RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER: BC-2012-05393
XXXXXXX	COUNSEL:  NONE
		HEARING DESIRED:  YES

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  He be entitled to the Legion of Merit (LOM).

2.  He be entitled to the Small Arms Expert Marksmanship Ribbon 
(SAEMR).

3.  He be entitled to the Air Force Combat Action Medal (AFCAM). 

4.  He be entitled to the Presidential Unit Citation (PUC).  
(Administratively Corrected)

5.  He be entitled to the Republic of Vietnam Gallantry Cross 
with Palm (RVNGC w/P). (Administratively Corrected)

6.  He be entitled to the Air Force Outstanding Unit Award with 
Valor(AFOUA w/V). (Administratively Corrected)

________________________________________________________________

APPLICANT CONTENDS THAT:

His unit in Vietnam was awarded the aforementioned awards and he 
did not receive them upon his discharge from active duty.

In support of his request the applicant provides a copy of his 
DD Form 214, Armed Forces of the United States Report of 
Transfer or Discharge, and various other documents associated 
with his request.

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

________________________________________________________________

STATEMENT OF FACTS:

The relevant facts pertaining to this application are described 
in the letter prepared by the Air Force office of primary 
responsibility at Exhibit C.

________________________________________________________________


AIR FORCE EVALUATION:

AFPC/DPSID recommends denial of the applicant’s request for 
entitlement to the LOM, SAEMR and the AFCAM.  DPSID states that 
the LOM is governed by Executive Order 9260, which authorizes 
the President of the United States to award the LOM to any 
member of the United States Armed Forces and to any member of 
the armed forces of friendly foreign nations who has 
distinguished himself or herself by exceptionally meritorious 
conduct in performing outstanding services after 8 Sep 1939.  
There is a lack of official documentation in his official 
military personnel records verifying he was recommended for and 
awarded the LOM.  Furthermore, he has not provided justification 
or supporting documentation that reflects he was eligible for 
award of the LOM nor did he provide evidence of an error or an 
injustice.

The SAEMR is awarded to all Air Force service members who, after 
1 Jan 1963, qualify as "expert" in small arms marksmanship with 
either the M-16 rifle or issue handgun.  DPSID was unable to 
locate documentation verifying the applicant qualified as 
"expert" in the aforementioned weapons.  

With regard to his request for the AFCAM, DPSID states that on 
15 Mar 2007, the Secretary of the Air Force approved 
establishment of the AFCAM to recognize any military member of 
the Air Force (airman basic through colonel) who actively 
participated in combat (ground to air).  The AFCAM may be 
awarded for qualifying service from 11 Sep 2001 to a date to be 
determined.  Retroactive awards prior to 11 Sep 2001 are not 
authorized.  He was discharged from active duty on 6 Jan 1970, 
rendering him ineligible for the AFCAM.

DPSID was able to verify the applicant's entitlement to the PUC, 
AFOUA w/v, Vietnam Service Medal with three Bronze Service Stars 
(VSM w/3 BSS), and the RVNGC w/P.  Upon the final board 
decision, administrative correction of the applicant's official 
military personnel record will be completed by AFPC/DPSOY.

The complete DPSID evaluation with attachments, is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 23 May 2013, a copy of the Air Force evaluation was forwarded 
to the applicant for review and comment within 30 days.  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.  In this 
respect, we note the AFCAM was not established until 15 Mar 2007 
and retroactive awards prior to 11 Sep 2001 are not authorized.  
In view of the applicant’s 6 Jan 1970 separation, he is 
ineligible for the AFCAM.  With regard to the SAEMR, he provides 
no evidence to demonstrate that he ever qualified expert with 
either the pistol or rifle.  In support of his request for the 
LOM, the applicant provides a copy of 1969 special order 
referencing award of the LOM; however, the recipient’s 
identifying information, i.e., name and social security number, 
are missing from the order.  In view of this, we do not find 
this evidence sufficient to warrant awarding him the LOM.  We 
also note the OPR has administratively corrected the applicant’s 
records to reflect his entitlement to the PUC, RVNGC w/P, and 
AFOUA w/V.  However, we find that he has failed to sustain his 
burden of substantiating the existence of an error or an 
injustice in his records regarding the remainder of his 
requests.  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.  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 15 Aug 2013, under the provisions of AFI 
36-2603:

    , Panel Chair
    , Member
    , Member

The following documentary evidence was considered in AFBCMR BC-
2012-05393:

    Exhibit A.  DD Forms 149, dated 14 Nov 2012, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPSID, dated 25 Jan 2013, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 23 May 2013.




								
								Panel Chair





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