
USCA1 Opinion

	




        January 17, 1996        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1694                                MAJOR JAMES L. CADIGAN,                                Plaintiff, Appellant,                                          v.                     DEPARTMENT OF THE ARMY, BOARD FOR CORRECTION                      OF MILITARY RECORDS AND TOGO D. WEST, JR.,                                SECRETARY OF THE ARMY,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Selya, Cyr and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Mark Fitzsimmons on brief for appellant.            ________________            Donald  K.  Stern,  United States  Attorney,  and  Lori  J. Holik,            _________________                                  ______________        Assistant United States Attorney, on brief for appellees.                                 ____________________                                 ____________________                      Per  Curiam.    We  have   carefully  reviewed  the                      ___________            district court record and  the briefs of the parties,  and we            affirm the judgment of the district court for essentially the            reasons set forth in the Order dated June 1, 1995.                      Our decision is  not a reflection on  the merits of            appellant's entitlement to the  Congressional Medal of Honor.            The record in this case evidences Mr. Cadigan's extraordinary            courage and service to his country, service which most likely            saved the lives of two platoons of American troops in Germany            in  1945.   Simply, as  the district court  found, it  had no            power  to  review   the  decision  of  the  Army   Board  for            Corrections  of  Military  Records; the  question  before the            court  was  not  whether  it  had  jurisdiction  to  consider                                               ____________            appellant's  case, but  whether  the  question presented  was            justiciable.            ___________                      Appellant does not complain that the Army failed to            follow  a   mandate  contained  in  a   relevant  statute  or            regulation, committed an unauthorized  act, or made a factual            error  which rises to the level of  an injustice -- the kinds            of claims  which  usually are  justiciable.   See  Dodson  v.                                                          ___  ______            United  States, 988 F.2d 1199,  1204 & n.6  (Fed. Cir. 1993).            ______________            Rather, appellant asserts that, under the facts he presented,            the  Army  should  have  awarded  him  the  Medal  of  Honor.            However, the decision whether to award a medal is one left to            the complete discretion  of the military.   Wilson v.  United                                                        ______     ______                                         -2-            States,  24 Cl. Ct. 842, 846  (1992) (the decision by the Air            ______            Force to award one  medal to plaintiff instead of  another is            "purely a  discretionary one and therefore  is not reviewable            by [a] court").  Indeed, the criteria for such awards are not            within the realm of  judicial expertise, implicating  instead            the "complex, subtle, and professional decisions" left by the            Constitution  to the judgment of  the military.  See Gilligan                                                             ___ ________            v. Morgan, 413 U.S.  1, 10 (1973).  The cases appellant cites               ______            are not to the contrary as they involved justiciable matters.            See, e.g., Swann v. Garrett, 811 F.Supp. 1336 (N.D.Ind. 1992)            ___  ____  _____    _______            (review of  the factual  question whether plaintiff  had been                            _______            awarded the Navy Cross).                      Because this  case does  not present  a substantial            question, the appeal  is summarily affirmed.   See Local Rule                                                           ___            27.1.                                         -3-
