Sayeth the Court:
Frank Visconi, proceeding pro se, appeals a district court judgment dismissing his action filed under the Administrative Procedure Act (APA), 5 U.S.C. § 706, challenging the denial of his request to correct his military records…
the Purple Heart. Id. Finally, it found no evidence that he was entitled to the CAR. Id. at 513.
Although Visconi offered a large volume of evidence in support of his request for a Bronze Star and a Purple Heart, the documents that he provided, including the April 25, 1969 letter from William Kenneflick Jones, id. at 116, do not satisfy the applicable regulatory criteria. And, significantly, the citations that Visconi provided for the Bronze Star and Purple Heart, purportedly issued to him in 1969, do more to undermine his claim than to support it. When Visconi made his initial request in 2006, he stated that he had never received the awards and did not know whether recommendations were ever made or granted. Id. at 287-88. It was only after this request was denied that Visconi claimed to have actually received the awards and to have the citations that accompanied them. Id. at 371. At no point has Visconi acknowledged this discrepancy or explained his failure to include the citations in his initial request.
Further, the MMMA offered several compelling reasons for its determination that these documents were not authentic. Id. at 187, 512-13. Visconi argues that this authenticity determination is suspect because it took three years to make. But this is not accurate—Visconi first submitted the citations in March 2008, and the MMMA made its ruling in May 2009—and in any event the passage of time has no bearing on the accuracy of the determination. Visconi also argues that he provided evidence disproving the authenticity determination that the BCNR failed to adequately consider. But, when reviewing an agency decision, we do not “reweigh the evidence” or substitute our judgment for that of the agency. Big Branch Res., Inc. v. Ogle, 737 F.3d 1063, 1069 (6th Cir. 2013) (citation omitted); see Haselwander v. McHugh, 878 F. Supp. 2d 101, 107 (D.D.C. 2012).
Moreover, Visconi does not support this assertion with citations to the record, and the record does not bear out his claim. For example, Visconi points out that, according to the Navy’s own regulations, there can be “many varieties of style for the same award.” SECNAVINST 1650.1H at § 220.3(e)(3). But that provision further states that awards must satisfy the “basic requirements” outlined in the awards manual. Id. The Bronze Star citation that Visconi provided did not do so. And, in any event, the fact that a Bronze Star citation can be issued in a variety of styles does not disprove the MMMA’s determination that the citation provided by Visconi was not in a recognized format. Visconi further posits that Bronze Star citations issued during the same time period were signed by individuals other than the Commanding General and that Purple Heart awards must sometimes be accompanied by citations. But the sole example of a Purple Heart “citation” that Visconi provides was prepared on a personal computer by one of the recipient’s treating physicians because the award was not recorded in the recipient’s official military record. A.R. at 189, 192.
The other evidence Visconi submitted in support of his requests for reconsideration provides at best indirect support for his claim that he is entitled to these awards and falls short of the documentation required by Navy regulations. This includes letters written by or on behalf of two of his superiors in Vietnam, C.J. Daigle and Eugene L. Polderdyke, and a letter from Gerald Mollohan, who served in another unit in the same area as Visconi. Id. at 46-47, 51-52; Pl.’s Resp. at 398. Because none of these individuals personally witnessed the underlying acts for which Visconi sought the Purple Heart and the Bronze Star, they do not substantiate his claim of entitlement to these awards.
In sum, there was no evidence in Visconi’s military record to show that he was treated for a wound sustained as a result of enemy action, as required to award a Purple Heart, and no evidence that he was recommended for a Bronze Star. Accordingly, the BCNR rationally refused to correct Visconi’s military record. And, in light of this determination, the BCNR did not act arbitrarily by declining to grant Visconi’s request for a personal appearance or by declining to reconsider its ruling after Visconi took a polygraph test and had his citations analyzed by a handwriting expert.
If there is a bright side to this, it is that the Stolen Valor Tournament is approaching….
Category: Phony soldiers