RECORD OF PROCEEDINGS 

 AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2012-01644 

 COUNSEL: NONE 

 HEARING DESIRED: NO 

 

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APPLICANT REQUESTS THAT: 

 

The Distinguished Flying Cross (DFC) he received for his 
actions, on 22 Aug 68, be upgraded to the Silver Star (SS) 
Medal. 

 

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APPLICANT CONTENDS THAT: 

 

He should have been awarded the SS, as recommended by 
Colonel D., for his action in Vietnam, on 22 Aug 68. The 
applicant submitted his recommendation through his Member of 
Congress. 

 

He and two other former members of his unit executed a life-
saving mission over the Tay Ninh Mountain that ultimately saved 
“many friendly lives.” He and the other former members flew 
strike pass after strike pass with amazing accuracy, defying 
enemy fire from the ground. He was awarded the Distinguished 
Flying Cross (DFC) for this mission; however, he believes they 
all should have been awarded the SS. 

 

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

 

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STATEMENT OF FACTS: 

 

The applicant, while participating in aerial flight as a forward 
air controller (FAC), flew an extremely hazardous night mission 
in support of an infantry support base who was under heavy 
attack from hostile forces. Although his aircraft was under 
continuous fire, he successfully directed tactical air strikes 
in close proximity to friendly forces and was instrumental in 
turning back the hostile assault. 

 

On 28 Feb 78, the applicant was honorably relieved from active 
duty in the grade of major. He was credited with 25 years, 
10 months, and 12 days of active service for retirement. 

 

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THE AIR FORCE EVALUATION: 

 

AFPC/DPSIDR did not provide a recommendation; however, they 
noted the merits of the applicant's request needs to be 
considered for upgrade of the DFC to the SS. The applicant has 
not sought administrative relief in accordance with Title 10, 
United States Code § 1130 for the SS. The intent of the 
approval authority was to approve the DFC. 

 

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

 

The applicant was awarded the DFC for extraordinary achievement 
for the action on 22 Aug 68, per Headquarters Seventh Air Force 
Special Order G-3680, dated 27 November 1968. 

 

The complete DPSIDR evaluation is at Exhibit C. 

 

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APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: 

 

A copy of the Air Force evaluation was forwarded to the 
applicant on 8 Jun 12 for review and comment within 30 days. As 
of this date, no response has been received by this office 
(Exhibit D). 

 

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ADDITIONAL AIR FORCE EVALUATION: 

 

The Secretary of the Air Force Personnel Council (SAFPC) 
recommends denial. SAFPC states that at the time of this event, 
Headquarters Pacific Air Forces would have had all relevant 
information to consider the applicant for the SS. 

 

SAFPC states that the AFDB convened on 17 Aug 12 to consider the 
previous SS request for Col D. The AFDB members included four 
colonels (two rated and two mission support officers), and the 
board president, a general officer who is also rated with combat 
hours. Each Board member received a copy of the entire 
SS submission one week prior to the date of the board and copies 
of previous Vietnam era DFC and SS citations awarded for 
aviation valor to use as reference. 

 

SAFPC notes that since the actions of the applicant were similar 
to those of Col D. on 22 Aug 68 and they concur with the 
decision of the 17 Aug 12 AFDB and find the applicant’s actions 


on 22 Aug 68 were appropriately recognized by his previous award 
of the DFC. 

 

The complete SAFPC evaluation is at Exhibit E. 

 

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APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: 

 

A copy of the SAFPC evaluation was forwarded to the applicant on 
12 Mar 13 for review and comment within 30 days. As of this 
date, no response has been received by this office (Exhibit F). 

 

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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. We took notice 
of the applicant's complete submission in judging the merits of 
the case; however, the applicant’s case has undergone an 
exhaustive review by the SAFPC and we do not find the evidence 
provided sufficient to overcome its assessment of the case. 
Therefore, we agree with the opinions and recommendation of the 
SAFPC and adopt the rationale expressed 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. 

 

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THE BOARD DETERMINES THAT: 

 

The applicant be notified the evidence presented did not 
demonstrate the existence of material error or injustice; the 
application was denied without a personal appearance; and the 
application will only be reconsidered upon the submission of 
newly discovered relevant evidence not considered with this 
application. 

 

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The following members of the Board considered AFBCMR Docket 
Number BC-2012-01644 in Executive Session on 30 Apr 13, under 
the provisions of AFI 36-2603: 

 

 Panel Chair 

 Member 

 Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 17 Apr 12, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFPC/DPSIDR, dated 31 May 12. 

 Exhibit D. Letter, SAF/MRBR, dated 8 Jun 12. 

 Exhibit E. Letter, SAFPC, dated 11 Mar 13. 

 Exhibit F. Letter, AFBCMR, dated 12 Mar 13. 

 

 

 

 

 Panel Chair