DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 10725-19 
Ref: Signature Date 

Dear 
 
This letter is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found that the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.
 
Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 31 March 2020.  The names and votes of the members of the panel will be furnished upon request.  Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board.  Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies, as well as the previously provided 6 February 2020 Advisory Opinion (AO). 

In 2008, while serving in the rank of First Class Petty Officer, you were recommended for, and were awarded, the Joint Service Commendation Medal with Combat “V”Device for exceptionally valorous achievement as a Military Working Dog Handler for a Joint Task Force in support of Operations Iraqi Freedom and Enduring Freedom from 9 October 2007 to 30 November 2007, and 1 December 2007 to 15 December 2007, respectively.  In 2018, an effort was initiated to upgrade your award to a Bronze Star Medal with Combat “V” and Extraordinary Heroism (EH). 

On 4 June 2019, the Navy Department Board of Decorations and Medals (NDBDM) considered your original award, and issued a determination for on EH as it pertained to your Joint Service Commendation Medal with Combat “V” Device.  The NDBDM determined, under the authority delegated by the Secretary of the Navy (SECNAV) per 10 U.S.C. § 8330 that, while your performance was fully deserving of the original award, the actions supporting its issuance did not constitute EH in the line of duty.  This determination is otherwise final and conclusive “for all purposes.” On 22 November 2019, the Secretary of the Navy Council of Review Boards (CORB) issued a letter in response to an inquiry from former Congressman, the Honorable , regarding your original award.  The CORB noted that under Department of Defense regulations, the upgrade of a previously approved decoration may only be considered upon presentation of “new, substantive, and relevant material evidence that was not available or known when the award was approved.” New information that “merely adds detail to what was in the original award nomination [such as these three statements] does not meet this ‘new and relevant’ requirement.” Nevertheless, the CORB reviewed the three purportedly new witness statements that were submitted in support of the upgrade, conveyed that the witness statements did not meet the “new and relevant” requirement, and determined that there was an insufficient basis for the upgrade. 

In your petition to the Board, you disagree with the finding that the an upgrade is not warranted, and, on your own behalf, request that the Joint Service Commendation Medal with Combat “V” Device be upgraded to a Bronze Star Medal with Combat “V” and EH. You provide a supporting package of information in conjunction with your application, and submit matters that were not included at the time of the original award or at the time of the earlier reviews.
 
As part of the review process, the NDBDM reviewed your request to the Board, considered the package you submitted in support of your upgrade request, and issued its 6 February 2020 AO.  The AO again determined that neither an upgrade to the award, nor the EH benefit, were warranted.  In its analysis, the NDBDM specifically noted: 

. . . a previously approved personal decoration (such as [your] JV) may only be reconsidered for upgrade if new, substantive, and relevant material evidence is presented that was not reasonably available [meaning it was known to exist, or could have been solicited, and submitted] when the original nomination was processed. These regulations further clarify that submission of new information that merely adds detail to what was already known will not meet the reconsideration standard [such as a witness rearticulating what he already stated, or additional witnesses bolstering what previous witnesses have already stated]. Nor will information that was reasonably available to the originator (and/or the chain of command at the time), but was simply not included in the nomination ­the presumption being that such information had not been deemed by the originator as sufficiently important or relevant to deciding the level of award. 

The AO also specifically noted the subjective, discretionary nature of the awards process:
 
. . . personal military decorations (PMDs) are discretionary honors conferred upon individuals in recognition of heroism or exceptionally meritorious achievement. As such, the decision whether to nominate an individual for a PMD, the recommendations of intermediate commanders, and the decision of the award approval authority as to which PMD is appropriate to recognize a given act or period of service, are matters of judgment. By Naval and military custom, such discretionary judgments by commanders and senior officials are presumed to have been made in good faith and with sufficient knowledge of the facts, and are considered final [emphasis added]. Applied to PMDs in particular, this finality adds legitimacy to the honor conferred, because it is not tentative and subject to change. Decisions of this kind are only reconsidered later if there was a significant omission or discrepancy of fact, or there is later proved some discriminatory bias or impropriety that affected the outcome. Subsequent office holders or commanders are not entitled to revisit the discretionary award decisions of their predecessors merely to substitute their own judgment for the judgment of those who duly exercised their discretionary authority at the time. To justify reconsideration, we must be in possession of material evidence the original decision makers did not have -evidence that reasonably would have had bearing on their decision about the appropriate level of award. Further, mere regret or misgivings by the commanders and officials involved in the original earlier decision has never been officially considered a valid basis for re-opening an award case. 

The AO was provided to you, and you were given 30 days in which to submit a response.  On 2 March 2020, you submitted a rebuttal to the AO’s determination.  In the rebuttal you disagree with the finding that the EH benefit and upgrade are not merited.  You refer to the opinions of two non-witness Medal of Honor recipients, and the opinions of two non-witness Senior Enlisted Advisors to the Chairman of the Joint Chiefs, who advocate on your behalf for both the upgrade and the EH benefit.  You also offer an explanation for the discrepancies in the dates that are reflected in your submissions, and contend that all of the original commanding officers for the period of the award have favorably endorsed your request.  You opine that upgrades to awards are somewhat standard within the special operations community, and that you had no part in initiating the change to your award in 2018, or in soliciting former Congressman Taylor.  You also contend that the NDBDM failed to appropriately consider your evidentiary submissions.
 
The Board, in its review of your entire application, carefully weighed all potentially mitigating factors in your case, including your contention that the matters you subsequently submitted were not properly considered. However, the Board substantially concurred with the AO for the reasons stated therein.  The Department defers to the special trust and confidence it has placed in its commanders’ and their award determinations, and will not disturb those determinations except under the most extraordinary circumstances, not present here.  And then, only in compliance with statute, policy, and naval tradition – the exception to which is also inapplicable here.  The Board specifically considered all of the evidence you submitted in support of your request, including your battlefield maps, eyewitness statements, and letters of recommendation.  The Board carefully reviewed the information, and noted that the eyewitness accounts reflect your tremendous contributions, to include exposing yourself to direct enemy fire, engaging enemy fighters in defensive positions, and undoubtedly saving the lives of your teammates.  Your actions were, and are, commendatory, and every bit deserving of the highest joint service commendation available to you at the time of your service, under the circumstances of your service.  The Board also considered that you enjoy the support of your chain of command for the period of the award, and considered your assertion that attitudes regarding the level and quality of combat support rendered have changed significantly in the decade since your award period.  Your award was evaluated and awarded under the circumstances extant at the time of your award.  Your conduct was undeniably commendable.  It stands alone and is not to be subjectively compared to the conduct of others.  Even in consideration of your matters and information, and taking into account your response to the AO, under the totality of the circumstances, the Board determined that substantial evidence supports the Department’s issuance of your award, as awarded, and that your original award was issued without probable material error or injustice.  The Board found that the evidence submitted, specifically the witness statements, merited reconsideration, but, that even upon reconsideration, the original award was appropriate.  The Board noted that the narrative summary submitted in support of the original award stated that you engaged with the enemy, repeatedly exhibited complete disregard for your own safety, showed heroism before the enemy, and that your actions were critical to the missions’ success.  The Board determined that the information and evidence further corroborated known details of your tremendous bravery and actions, but did not establish that a change to your Joint Service Commendation Medal with Combat “V” Device is warranted. Accordingly, the Board determined that your commendation is well deserved, and that you failed to establish that any probable material error or injustice occurred in its award as awarded. Although it is understandable that you may disagree with the determination of these several levels of review, awards determinations are entrusted to the special trust and confidence of commanders and the Department, in their discretion, and a reasonable disagreement with those determinations does not constitute probable material error or injustice, let alone compel an alternative determination.  

It is regretted that the circumstances of your case are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon the submission of new matters, which will require you to complete and submit a new DD Form 149.  New matters are those not previously presented to or considered by the Board.  In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records.  Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice. 

Sincerely,