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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