RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER: BC-2013-00159
XXXXXXX	COUNSEL:  
		HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  He be entitled to the Bronze Star Medal (BSM).

2.  He be entitled to the Purple Heart (PH).

3.  His records be corrected to reflect his service dates and 
locations.

4.  He be entitled to the Vietnam Service Medal with two Bronze 
Service Stars(VSM w/2 BSS). (Administratively Corrected)

5.  He be entitled to the Vietnam Campaign Medal (VCM). 
(Administratively Corrected)

________________________________________________________________

APPLICANT CONTENDS THAT:

Before he left Vietnam, his commander informed him he was going 
to be awarded two medals when he returned to the United States. 
He was advised that he may have declined the BSM and the PH.

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; AF Form 899, Request and Authorization 
for Permanent Change of Station and various other documents 
associated with his request.

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

________________________________________________________________

STATEMENT OF FACTS:

In a 5 Apr 2013 memorandum to the applicant, AFPC/DPSIPV 
clarified how service dates are recorded on the DD Form 214.  
Specifically that the amount of time at each individual 
assignment location is not authorized to be recorded on this 
form. 

AFPC/DPSID was able to verify the applicant's entitlement to the 
VSM w/3 BSS, the VCM and the Republic of Vietnam Gallantry Cross 
with Palm (RVNGC w/P) during his service from 23 Aug 1966 to 
21 Aug 1970 and were not reflected in his records.  Upon the 
final Board decision, administrative correction of the 
applicant's official military personnel record will be completed 
by AFPC/DPSOR.

In accordance with AFM 900-3, during the period in question, the 
PH was awarded for wounds received in action against an enemy, 
or as a direct result of an act of any enemy, opposing armed 
force, or hostile foreign force.  For the purpose of considering 
award of the PH, a wound was defined as an injury to any part of 
the body from an outside force or agent.  A physical lesion was 
not required, provided the concussion or other form of injury 
received was due to direct enemy, opposing armed force, or 
hostile foreign force action.

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSID recommends denial of the applicant’s request for 
entitlement to the BSM and the PH.  DPSID states that they were 
unable to locate any official documentation verifying the 
applicant was recommended for or awarded the BSM. Furthermore, 
there is no documentation to substantiate he received an injury 
as a result of direct enemy action and was recommended for or 
awarded the PH.  Retroactive recommendations for awards for 
retirees/veterans beyond the two year time limitation may be 
submitted in accordance with Title 10 USC 1130.  The law allows 
for the submission of award recommendations (and the upgrading 
of previously approved awards) without regard to any previously 
imposed time constraints for submission if referred by a member 
of Congress.  Moreover, to grant the applicant relief would be 
contrary to DoDM 1348.33, Manual of Military Decorations and 
Awards.

The BSM is awarded to a person in any branch of the military 
service who, while serving in any capacity with the Armed Forces 
of the United States after 6 Dec 1941, shall have distinguished 
himself by heroic or meritorious achievement or service, not 
involving participation in aerial flight, in connection with 
military operations against an armed enemy.  The award 
recognizes acts of heroism performed in ground combat if they 
are of lesser degree than that required for the Silver Star.  It 
also recognizes single acts of merit and meritorious service if 
the achievement or service is of a lesser degree than that 
deemed worthy of the Legion of Merit; but such service must have 
been accomplished with distinction.

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 a 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 and/or health 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 complete DPSID evaluation with attachment, is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 14 Apr 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 agree with the opinion and recommendation of the Air 
Force Office of Responsibility (OPR) and adopt its rationale as 
the basis for our conclusion the applicant has not been the 
victim of an error or injustice.  We also note the OPR will 
administratively correct the applicant’s records to reflect his 
entitlement to the VSM w/3 BS, the VCM and the RVNGC w/P.  
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.

________________________________________________________________

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 26 Sep 2013, under the provisions of AFI 
36-2603:

    , Panel Chair
    , Member
    , Member

The following documentary evidence was considered in AFBCMR BC-
2013-00159:

    Exhibit A.  DD Forms 149, dated 3 Jan 2013, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPSID, dated 25 Mar 2013, w/atch.
    Exhibit D.  Letter, SAF/MRBR, dated 14 Apr 2013.




								
								Panel Chair




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