RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-04231
            INDEX NUMBER:  107.00
      XXXXXXX    COUNSEL:  Fred L. Bauer

      XXXXXXX    HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be awarded the Distinguished Service Medal (DSM) for the period  21
Jul 93 to 1 Oct 97.

He be awarded the Legion  of  Merit  (LOM)  in  conjunction  with  his
retirement from the Air Force effective 1 Oct 98.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In a four-page brief of counsel, with attachments, applicant’s counsel
states that the applicant’s current request  is  a  follow-on  to  his
previous appeal granted by the Board on 2 Apr 02.

The AFBCMR directed that an Article 15 given to the applicant  be  set
aside and “all rights, privileges, and property of which he  may  have
been deprived be restored.”  Granting the applicant the two  requested
decorations is consistent with the Board’s recommendation.

The applicant’s performance  of  duty  and  accomplishments  meet  the
standards required by 10, USC, Section 1121 and AFI 36-2803.   Counsel
attaches a copy of a recommendation  for  award  of  the  Defense  DSM
prepared  on  the   applicant   by   his   former   supervisor.    The
recommendation was put on hold due to the investigation of the actions
for  which  the  applicant  received  an  Article  15  and  the  Board
determined should be set aside.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant retired in the grade of colonel (O-6) from the Air Force
Reserves effective 12 Aug 03.  He had a total of 26 years,  2  months,
and 26 days of satisfactory service.  During his career the  applicant
was awarded the Air Force Commendation Medal, the Meritorious  Service
Medal with one oak leaf cluster, the Defense Superior  Service  Medal,
and the Joint Service Commendation Medal.

On 2 April 2002, the AFBCMR considered  and  granted  the  applicant’s
request to set aside an Article 15 he received on    8 May 98 (Exhibit
B).

_________________________________________________________________

AIR FORCE EVALUATION:

ARPC/DPS recommends denial of the applicant’s  appeal.   Applicant  is
not advocating that his awards were lost or misrouted,  but  were  not
submitted due to “political considerations.”  They indicate that  they
are not authorized to direct a supervisor to submit an individual  for
an award or decoration and that the applicant must initiate submission
through his original chain of command.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s  counsel  responded  to  the  Air  Force  evaluation.   He
discusses the authority of the Board to grant the applicant’s requests
although ARPC/DPS states that it lacks the authority.  Counsel  states
that the nomination for the DSM was placed  into  the  system  by  the
applicant’s supervisor and approved through the next level before  the
Command Assistant Vice Commander  improperly  pulled  the  nomination.
Counsel opines that the documentation in the applicant’s case in which
the Board set aside his Article 15 shows that he earned the DSM.

Counsel states that the applicant was not submitted for an LOM because
it would have been an exercise in futility given that  the  nomination
for the DSM had been previously pulled.  He opines that even though  a
recommendation was not submitted, a review of the applicant’s  records
show that he deserves the medal.  He further opines that colonels with
far less to their credit have  received  LOMs  at  the  end  of  their
careers.

Counsel states that it is important to note that only the  applicant’s
discredited Command Assistant Vice Commander says that  the  applicant
didn’t deserve the DSM and LOM.  In support of the applicant’s request
for the DSM, counsel provides a  letter  from  his  former  supervisor
giving background on his submission of the applicant for the DSM.

Counsel’s complete response, with attachment, is at Exhibit E.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by  existing  law
or regulations.

2.  The application was  not  timely  filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.  Sufficient relevant evidence has been presented to demonstrate  the
existence of error or injustice regarding the applicant’s  request  for
award of the Distinguished Service Medal (DSM).  Although the applicant
has asked for award of the DSM and Legion of Merit (LOM), regarding the
LOM, we do not find sufficient evidence that the applicant has been the
victim of an error or injustice.  We take this  position  with  careful
consideration of counsel’s assertion that  if  the  applicant  had  not
received the Article 15 in May 1998, which the Board  set  aside  in  a
previous appeal action, he would have certainly been  awarded  the  LOM
upon his retirement, given his grade and years of exceptional  service.
We are not convinced of this.   Conversely,  we  find  several  factors
regarding the DSM that persuade us that the applicant was, likely,  the
victim of an injustice.  We note  that  an  actual  recommendation  was
prepared  and  placed  into  channels  by  the  applicant’s   immediate
supervisor at the time recommending him for the  Defense  Distinguished
Service Medal.  The  statement  submitted  by  the  applicant’s  former
supervisor also  persuaded  us  that  the  applicant  has  been  denied
appropriate recognition for his exceptional service during  the  period
of the award.  Although we cannot confirm that  the  applicant’s  award
was previously approved as asserted by counsel, we find  it  reasonable
that it may have been, given our review of the narrative justification.
 As such, we believe that the applicant should be given the benefit  of
the doubt and granted the award.  Further, in reaching our decision  to
award the applicant the DSM, we also took note of the Board’s  previous
decision to set aside the Article 15 imposed on him.  We note that this
Board lacks the authority  to  award  the  applicant  a  Department  of
Defense level Medal as he was previously recommended for,  but  believe
that the Air Force DSM  is  equally  appropriate.   Therefore,  in  the
interest of equity and  justice,  we  recommend  that  his  records  be
corrected as indicated below.

4.  The applicant's case is adequately documented and it has  not  been
shown  that  a  personal  appearance  with  or  without  counsel   will
materially add to our understanding of the issues involved.  Therefore,
the request for a hearing is not favorably considered.

_______________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of  the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show  that  he  was  awarded  the
Distinguished Service Medal for exceptionally  meritorious  service  as
Individual   Mobilization   Augmentee,   Air   Attaché,   attached   to
Headquarters Air Intelligence Agency, assigned for mobilization to  the
Defense Intelligence Agency, from 21 July 1993 to 1 October 1997.

_______________________________________________________________

The following members of the Board considered  Docket  Number  BC-2003-
04231 in Executive Session on 12 May 2004, under the provisions of  AFI
36-2603:

      Mr. David C. Van Gasbeck, Panel Chair
      Ms. Jean A. Reynolds, Member
      Mr. James A. Wolffe, Member

All  members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 1 Dec 03, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, ARPC/DPS, dated 5 Feb 04.
     Exhibit D.  Letter, SAF/MRBR, dated 13 Feb 04.
     Exhibit E.  Letter, Counsel, dated 10 Mar 04, w/atch.




                                   DAVID C. VAN GASBECK
                                   Panel Chair



AFBCMR BC-2003-04231


MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the
authority of Section 1552, Title 10, United States Code (70A Stat
116), it is directed that:

      The pertinent military records of the Department of the Air
Force relating to XXXXXXX, XXXXXXX, be corrected to show that he
was awarded the Distinguished Service Medal for exceptionally
meritorious service as Individual Mobilization Augmentee, Air
Attaché, attached to Headquarters Air Intelligence Agency, assigned
for mobilization to the Defense Intelligence Agency, from 21 July
1993 to 1 October 1997.




            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency