ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00540-2
	INDEX CODE:  107.00	
		COUNSEL:  

		HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

In the applicant’s request for reconsideration, he requests he be awarded the Legion of Merit (LOM) award.

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STATEMENT OF FACTS:

The applicant was relieved from his Reserve assignment effective 1 July 2002 and transferred to the Retired Reserve Section awaiting pay in the grade of Colonel.  He was credited with 30 years and 29 days of satisfactory Federal service.  Based on his date of birth he will be eligible to receive retired pay on 11 June 2010.

The applicant previously submitted a request to be awarded the Legion of Merit (LOM) award.  On 23 June 2004, Air Force Board for Correction of Military Records (AFBCMR) considered and denied the applicant’s request to be awarded the LOM.  For an accounting of the facts and circumstances surrounding the applicant's request, and the rationale for the earlier decision by the Board, see the Record of Proceedings, with attachments, at Exhibit H.

On 24 August 2004, the applicant’s counsel submitted a request for reconsideration, contending that the Board erred in its decision to deny the applicant’s request for the LOM (Exhibit I).  

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AIR FORCE EVALUATION:

HQ USAF/REP states there were no violations of the provisions of AFI 36-2803, Air Force Awards and Decorations Program, in the processing of the applicant’s retirement decoration.

REP notes the referenced instruction provides very basic guidance concerning which decorations may be awarded upon the occasion of an individual’s retirement, and is not intended to be, nor should it be used as, an all-inclusive “checklist” of minimum requirements needed to “earn” specific awards.  REP affirms the decision authority regarding the appropriate decoration to award an individual remains within that person’s chain of command as it exists at the time of award submission, not the AFI.  REP’s complete evaluation is at Exhibit J.

HQ USAF/JAA recommends the Board’s decision be upheld.  JAA states there is no evidence to suggest that the Board used an inappropriate standard when it previously denied the applicant’s request.  They note the standard for review is whether the Board’s decision was arbitrary, capricious, and contrary to law, and state the Board’s previous decision that the applicant failed to prove the existence of a material error or injustice is substantiated.  JAA explains AFI 36-2803, paragraph 2.2.6 clearly states, “no individual is automatically entitled to an award upon completion of an operational TDY or departure for an assignment.”  JAA notes the applicant’s primary argument is that no reasonable person could disagree with his contention that his military record warrants receipt of no less than the LOM. They opine that this is patently incorrect.  

JAA notes the applicant’s commander signified in his memo that he had reviewed the applicant’s military records, and, after consultation with the applicant’s previous commander, stood by his decision that the applicant’s record did not justify the higher award.  JAA explains the fact that other general officers may have awarded the LOM does not by itself necessitate the Board overturning the decision of the applicant’s commander; however, the crucial point is that determining the appropriate level of award to be given to any member is a matter of discretion.  JAA remarks there is no evidence other than complete conjecture on the part of applicant’s counsel, that the decision of the applicant’s commander was based on inappropriate factors.

JAA notes the applicant has provided no evidence to attack his former commander’s integrity on this issue.  The applicant’s former commander reiterated that after the applicant submitted his AFBCMR petition, he reviewed the applicant’s records and determined than an MSM was still appropriate.  JAA opines that the applicant’s statement that his former commander was not impartial or was biased because the applicant was a member of the Air Force Reserves is likewise specious at best because there is no evidence to make such a conclusion.

JAA states that the applicant’s statement regarding “the Board’s use of a ‘compelling basis’ standard to approve his petition was inappropriate and therefore should be overturned,” is without merit.  JAA explains the word “compelling” is defined as “tending to convince or convert by or as if by forcefulness of evidence.”  This phrase does not suggest that the Board required the applicant to prove his case by a more exacting standard than required by law; rather it must be viewed in light of the report’s previous statement that the applicant present insufficient relevant evidence to “demonstrate the existence of error or injustice.”  JAA asserts it is apparent that the Board applied the proper legal standard, and the use of “compelling evidence” in its report refers to the applicant’s inability to prove the merits of his case.  JAA concludes they do not believe the Board must reconsider the applicant’s petition based on his latest assertions (Exhibit K).

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Having been provided the advisory opinions, the applicant’s counsel disagreed with the opinions of the Air Force and reiterates the initial contentions.  Counsel asserted the Board’s prior decision was arbitrary, capricious, and contrary to substantial evidence and to the applicable law (Exhibit M).

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THE BOARD CONCLUDES THAT:

1.  After again reviewing this application and the evidence provided in support of the appeal, we remain unpersuaded that the applicant, upon his retirement, should have been awarded the LOM award versus the MSM award.

2.  It is a well-established principle that regularity is presumed in the conduct of government officials and the burden for providing a showing of error or injustice rests with the applicant.  We have reviewed counsel’s recent submission, and note his allegations in regards to the findings of the Board’s prior decision; however, we were unable to find any evidence indicating that the applicant was the recipient of unfair or unjust treatment.  Our contention remains that the applicant’s commander made the appropriate decision to award the applicant the MSM; and therefore, we agree with the opinions and recommendations of the Air Force and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. 

3.  We have again considered the applicant’s request for a personal appearance and do not find the evidence presented indicates that such an appearance would materially add to our understanding of the issues raised in this case.  Therefore, the request for a hearing is denied.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probably 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 this application in Executive Session on 11 May 2005, under the provisions of AFY 36-2603:
The following documentary evidence was considered with AFBCMR BC-2004-00540:

Exhibit H.  Record of Proceedings, dated 14 Jul 2004, with
	Exhibits.
Exhibit I.  Counsel’s Letter, dated 25 Aug 2004, with	atchs.
Exhibit J.  HQ USAF/REP Letter, dated 13 Dec 2004.
Exhibit K  	HQ USAF/JAA Letter, dated 10 Jan 2005.
Exhibit L.  Letter, AFBCMR, dated 18 Jan 2005, with atchs.
Exhibit M.  Counsel’s Letter, dated 14 Feb 2005.