RECORD OF PROCEEDINGS 

 AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2012-01645 

 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 for his actions in Vietnam. 
His original documents were not forwarded or were lost due to 
the shuffle by his unit and higher headquarters. 

 

Based on a statement from Maj O., on 22 Aug 68, the applicant, 
as part of the 352nd Tactical Fighter Squadron, Phan Rang Air 
Base, Republic of Vietnam (RVN), participated in support of a 
firebase in Tay Ninh Province, RVN. As part of Blade 07 Flight, 
he made numerous air strikes. Each strike pass was met with 
intense anti-aircraft fire which required pilots to exercise 
strenuous self-control and disregard for their own life to 
deliver all ordnance on target. He and the other two pilots 
were recommended for the SS, but the recommendation was lost. 
He was awarded the DFC for this mission; however, he believes he 
should have been awarded the SS. 

 

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

 

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STATEMENT OF FACTS: 

 

On 22 Aug 68, the applicant, while participating in aerial 
flight, flew in support of an American and RVN Army support base 
that was under heavy attack from hostile forces. He contributed 
to the repulsion of the attacking hostile force causing great 
losses. 

 

On 30 Apr 79, the applicant was honorably relieved from active 
duty in the grade of captain. He was credited with 20 years and 
10 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. In addition, they 
noted the applicant has not sought administrative relief in 
accordance with Title 10, United States Code, Section 1130 (10 
U.S.C. § 1130). The intent of the approval authority was to 
approve the DFC. If the decision is to grant the relief sought, 
to correct the record, the Board will need to provide a citation 
to accompany the award of the SS in order to process the 
elements to the Secretary of the Air Force and the Chief of 
Staff of the Air Force for signature, and the DFC will be 
revoked. 

 

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 heroism for the action on 
22 Aug 68, per Headquarters Seventh Air Force Special Order G-
2128, dated 3 Jun 69. 

 

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 notes that the Air Force Decorations 
Board (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. The applicant also provided a 
"Silver Star Draft" narrative justification signed by Major O., 


however it is not an original document but a computer-generated 
typed document, documenting the actions of Lt Col D. and Capt B. 
on 22 Aug 1968. 

 

In addition, SAFPC notes that since the actions of the applicant 
on 22 Aug 68 were similar to those of Col D., they concur with 
the decision of the AFDB and find that the applicant’s actions 
on 22 Aug 68 were appropriately recognized by his previous award 
of the DFC. In addition, at the time of this event, 
Headquarters Pacific Air Forces would have had all relevant 
information to consider the applicant for the SS. 

 

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 (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. 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-2012-01645 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 5 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