RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-00910
	XXXXXXX	COUNSEL:  NONE
		HEARING DESIRED:  NOT INDICATED

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THE APPLICANT REQUESTS THAT:

He be awarded the Distinguished Flying Cross with One Oak Leaf 
Cluster (DFC w/1OLC) and additional Air Medals (AMs).

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THE APPLICANT CONTENDS THAT:

He flew 57 missions during World War II (WWII) and was told that 
he should have received a DFC, w/1OLC and more oak leaf clusters 
to his AMs for missions in Europe.

In support of his appeal, the applicant provides copies of his 
honorable discharge order and enlistment record.

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

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STATEMENT OF FACTS:

On 17 May 45, the applicant was honorably discharged from active 
duty in the grade of staff sergeant (SSgt).  He was credited 
with 4 years, 5 months, and 19 days of active duty service.  

The applicant’s Enlisted Record of Service reflects that he was 
awarded the DFC and the AM, with Three Oak Leaf Clusters 
(AM, w/3OLCs).

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THE AIR FORCE EVALUATION:

AFPC/DPSID recommends denial, stating in part, that the 
applicant was previously given guidance in 1998 to assist in the 
process of requesting the DFC, w/1OLC and additional AMs.  On 
22 Apr 04, his United States (US) senator was notified that the 
applicant’s official military personnel record had been 
destroyed.  The applicant has not exhausted all avenues of 
administrative relief.  He was provided guidance in 1998 and 
never provided DPSID with the documentation necessary to 
reasonably consider his request to include a recommendation from 
someone with firsthand knowledge, a proposed citation, and 
eyewitness statements.  The applicant has not provided any 
official documentation to verify he was recommended for or 
awarded the DFC, w/1OLC or additional AMs.  Additionally, he has 
not provided justification or supporting documentation, nor did 
he provide evidence of an error or injustice.  To grant the 
applicant relief would be contrary to the DoDM 1348.33.

The applicant made similar requests to DPSID in 1996 and in 
1997.  On 20 Jan 98, DPSID gave the applicant the 1996 National 
Defense Authorization Act guidance along with a decoration 
checklist to assist him with his request.  In Apr 04, the 
applicant again made a request through his US senator; however, 
it does not appear that he provided the requested 
recommendations, sworn affidavits, certificates or any 
additional documentation to verify his request.  In the response 
letter, his US senator was informed that the applicant's 
military personnel record had been destroyed in the National 
Personnel Center fire of 1974, and there was insufficient 
documentation to process the request.  There was no official 
documentation provided, by the applicant, to assist with the 
current request.  

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

The AM may be awarded to any person who, while serving in any 
capacity with the US Armed Forces, subsequent to 8 Sep 39, 
distinguishes himself or herself by meritorious achievement 
while participating in an aerial t1ight.  The AM may be awarded 
for combat or non-combat action in recognition of single acts of 
valor, heroism, or merit while participating in an aerial 
flight.  Additionally, it may be conferred for sustained 
meritorious achievement (distinction) in the performance of 
duties involving aerial flight.

The complete DPSID 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 15 Aug 13 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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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 agree with the opinion and recommendation 
of the Air Force OPR and adopt its 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 the applicant 
provide additional documentation to substantiate his claim, 
e.g., eyewitness statements, copies of orders for the previously 
awarded AMs to make further determination if he had already been 
awarded the AM for the same period, or in fact, if he is 
entitled to additional awards.  In view of the above and 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-2013-00910 in Executive Session on 9 Jan 14, under the 
provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, undated, w/atchs. 
    Exhibit B.  Applicant's Available Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPSID, dated 1 Jul 13.
    Exhibit D.  Letter, SAF/MRBR, dated 15 Aug 13.




                                   Panel Chair