RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2012-05531
	XXXXXXX	COUNSEL:  NONE
		HEARING DESIRED:  NO

________________________________________________________________

THE APPLICANT REQUESTS THAT:

He be awarded the Distinguished Flying Cross (DFC).

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THE APPLICANT CONTENDS THAT:

Through his Member of Congress, he should have been awarded the 
DFC for completing 10 combat missions during World War II 
(WWII).

On 29 Nov 43, while serving with the 339th Bombardment Squadron 
and the 96th Bombardment Group, his actions, of shooting down an 
enemy’s aircraft warrants award of the DFC.  During this mission 
his aircraft was heavily damaged.  Still in the tail gunner 
section, he began a 24,000 ft. free fall, which eventually led 
to him being severely injured, captured and becoming a Prisoner 
of War (POW). 

In support of his appeal, the applicant provides a personal 
statement; a statement from a friend; copies of several letters 
of support from his Members of Congress; newspaper clippings of 
eyewitness accounts, and various other supporting documents.

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

________________________________________________________________

STATEMENT OF FACTS:

The applicant is a former member of the Army Air Corps who 
served in the European Theatre of Operation from 7 Oct 43 to 
6 Jun 45, as an airplane armorer gunner 612.  He participated in 
the Air Offensive Europe campaign.  His WG AGO Form 53-55, 
Enlisted Record and Report of Separation, issued in conjunction 
with his 1 Dec 45 release from active duty, reflects that he was 
awarded the Purple Heart, Air Medal (AM), with One Oak Leaf 
cluster (1OLC), European-African-Middle Eastern (EAME) Ribbon, 
American Theater Ribbon, the Good Conduct Medal, and the WWII 
Victory Medal.  He was credited with one year, five months and 
five days of continental service and one year, eight months, and 
six days of foreign service.

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THE AIR FORCE EVALUATION:

AFPC/DPSID recommends denial, noting that the applicant has not 
exhausted all avenues of administrative relief.  Nonetheless, 
should the Board determine the applicant has exhausted all 
avenues of administrative relief, DPSID recommends denial based 
on the lack of official documentation in his official military 
personnel records verifying that he was recommended for and 
awarded the DFC.  Additionally, the applicant has not provided 
justification or supporting documentation that reflects he was 
eligible for award of the DFC nor did he provide evidence of an 
error or an injustice.  To grant award of the DFC would be 
contrary to the criteria established by Department of Defense 
Manual (DoDM) 1348.33.

The DFC is awarded to any officer or enlisted person of the 
Armed Forces of the United States who shall have distinguished 
her/himself in actual combat in support of operations by heroism 
or extraordinary achievement while participating in an aerial 
flight, subsequent to 11 Nov 18.

DPSID notes that while the applicant has provided his WD AGO 
Form 53-55, Congressional interest, and a statement of events by 
a family friend who contends he reviewed both the applicant's 
video documentary and 185 pages of combat reports from the 
National Archives, the package still requires a proposed 
citation, chain of command endorsement, an eyewitness statement, 
and a narrative signed by the recommending official.

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

The Secretary of the Air Force Personnel Council (SAFPC) 
recommends denial, stating, in part, while there is eyewitness 
testimony and evidence of the applicant riding in the wreckage 
and surviving the downing of his aircraft, there is no 
documentation in the record to support his involvement in 
shooting down the Me-210 and there is no documentation in the 
record that reflects the number of combat sorties he flew.  
Further, since the Enlisted Record and Report of 
Separation/Honorable Discharge lists an AM w/1OLC, the citation 
for the original award of the AM, and the citation for the OLC 
or other additional supporting documentation is needed to 
validate which missions were counted for the original award of 
the AM.

The complete SAF/PC evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

In a rebuttal response, a friend of the applicant submitted 
additional documents including, copies of 339th Bomb Squadron's 
Record of Missions which addresses SAFPC's concerns about the 
number of missions flown by the applicant.  The Record of 
Missions for tail gunners does not show his fifth mission 
(Mission 56 to Bremen); even though the record clearly shows he 
was shot down on that mission.  Unfortunately, the applicant is 
currently a patient at the DVA hospital and the citations for 
the AM w/OLCs cannot be located.  

To clarify the earlier assertion that "ten points" were needed 
for awarding of the DFC, this was based on the applicant’s 
recollection.  It should be noted, however, they have made every 
effort to educate themselves as to the criteria for awarding of 
the DFC and in assembling documentation that would satisfy the 
Review Board's requirements.  The primary resource was an 
official at the Air Force Historical Research Agency (AFHRA) 
treatise "DFC and AM Criteria in the Army Air Forces in World 
War II."  The evolution of the criteria was found to be 
confusing and conflicting, as they varied among commands and 
kept changing as the war progressed.  Indeed, AFRHA’s research 
indicated that the criteria were still undergoing review at the 
time of the action in which the applicant’s plane was shot down.  
SAFPC’s review states that the "criteria for award of the DFC in 
effect at the time of the applicant’s WWII service, while 
assigned to the 8th Air Force, were 25 bomber combat missions."  
However, that is not the sole criteria and individual acts of 
heroism were frequently cited as justification for awarding the 
DFC. 

While the "ten points" referenced in the applicant's request for 
review may have been a misstatement, it is their belief that his 
actions satisfy the fundamental criteria for awarding of the 
DFC: "heroism or extraordinary achievement in aerial flight."  
In his original submittal, the Board was asked to consider the 
"totality of the events" in evaluating the merits of his 
request.  Accordingly, they hope that deliberations not focus 
strictly on the issue of "points" and that consideration also be 
given to the applicant’s heroic actions during the air battle 
and ensuing events which were a direct result thereof. 

In support of his appeal, the applicant provides a letter from a 
family friend and copies of mission reports from his former 
unit.

The applicant’s complete response, with attachments, is at 
Exhibit F.

________________________________________________________________

THE BOARD CONCLUDES THAT:

1. The applicant has exhausted all remedies provided by existing 
law or regulations.  We note the Air Force Office of Primary 
Responsibility (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 over 65 years ago, i.e., 
to remove their required involvement and avoid the continued use 
of private relief bills, in order to effect 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, we do not find the evidence sufficient to 
override the rationale provided by the Air Force OPR and SAFPC.  
Therefore, we agree with the opinions and recommendations of the 
Air Force OPR and SAFPC and adopt their rationale as the basis 
for our conclusion that the applicant has not been the victim of 
an error or injustice.  We are not unmindful or unappreciative 
of the applicant’s service to his Nation.  Should he provide 
additional documentation to substantiate his claim, e.g., 
eyewitness statements, copies of previously awarded AMs, we 
would be willing to reconsider his petition.  In view of the 
above and in the absence of persuasive 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-2012-05531 in Executive Session on 7 Nov 13, under the 
provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 Sep 12, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPSID, dated 25 Jan 13, w/atchs.
    Exhibit D.  Letter, SAFPC, dated 7 Oct 13.
    Exhibit E.  Letter, SAF/MRBC, dated 9 Oct 13.
    Exhibit F.  Letter, Applicant’s Friend, dated 16 Oct 13,
                w/atchs.




                                   Panel Chair
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