RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2004-00540
                                             INDEX CODE:  107.00
                                             COUNSEL:  None

                                             HEARING DESIRED:  Yes

________________________________________________________________

APPLICANT REQUESTS THAT:

He be awarded the Legion of Merit (LOM) award.
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APPLICANT CONTENDS THAT:

His record clearly supports the fact that he earned  and  should  have  been
awarded a retirement LOM based on the criteria and guidance given in AFI 36-
2803 paragraph 1., Table 1.1 (Note 5) - Retirement Award, and  that  it  was
an error that the award was not presented upon his retirement.

In support of his request,  the  applicant  has  submitted  a  statement  by
counsel elaborating on the applicant’s accomplishments,  seven  (7)  officer
performance reports, four (4) award citations, two (2)  support  letters,  a
board selection letter, an appointment letter, a letter  of  evaluation,  an
assignment recommendation, and a special order.   The  applicant’s  complete
submission, with attachments, is at Exhibit A.
________________________________________________________________

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 record reveals that on 13 September 1995  the  applicant  was  honorably
discharged from the Air National Guard and  transferred  to  the  Air  Force
Reserve for duty as an Individual Mobilization Augmentee (IMA).

Subsequent to the time he was promoted to the Reserve grade of  Colonel  and
received seven (7) Officer Performance Reports closing 15  August  1996,  15
August 1997, 15 August 1998, 28 June 1999, 14 January 2000,  15  June  2000,
and 15 June  2001  in  which  all  performance  factors  were  rated  “Meets
Standards.”

On 13 January 2000 the applicant was awarded the Meritorious  Service  Medal
(MSM) for outstanding noncombat meritorious service  during  the  period  15
September 1995 to 15 November 1999.

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the  letter  prepared  by
the appropriate office of the Air Force.  Accordingly, there is no  need  to
recite these facts in this Record of Proceedings.
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AIR FORCE EVALUATION:

HQ USAF/REPS recommends denial of the  applicant’s  request.   The  original
submission authority, HQ USAF/XOH, has  reviewed  the  complete  application
package.  XOH stands  by  the  decision  to  award  the  MSM  based  on  the
applicant’s leadership attributes, and further review of the  records.   The
website cited by the member for establishing criteria for LOMs  notes  “Upon
retirement after a long and distinguished career, liberal interpretation  of
award criteria can be  exercised  for  officers  serving  in  the  grade  of
colonel and above,  provided  the  most  recent  performance  warrants  such
consideration.”   AFI  36-2803,  Table  2.2  note   7,   states   “…Superior
performance  of  normal  duties  will  not  alone  justify  award  of   this
decoration” and paragraph 2.3.4. notes “…Prepare the  decoration  using  the
most  recent  period  of  service….”   The  guidance  clearly  provides  the
recommending official with direction that would allow for  consideration  of
recent  performance  for  establishing  the  level  of  the  decoration  for
retirement purposes.

A complete copy of the Air Force evaluation is attached at Exhibit C.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 9 April 2004, a copy  of  the  Air  Force  evaluation  was  forwarded  to
counsel for  review  and  response  within  30  days.   On  15  April  2004,
applicant’s counsel submitted a request to temporarily  withdraw  the  case.
On 22 April 2004, a letter was forwarded  to  counsel  concurring  with  his
request to temporarily withdraw the case.  Applicant  and  counsel  reviewed
the case on 4 May 2004.  (Exhibit D)

On 14 May 2004, counsel requested the  applicant’s  case  be  reopened,  and
provided his detailed refutations regarding the recommendations of  the  Air
Force office of responsibility.   The  response,  with  attachments,  is  at
Exhibit E.

On  19  May  2004  the  applicant  submitted  a  letter,  with  attachments,
requesting removal and replacement of several  pages  of  his  14  May  2004
response (Exhibit F).


On 22 May 2004, counsel submitted  a  letter  withdrawing  his  position  as
applicant’s counsel.  On 25  May  2004  the  applicant  submitted  a  letter
concurring this action, and requesting that  the  Board  review  his  appeal
based on the evidence submitted to date.  (Exhibit G)
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THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice.  Documentation submitted by  the  applicant
does not support his contention that he should have received the  Legion  of
Merit award.  We reviewed the documentation  that  highlights  the  member’s
service record; however, we do not find an adequate basis to  disagree  with
the decision of the applicant’s Commander to award the  Meritorious  Service
Medal versus the Legion of Merit award.   In  this  respect,  we  note  that
decorations  are  awarded  at  the  discretion   of   the   Commander,   and
appropriately given in accordance with the performance  of  the  individual.
We found no evidence of animus or abuse of  discretion,  and  no  compelling
basis to recommend granting the relief sought in this application.

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 issue(s) involved.  Therefore, the  request  for  a
hearing is not favorably considered.

________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of probable 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 23 June 2004, under the provisions of AFI 36-2603:



      Mr. Thomas S. Markiewicz, Chair
      Ms. Barbara R. Murray, Member
      Ms. Cheryl V. Jacobson, Member

The following documentary evidence was considered in connection with  AFBCMR
Docket Number BC-2004-00540:


      Exhibit A.  DD Form 149, dated 12 Feb 2004, with attachments.
      Exhibit B.  Applicant’s Master Personnel Records.
      Exhibit C.  Letter, HQ USAF/REPS, dated 29 March 2004
            w/atchs.
      Exhibit D.  Letter, SAF/MRBR, dated 9 April 2004;
            Letter, Applicant’s Counsel, 15 April 2004;
            Letter, AFBCMR, 22 April 2004.
            Counsel’s Statement of Case Review, 4 May 2004.
      Exhibit E. Letter, Counsel, dated 14 May 2004, with atchs.
      Exhibit F. Letter, Applicant, dated 19 May 2004.
      Exhibit G. Applicant’s Counsel, 22 May 04, w/atch.




            THOMAS S. MARKIEWICZ
            Chair