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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26996
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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Dear Mr. Simmons, I received a denial from the AFBCMR regarding

Resolved Question:

Dear Mr. Simmons,

I received a denial from the AFBCMR regarding award of a medal. Would it be possible for me to send you my file (it can be emailed), have you review it, and let me know whether you would consider appealing it to the Federal Court of Claims and how much you would charge (or at least how much you would charge to begin the process)? I believe the AFBCMR made several errors in reaching their decision.

Thanks. XXX@XXXXXX.XXX
Submitted: 1 year ago.
Category: Military Law
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

I am not allowed to represent you...that would violate the terms of service of this website. I can provide general information, but I am not able to represent you (to actually do the work to draft your response)
Customer: replied 1 year ago.

Can you at least let me know if an appeal of this type - appeal of denial of a military decoration - is acceptable to the court or if it would be considered frivolous (assuming I am not making it all up)? The court must have more important things to do, but I'm not sure how to appeal the decision otherwise.

Expert:  P. Simmons replied 1 year ago.
To win a court of claims case you must show "abuse of discretion"

This is not a very easy standard to meet.

Basically, you have to show that you had it right...that any reasonable person could see you had it right, and that the board of corrections abused its discretion in ruling against you.

DO you have that? Do you think?
Customer: replied 1 year ago.

Yes, I do. Their denial was based on the award (a BSM) would overlap an AFCM which I received. 1) They are for different actions; 2) The actions under the BSM took place within the timeframe of the AFCM, but covered a much briefer period; and 3) The Board stated that they could only make an exception (regarding overlap) if the BSM actions were for heroism or outstanding achievement (the AFCM is for meritorious service), and in fact the BSM was submitted for outstanding achievement. In addtion, since the AFCM basically covered my Vietnam tour, their argument would mean that no other medal could be awarded for any actions during my tour because any such award would overlap the time frame of the AFCM.

Expert:  P. Simmons replied 1 year ago.
But how did this get raised to the Board....what led to your filing this in the first place?

Customer: replied 1 year ago.

I requested and received a copy of my service records in 2009, and found upon reading a performance report that my commander had recommended me for the BSM as well as two other awards which I did receive. I then contacted the USAF to learn the disposition of the BSM, which lead to a filing with the AFBCMR, a denial based on the usual (no hard evidence it had been awarded), my submission of a reconstructed BSM recommendation written last year by the awards and decorations officer of my unit at the time (1967 - 1968), per the Board's instructions, etc. Specifically the AFCM covers normal duties of an aircraft crew chief over a period of a year, and the BSM focuses on ground combat actions during the Tet Offensive (defense of our MACV compound during a ground assault).

Expert:  P. Simmons replied 1 year ago.
Thank you

SO is your contention that the award was approved by the approval authority, but never actually given to you? If so what evidence to you have the approval authority approved the award?
Customer: replied 1 year ago.

No, my contention is that have misunderstood, misapplied, or ignored USAF award and decoration regulations which do allow the award of two different medals during the same time frame if the achievements are different. They are basically saying because there is an overlap in the timeframe, the BSM cannot be awarded without referencing the fact that the achievements are different. They are also saying that the achievements under the BSM are already covered under the AFCM, which is not the case. They do note that I received another "achievement" award within the timeframe of the AFCM (an Airman's Medal) but make no comment on the contradiction to their argument. They did not ever consider the merits of the BSM recommendation (if I had been denied on that basis I would have no grounds for complaint).

Expert:  P. Simmons replied 1 year ago.
Thank you

That helps...but to solve this riddle, we need to dig further back...what evidence do you have that supports either

1. The awarding authority granted the awarded as drafted?


2. The awarding authority denied or never acted on the proposal?

Customer: replied 1 year ago.

I'm afraid I'm taking up too much of your time. I've only paid $30 for all of this, and I know your time must be worth more than that.


 


The Board determined in 2009 after investigation by the USAF awards and decorations branch, that there was no evidence either way (and I have far fewer resources than they do). For this reason, they denied my initial request in 2009, but stated they would reopen the case if I submitted a reconstructed recommendation. At that time such a task was impossible as I was out of touch with the former awards and decorations officer and my former commander had been killed in Vietnam right after I left in 1968. I renewed contact with the awards and decorations officer in 2010 or 2011 through a chance Internet contact. He volunteered to write a new recommendation in 2012 when I explained what had transpired.

Expert:  P. Simmons replied 1 year ago.
Thank you

I appreciate your sensitivity to my time...but lets see if we can answer the question.

I asked about the base finding (was there ever evidence to show the awarding authority took action) for a reason...This is the board of records CORRECTION. You have to show "error or injustice" to have a claim approved (and have the official record changed).

And there is the "presumption of regularity", the board of corrections will presume the record is correct...you have to provide evidence to rebut (overcome) the presumption.

Basically, they will not change the record unless you can prove it up...they require you to submit clear evidence to overcome the presumption.

See if the record showed approval...if you have evidence that it was approved? Then you would have it. Easy. That would overcome the presumption.

But you do not have that.

You have, it seems, evidence that the award was submitted...but no evidence it was approved. And that is the key. You must have evidence to prove it was awarded by the awards authority.

Unless you have that? You are not going to meet the "abuse of discretion" standard.

Again, it comes back to the function of the board of records correction. THey are in the business to correct records. TO meet the burden on appeal that they abused their discretion, you will need to provide evidence to the appeals court that the commander who was the awarding authority actually approved the proposed award. Short of that? I think you have a very tough time winning this on appeal


Sorry to have to bear bad news.

Let me know if you have more questions...happy to assist if I can


Customer: replied 1 year ago.

You've been great, thanks. It isn't really bad news, and I've never felt I deserved the BSM - it was a case of you do what you have to do, as I'm sure you understand with your own military background. In fact, what I asked of the Board originally was merely to tell me the disposition of the recommendation, along with requests for corrections to my records (all of those requests were accomplished). I didn't request the medal. I only sent in the reconstructed recommendation at the Board's request, if I can put it that way, and only after my accidental reacquaintance with the awards and decorations officer, etc. I guess I'm mostly just frustrated with their apparent disregard of what I sent to them, and their making statements which are factually incorrect in reaching their decision. All of that aside, though, I do understand all that you are saying, and perhaps there was no point in ever pursuing the matter as far as I did. Please resend the rating request message so that I can give your responses a rating. Best regards. David Sciacchitano

Expert:  P. Simmons replied 1 year ago.
Sir

Thank you

And I wish you the best through this

Phil
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26996
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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P. Simmons
P. Simmons
Military Lawyer
26996 Satisfied Customers
Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.