  Once received, a 
determination will be made as to the merit of approving the 
award or decoration or any other determination necessary to 
comply with the provisions of the statute.  

6.  Based on their review of the applicant's official military 
personnel record, they were able to determine the below Air 
Force Medals should have been awarded during the applicant's  
service from 1 July 1966 to 3 June 1970 and were not reflected 
in his record:  

	a.  Vietnam Service Medal with four Bronze Service Stars (VSM 
w/4 BSS).  

	b.  Republic of Vietnam Gallantry Cross with Palm (RVNGC w/P)

The complete AFPC/DPSID evaluation is at Exhibit C.  

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response, the applicant highlights significant events 
that occurred during his tour of duty in Ban-Me-Thuot, Vietnam.  
He recalls a visit by, then, General Barry Goldwater who came to 
say “good job” for their radio and photo lab operations.  
Additionally, he describes an early morning enemy attack and his 
efforts to climb a steep, exposed, concrete staircase to the gun 
tower while helping his wounded cohorts and dodging a barrage of 
mortar, small arms fire and 122 rockets.  

The applicant’s complete response, with attachment, is at 
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 award of the Silver Star and 
Presidential Unit Citation.  We took notice of the applicant's 
complete submission, to include his rebuttal response, in 
judging the merits of the case; however, we agree with the 
opinion and recommendation of the Air Force office of primary 
responsibility and adopt its rationale as the basis for our 
conclusion that relief beyond that already granted 
administratively is not warranted.  Therefore, in the absence of 
documentary evidence to corroborate his claim, we find no basis 
to recommend granting the relief sought in this application.  

4.  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 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 this application 
in Executive Session on 13 August 2013, under the provisions of 
AFI 36-2603:

			, Panel Chair
			, Member
			, Member


The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2012-04968 was considered:

    Exhibit A.  DD Form 149, dated 25 Oct 2012, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPSID, dated 11 Feb 2013.
    Exhibit D.  Letter, SAF/MRBR, dated 23 May 2013.
    Exhibit D.  Letter, Applicant, dated 21 Jun 2013 w/atch.




								
								Panel Chair


AFBCMR
1500 West Perimeter Road, Suite 3700
Joint Base Andrews NAF Washington, MD 20762




Dear:

	Reference your application submitted under the provisions of AFI 36-2603 (Section 
1552, 10 USC), AFBCMR Docket Number BC-2012-04667.  

	After careful consideration of your application and military records, the Board 
determined that the evidence you presented did not demonstrate the existence of material error or 
injustice.  Accordingly, the Board denied your application.  

	You have the right to submit newly discovered relevant evidence for consideration by the 
Board.  In the absence of such additional evidence, a further review of your application is not 
possible.  

	BY DIRECTION OF THE PANEL CHAIR




				                                   
				                                   Chief Examiner
				                                   Air Force Board for Correction
				                                   of Military Records

Attachment:
Record of Board Proceedings

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