RECORD OF PROCEEDINGS 

 AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2012-03536 

 COUNSEL: NONE 

 HEARING DESIRED: NO 

 

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APPLICANT REQUESTS THAT: 

 

His original recommendation for award of the Silver Star (SS) 
for his actions on 19 May 68 be approved. 

 

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APPLICANT CONTENDS THAT: 

 

Although he received the Distinguished Flying Cross (DFC) for 
his actions, on 19 May 68, he believes the original 
recommendation for the SS, on him and Lieutenant Colonel M., 
should be approved. 

 

His professional competence, selfless devotion to mission 
accomplishment, and gallantry while under fire from multiple 
Surface-to-Air Missiles (SAMs) should be properly recognized. 

 

They incurred serious battle damage to their aircraft and 
destroyed the enemy missile site in the process. The original 
Silver Star recommendation was approved by higher headquarters 
as the Distinguished Flying Cross. 

 

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

 

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STATEMENT OF FACTS: 

 

On 19 May 68, the applicant distinguished himself, while 
participating in aerial flight as an F-105 Thunderchief pilot 
over North Vietnam. On that date, he was accomplishing SAM and 
radar directed gun suppression as a single aircraft for a flight 
of F-4's performing night armed reconnaissance in the pan-handle 
region north of the Demilitarized Zone (DMZ). Despite extensive 
night weather conditions, light provided only by exploding 
hostile antiaircraft shells, and a volley of three SAMs which 
caused serious damage to his aircraft, he successfully destroyed 
a hostile missile site and simultaneously provided threat 
warning information to the friendly aircraft. 

 


The applicant was awarded the DFC, with Second Oak Leaf 
Clusters, (DFC, w/2nd OLC) per Special Order G-2412, dated 
18 Jun 69. 

 

On 31 Aug 78, the applicant was honorably relieved from active 
duty in the grade of Lieutenant Colonel. He was credited with 
22 years, 3 months, and 16 days of active service for 
retirement. 

 

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THE AIR FORCE EVALUATION: 

 

AFPC/DPSI recommends denial; stating, in part, that the official 
documentation shows the applicant received award of the DFC, 
w/2nd OLC, for his actions on 19 May 68 and to award the Silver 
Star would be considered dual recognition. However, should the 
applicant wish to pursue an upgrade from the DFC to the Silver 
Star his request should be processed in accordance with Title 
10, USC, Section 1130. 

 

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

 

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APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: 

 

The applicant provided a sworn affidavit that the submitted 
recommendation was a true and exact copy of the original. 
Additionally, the only witness is deceased and that he has 
submitted his request to his member of Congress in accordance 
with the law. 

 

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

 

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ADDITIONAL AIR FORCE EVALUATION: 

 

SAFPC recommends denial, stating, in part, the applicant 
provides no additional documentation to support an upgrade of 
the DFC to the SS. At the time of this event, Headquarters 
Pacific Air Forces would have had all relevant information to 
consider the applicant for the SS. 

 

In addition, they note, the applicant provides an unsigned 
reconstructed recommendation for the SS. He does not provide any 
documentation that someone other than himself, who had knowledge 
of the event, and/or witness to the event is recommending him 
for the SS. Further, he does not provide the original 
recommendation for the SS, to validate the actual recommendation 
that Headquarters Seventh Air Force and Pacific Air Forces 
reviewed when making their decision to downgrade to the DFC. 


 

The complete SAFPC evaluation is at Exhibit F. 

 

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APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: 

 

The applicant reiterated his original contention as to why he 
believes his actions warranted award of the SS, especially, 
considering the other members he highlighted in his request, who 
is more deserving. 

 

The applicant’s complete response is at Exhibit H. 

 

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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 (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 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. We took notice 
of the applicant's complete submission in judging the merits of 
the case; however, the applicant’s case has undergone an 
exhaustive review by the SAFPC and we do not find the evidence 
provided sufficient to overcome its assessment of the case. 
Therefore, we agree with the opinions and recommendation of the 
SAFPC and adopt the rationale expressed as the basis for our 
conclusion that the applicant has not been the victim of an 
error or injustice. 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-2012-03536 in Executive Session on 2 Jul 13, under the 
provisions of AFI 36-2603: 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 5 Aug 12, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFPC/DPSI, dated 24 Sep 12, w/atchs. 

 Exhibit D. Letter, SAF/MRBR, dated 23 May 12. 

 Exhibit E. Letter, Applicant, dated 7 Jun 13, w/atchs. 

 Exhibit F. Letter, SAFPC, dated 3 Jun 13. 

 Exhibit G. Letter, SAF/MRBR, dated 4 Jun 13. 

 Exhibit H. Letter, Applicant, dated 9 Jun 13. 

 

 

 

 

 Panel Chair