RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-03675
		INDEX NUMBER:  131.09;111.00
		COUNSEL:  

		HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

The Officer Performance Report (OPR) rendered on him for the period     30 Jan 90 through 29 Jan 91 be removed from his personnel record.

He be retroactively promoted to major as if selected by the Calendar Year (CY) 1999A Central Major Selection Board.

He be awarded pay and allowances retroactive to the date that he would have been promoted to major if selected by the CY99A Central Major Selection Board. 

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APPLICANT CONTENDS THAT:

In a five-page brief of counsel, with attachments, the applicant asserts that the contested OPR was a contributing factor to his nonselection for promotion to major.  Since the period of the report, he has been diagnosed with an obstructive sleep apnea disorder.  If he had been able to obtain appropriate treatment and therapy for his condition at the time his OPR was written in 1991, his performance report for that period would have been consistent with the other reports in his career.

It would be in the interest of justice to retroactively promote him since the delayed diagnosis of the sleep apnea problem prevented him from realistically competing for promotion to major when the opportunity presented itself.  Based on the balance of the applicant’s military record, there is no other cause for his failure to be promoted other than the contested OPR, which presents an unfair reflection of his otherwise exemplary record.

The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant entered active duty 14 Aug 92.  He had previously served 7 years, 5 months, and 23 days on active duty.  He was diagnosed with sleep apnea after a sleep study in Jan 99.  He was considered but not selected for promotion to major by the CY99A Central Major Selection Board (8 Mar 99).  A review of the applicant’s OPRs indicates overall ratings of “meets standards.”

On 5 May 99, a Medical Evaluation Board diagnosed the applicant as having Obstructive Sleep Apnea.  The applicant was referred to an Informal Physical Evaluation Board (IPEB) for final disposition.  On 11 Jun 99, an IPEB was convened to consider the applicant’s condition.  The IPEB diagnosed the applicant with the ratable unfitting condition of Obstructive Sleep Apnea with excessive daytime somnolence and an unratable condition of hypertension associated with non-neophrotic range proteinuria.  The IPEB recommended that the applicant be placed on the Temporary Disability Retired List (TDRL) with a rating of 30 percent.  On   15 Jun 99, the applicant concurred with the recommendation of the IPEB.  The applicant was placed on the TDRL effective 8 Sep 99 with a compensable disability rating of 30 percent.  The applicant was scheduled for a periodic examination on 19 Dec 00.  As a result of his periodic examination, he was referred back to an IPEB.  On 27 Jan 01, the IPEB diagnosed the applicant as having Obstructive Sleep Apnea, improving on continuous positive airway pressure, and recommended his removal from the TDRL.  The applicant did not concur with the recommended findings of the IPEB and requested to appear before a formal PEB (FPEB).  On 19 Apr 01, the FPEB diagnosed the applicant as having Obstructive Sleep Apnea, Chronic Fatigue.  The FPEB recommended permanent retirement with a compensable rating of 30 percent.  The applicant concurred with the findings and recommended disposition of the FPEB on 19 Apr 01.  The applicant was removed from the TDRL and permanently retired effective 15 Jul 01 in the grade of captain.

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AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial of the applicant’s complete appeal.  The applicant was diagnosed with Obstructive Sleep Apnea (OSA) in Jan 99, a condition that can adversely affect job performance, and clearly was adversely affecting his duty performance at the time it was diagnosed.  A clear, discrete time for onset of OSA symptoms severe enough to significantly impair duty performance cannot be determined with certainty.  There appears to have been a pattern of milder, intermittent symptoms until severe and persistent ones brought the applicant to the clinic.  The applicant gives a history of excessive daytime drowsiness that predates his military service but in a   4 Mar 94 clinic appointment he reported “however it has not been problematic since high school until the past three or four months when he noticed an increase… (Patient concerned about possible narcolepsy).”  The applicant contends his OSA was a significant contributor to his poor OPR closing Jan 91.  However, there were no complaints of excessive drowsiness recorded in clinic entries neither during that time, nor during a periodic medical exam in 1992.  Although headaches may be a symptom, he appeared to have infrequent headaches and he reported none during the 1992 periodic medical exam.  The applicant’s subsequent OPRs lacked any phrases that might be considered negative.  If ongoing OSA was a significant contribution to the contested OPR, it might be reasonable to expect to see similar themes in at least one subsequent OPR at the same duty location.  

There is no evidence in the medical records to suggest that medical personnel should have suspected the applicant’s OSA at the time of the contested OPR.  In addition, had the applicant’s condition been diagnosed earlier, was found to interfere with duty performance and required treatment with continuous positive airway pressure, it would have resulted in a Medical Evaluation Board (MEB), leading to his physical disqualification and medical separation from service.

A complete copy of the evaluation is at Exhibit C.

AFPC/DPPPE recommends denial of the applicant’s request to void his OPR.  Air Force policy is that an OPR is accurate as written when it becomes a matter of record.  A report evaluates performance during a specific period and reflects performance, conduct, and potential at that time in that position.  Reports are not erroneous or unjust because they are inconsistent with other reports.

The complete evaluation is at Exhibit D.

AFPC/DPPPO recommends denial of the applicant’s request for direct promotion to major.  They also concur with the Air Force evaluations above.  

The complete evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In response to the Air Force evaluations, applicant’s counsel submitted a 17-page response prepared by the applicant.  In his submission the applicant provides answers to three questions essentially stated as below:

	    a.  Why did you not know you had sleep apnea at the time your contested OPR was written?  The applicant responds by providing an info sheet on sleep apnea.  He also explains why his being an unmarried Catholic Priest may have contributed to the delay.

	    b.  How was it that your condition affected your duty performance during the period of the contested report and not at other duty locations?  The applicant provides an example of his performance of duties as a priest during the period of the contested report.  He also states that the effects of sleep apnea are misunderstood (It was thought that the sleepiness and tiredness were jet lag).  The applicant notes that not one infraction of being a priest, chaplain, or officer is specified in the contested OPR.

	    c.  What was the process by which he sought to discover the nature of his problems and what efforts were taken by him to obtain a diagnosis?  The applicant discusses the problems he continued to have during his assignments after the period of the contested report.  He was encouraged by his fellow Catholic priests and parishoners to see his Air Force doctor about his daytime tiredness and sleepiness.  He discusses the steps he went through, which eventually led to a sleep study and the determination that he had some type of sleep disorder.

The applicant’s complete submission, with attachments, is at Exhibit G.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

4.  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 issues involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered Docket Number 01-03675 in Executive Session on 4 September 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 19 Dec 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, BCMR Medical Consultant,
                dated 7 Mar 02.
    Exhibit D.  Memorandum, AFPC/DPPPE, dated 6 Jun 02.
    Exhibit E.  Memorandum, AFPC/DPPPO, dated 6 Jun 02.
    Exhibit F.  Letter, SAF/MRBR, dated 14 Jun 02.
    Exhibit G.  Letter, Applicant’s Counsel, dated 11 Jul 03,
                w/atchs.