RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2012-03234
COUNSEL: NONE
HEARING DESIRED: NO
________________________________________________________________
THE APPLICANT REQUESTS THAT:
He be awarded the Air Force Commendation Medal (AFCM).
________________________________________________________________
THE APPLICANT CONTENDS THAT:
He earned the AFCM; however, it is not reflected on his DD Form
214, Report of Separation from Active Duty, issued in
conjunction with his 16 May 75 separation.
His airman performance report (APR) closing 29 May 73 validates
his recommendation for the AFCM during this period.
The applicants complete submission, with attachments, is at
Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
Based on the available record, the applicant was discharged
effective 16 May 75. He was credited with seven years, one
month, and one day of active duty service, including one year
and nine months of foreign service.
The applicants APR rendered for the period, 28 May 72 through
27 May 73 reflects that he was recommended for award of the AFCM
during this period.
His records will be administratively corrected to reflect award
of the Presidential Unit Citation (PUC), the Republic of Vietnam
Gallantry Cross, with Palm (RVNGC, w/P), and the Vietnam Service
Medal, with One Bronze Service Star, (VSM, w/1BSS).
________________________________________________________________
THE AIR FORCE EVALUATION:
AFPC/DPSID recommends denial. Official documentation verifying
the applicant was awarded the AFCM could not be located. All
administrative avenues have not been exhausted for a retroactive
request for award of the Air Force Commendation Medal. For a
completed package, the following information should be included:
a signed recommendation from someone with firsthand knowledge of
the act or achievement, eyewitness statements attesting to the
act(s) of outstanding meritorious achievement or service
performed, sworn affidavits, certificates, and any other related
documentation; a referral by a Member of Congress, and a
proposed citation.
The complete AFPC/DPSID evaluation, with attachment, is at
Exhibit C.
________________________________________________________________
APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the
applicant on 9 Nov 12 for review and response. 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 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 to warrant
awarding the AFCM. After thoroughly reviewing the evidence of
record and noting the applicants contention, we are not
persuaded that his records should be corrected to show that he
is a recipient of the AFCM. Although the applicants APR,
closing 29 May 73, confirms that he was recommended for the
AFCM, the applicants records and the documentation he has
provided in support of his appeal, do not substantiate the
recommendation was approved. In view of this and since the
applicant has not provided a reconstructed recommendation
package for us to consider, we find that he has failed to meet
his burden of establishing an error or injustice in his records
to warrant awarding the AFCM. Therefore, in the absence of
evidence to the contrary, we find no basis to recommend granting
the relief sought in this application.
________________________________________________________________
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.
________________________________________________________________
The following members of the Board considered AFBCMR Docket
Number BC-2012-03234 in Executive Session on 9 May 13, under the
provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 6 Jul 12, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPSID, dated 3 Nov 12, w/atch.
Exhibit D. Letter, SAF/MRBR, dated 9 Nov 12.
Panel Chair
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