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AF | BCMR | CY2007 | BC-2004-00944-2
Original file (BC-2004-00944-2.doc) Auto-classification: Denied

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

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2004-00944-2
                                        INDEX CODE:  110.02

                                        COUNSEL:  Dale Saran

                                             HEARING DESIRED: Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

His record be changed to show his reinstatement into  the  Connecticut  Air
National Guard (CTANG) and that an Officer Performance Report be changed to
more accurately reflect his accomplishments.
_________________________________________________________________

STATEMENT OF FACTS

On 31 March 2005, the Board considered and denied his  request  but  because
of ongoing litigation (Doe v. Rumsfeld) surrounding the Anthrax  Vaccination
Program (AVIP) the Board provided a caveat that  should  the  plaintiffs  in
the aforementioned case prevail against the Secretary of Defense, the  Board
would reconsider the applicant’s request.  For an accounting  of  the  facts
and circumstances surrounding the applicant’s request and the  rationale  of
the earlier decision by the Board, see the Record of Proceedings at  Exhibit
H.

On 8 September 2006, the applicant submitted a request  for  reconsideration
(Exhibit I), as the US Court of Appeals for the DC Circuit  had  provided  a
decision in the aforementioned case (Exhibit J).  On 13 September 2006,  the
Board asked HQ USAF/JAA for an advisory on the Court  of  Appeals  judgment.
JAA provided an advisory on 19 September 2006  that  recommended  denial  of
the applicant’s reconsideration (Exhibit K).  Applicant’s  counsel  provided
an undated response  to  the  JAA  advisory  that  the  AFBCMR  received  on
26 October 2006 (Exhibit (L).

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The authority to reinstate an ANG member  without  the  consent  of  the
Govenor lies outside the purview of this Board and is  therefore  moot.   We
originally agreed that should the plaintiffs in Doe v. Rumsfeld  prevail  we
would reconsider the applicant’s request to change his OPR for the period  9
July 1998 to 14 December 1998 to more fully represent  his  accomplishments.
After careful and deliberate review of the HQ  USAF/JAA  advisory  dated  19
September 2006, we conclude that the plaintiffs in Doe v. Rumsfeld, did  not
in fact prevail  against  the  Secretary  of  Defense.   Therefore,  in  the
absence of evidence  to  the  contrary,  we  find  no  compelling  basis  to
recommend granting the relief sought in this application.

2.  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;  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 20 February 2007, under the provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Chair
      Mr. Michael K. Gallogly, Member
      Mr. James W. Russell, III, Member

The following documentary evidence was considered:

    Exhibit H.  Record of Proceedings, dated 31 Mar 05,
                  with exhibits A through G.
    Exhibit I.  Applicant, Email, dated 7 Sep 05.
    Exhibit J.  US Court of Appeals, Judgment, dated 9 Feb 06.
    Exhibit K.  HQ USAF/JAA, Memorandum, dated 19 Sep 06.
    Exhibit L.  Counsel for Applicant, Email, dated 27 Oct 06.




                                   THOMAS S. MARKIEWICZ
                                        Chair

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