RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:					DOCKET NUMBER:  BC-2012-05473
							COUNSEL:  NONE
 							HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1. His DD Form 214, Armed Forces of the United States Report of
Transfer or Discharge, issued in conjunction with his separation on 21 February 1973 be corrected to reflect the following:

a. Foreign service in Vietnam and Laos.  

b. Award of the Purple Heart (PH). 

c. Award of the Air Medal (AM). 

d. Award of Vietnam Service Medal (VSM) with six Service Stars.

e. Award of the Vietnam Campaign Medal (VCM) with six devices.  

f. Award of the Air Force Outstanding Unit Award (AFOUA), with
Valor, with two Bronze Oak Leaf clusters, Republic of Vietnam Gallantry Cross (RVGNC) with Palm, and the Small Arms Expert Marksmanship ribbon (SAEMR). (Administratively Corrected). 
     
2. His general discharge (under honorable conditions) be upgraded to honorable.  

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APPLICANT CONTENDS THAT:

He participated in classified missions to Vietnam and Laos and was wounded in Laos where he received treatment, to include a blood transfusion, for a gunshot wound.  He subsequently contracted hepatitis and was hospitalized in a civilian hospital in Thailand.  

He does not know if he is eligible for an AM or PH for service in Vietnam or Laos.  His unit was recognized with the Outstanding Unit Citation with Valor three times, the AFOUA with Combat “V” device, the RVNGC with Palm and the VCM with six devices.  

His general (under honorable conditions) discharge for a diagnosis of a personality disorder was not legitimate. 

In support of his request, the applicant provides a personal statement, copies of his DD Form 214, medical records and various other documents associated with his request.

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

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STATEMENT OF FACTS:

The applicant served on active duty from 1 October 1969 to      21 February 1973 and received a general (under honorable conditions) discharge.   

The applicant’s available service records reflect he served in  Udorn, Republic of Thailand, but there is no official documentation to show he served in Vietnam or Laos.

On 12 January 1973, the applicant was notified by his commander that he was recommending his discharge from the Air Force.  The reason for this action was the applicant was diagnosed with a character and behavior disorder, specifically, an antisocial personality, with passive-aggressive tendencies.  

Additionally, his military service records include Article 15, reduction in grade, referral Enlisted Performance Reports and letters of counseling.   

On 21 February 1973, the applicant received a general (under honorable conditions) discharge in the grade of airman first class (E-3).  He served 3 years, 4 months and 21 days on active duty.  

The PH is awarded to members of the United States Armed Forces who have been wounded, killed, or who have died or may hereafter die of wounds received in action against an enemy of the United States or opposing force as a result of an act of any such enemy or opposing armed force, an international terrorist attack or during military operations while serving as part of a peacekeeping force.  A wound for which the award is made must have required treatment, not merely examination, by a medical officer.  Additionally, treatment of the wound shall be documented in the service member’s medical record.  Award of the PH may be made for wounds treated by a medical professional other than a medical officer, provided a medical officer includes a statement in the service member’s medical record that the extent of the wounds were such that they would have required treatment by a medical officer if one had been available to treat them.  

The AM may be awarded to any person who, while serving in any capacity with the United States Armed Forces, subsequent to      8 September 1939, distinguishes himself or herself by meritorious achievement while participating in an aerial flight.  The AM may be awarded for combat or noncombat action in recognition of single acts of valor, heroism, or merit while participating in aerial flight.  Additionally, it may be conferred for sustained meritorious achievement with distinction in the performance of duties involving aerial flight.  

On 22 August 2013, the applicant was afforded the opportunity to provide information pertaining to his activities since leaving the service.  In response to the request, the applicant provides a personal letter.  The applicant states that he has led a productive life, has been married for over 25 years, has raised two children and has owned his own construction company since 1978.  His health has deteriorated and he has stage 4 cirrhosis of the liver, Agent Orange, autoimmune hepatitis and has a life expectancy of   4 to 10 years.  He has never been in trouble with the law nor has he been convicted of anything more than a traffic ticket.  He was in the Air Force for three years, four months and twenty days and served honorably until he was disciplined for failing to report for a haircut in a timely manner.  The applicant requests propriety and clemency for his discharge upgrade to honorable.  In 1971 and 1972, he was injured twice and requested a medical evaluation of his back.  As a result, he was accused of malingering, was offered a general discharge and was referred for a psychiatric evaluation.  He never met or consulted with the psychiatrist who diagnosed him with an antisocial personality disorder.  The diagnosis was to quickly facilitate his separation from the military and was arbitrary.  


In lieu of the FBI background check, he provides a copy of his Washington State Concealed Weapons Permit showing he has been through a Law Enforcement Support Agency (LESA) check as recently as 22 August 2012.  His fingerprints were submitted at the time of the license renewal.  Due to his illness, he is substantially housebound and can no longer drive in an urban environment to complete the FBI check to meet the 30 day response suspense.  

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AIR FORCE EVALUATION:

AFPC/DPAPP recommends denial of the applicant’s request to amend his DD Form 214 to reflect service in Vietnam and Laos.   DPAPP states that a review of the applicant’s military service records and documentation submitted failed to substantiate any foreign service time in Vietnam or Laos.   

The complete DPAPP evaluation is at Exhibit C.

AFPC/DPSID recommends denial of the applicant’s request for award of the PH.   DPSID states they were unable to locate official documentation the applicant was awarded the PH.  The PH Review Board has the authority (on behalf of the Secretary of the Air Force), to determine a veteran’s award of the PH. Each request is considered based on the policies and criteria in use at the time the veteran was injured, and the determination is dependent on the documentary evidence presented.  In order to present the applicant’s request to the PH Board, a detailed personal account of the circumstances surrounding the applicant’s injury, to include specifics as to how the injury occurred, exact date of the injury, unit of assignment and the rank held at the time are required to be submitted.  Furthermore, medical documentation to substantiate medical treatment received is required and the injury must have been a direct result of the enemy and meet the PH criteria.  

DPSID recommends denial of the applicant’s request for award of the AM.  Retroactive recommendations for award of the AM for veterans beyond the two year time limitation may be submitted in accordance with Title 10 United States Code (USC) 1130.  The law allows for the submission of award recommendations without regard to any previously imposed time constraints for submission if referred by a Member of Congress and should include a reconstructed award recommendation, narrative citation of actions for which the member is being recognized and eyewitness statements attesting to the act of valor or service performed.  DPSID states that the applicant has not provided justification or supporting documentation that reflects he was eligible for award of the AM nor has he provided evidence of an error or injustice.  To grant the applicant relief would be contrary to the criteria established by the Department of Defense (DoD) Manual 1348.33, Manual of Military Decorations and Awards: DoD Service Awards, Campaign, Expeditionary and Service Medals.  

DPSID recommends denial of the applicant’s request for award of the VSM with a total of six Service Stars as the applicant is credited with participation during five Vietnam Campaigns.  

DPSID recommends denial of the applicant’s request for award of six devices to the VCM.  Devices to include those denoting multiple awards are not authorized for the VCM. 

Upon conclusion and final determination by the Board, DPSID will administratively correct the applicant’s records to show award of the AFOUA with Valor and two Bronze Oak Leaf clusters, VSM with one Silver Service Star, SAEMR, RVNGC with Palm and the VCM.  

The complete DPSID evaluation is at Exhibit D.  

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APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

He has no means to substantiate an award for a PH or an AM but volunteered for Operation RUSTIC and provides four items as evidence.  

He was diagnosed with hepatitis 89 days after his gunshot wound and the Veterans Administration accepts he was in Vietnam for purposes of presumptive exposure to Agent Orange which is recognized as being from direct exposure to blood or blood products even though not documented.  

He requests that his general (under honorable conditions) discharge be upgraded to honorable.  His service to his country was honorable in all respects and when he returned from two years of service in remote and isolated assignments, he suffered from Post-traumatic Stress Syndrome (PTSD); however, he was discharged for a personality disorder ascribed to a failed romantic relationship.  At no time, did he bring dishonor to the Air Force.  

The applicant’s complete response is at Exhibit F. 

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  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.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  After a thorough review of the available evidence and the applicant’s complete submission, we find no evidence that his records should be corrected to show he was awarded the PH, AM, VSM with six Service Stars.  As such, with the exception of the awards that will be administratively added to his records, he is not entitled to any additional awards; therefore, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Regarding his request to upgrade his discharge to honorable, we found no indication that the actions taken to effect his discharge were improper or contrary to the provisions of the governing regulations in effect at the time, or that the actions taken against the applicant were based on factors other than his character and behavior disorder.  Having found no error or injustice with regard to the actions that occurred while the applicant was a military member, we conclude that no basis exists to grant favorable action on his request. In the interest of justice we considered upgrading the discharge on the basis of clemency; however, we do not find sufficient evidence to compel us to recommend granting the relief sought on that basis.   We are not unmindful or unappreciative of his service to his Nation.  However, in the absence of persuasive evidence to the contrary, we find no basis to recommend favorable consideration of his application.

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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.

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The following members of the Board considered AFBCMR Docket Number BC-2012-05473 in Executive Session on 15 October 2013, under the provisions of AFI 362603:

	  , Panel Chair
	  , Member
	  , Member

The following documentary evidence was considered:

Exhibit A.  DD Form 149, undated, w/atchs.
Exhibit B.  Applicant's Military Service Records.
Exhibit C.  Letter, AFPC/DPAPP, dated 23 Jan 2013.
Exhibit D.  Letter, AFPC/DPSID, dated 25 Mar 2013.
Exhibit E.  Letter, SAF/MRBR, dated 20 Apr 2013.
Exhibit F.  Letter, Applicant, dated 10 May 2013, w/atchs.
Exhibit G.  Letter, AFBCMR, dated 22 Aug 2013. 
Exhibit H.  Letter, Applicant, dated 23 Aug 2013.




							  
									Panel Chair




 

 

 

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