RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  02-03956
							INDEX CODE:  126.00, 131.00
XXXXXXXXXXXXXXXXXXX			COUNSEL:  NONE		   
	XXXXXXXXXXX				HEARING:  YES

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APPLICANT REQUESTS THAT:

1.  His nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) effective 26 December 2001 be removed from his records.

2.  His Unfavorable Information File (UIF) be removed from his records.

4.  He receive Brigadier General Special Selection Board consideration.

5.  He be reinstated into Wing Command Candidate status.

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APPLICANT CONTENDS THAT:

His punishment was inappropriate because hypothermia, and the severe mental impairment that resulted from it, were causal to the incident.  As a result, he was not cognizant of the consequences of his actions or of the fact that he was doing anything wrong.  The punishment did not account for his lack of mental responsibility.  The political context in which the Article 15 was issued and the subsequent appeal denied, was not conducive to impartial decision-making.  The judge advocate’s conduct was prejudicial. 

On 31 October 2001, he succumbed to hypothermia while fly-fishing from an inter-tube in an alpine lake in Colorado, drove a motor vehicle, and was cited for Driving Under the Influence (DUI).  He had purchased alcohol with the intent of drinking it responsibly with a friend from out of town.  He drank prior to succumbing to hypothermia -- specifically:  one ounce of alcohol in soda consumed with two and a half hours remaining before his departure.  While submerged in waders to mid-chest level for two hours, his body temperature dropped precipitously.  His fishing partner authenticates these facts.  

After an hour and 15 minutes on the lake he was ready to exit, but did not act on that inclination.  Instead, he lost all awareness of his deteriorating situation until the two-hour point, when he awoke from a period of sleep.  He recognized he was in trouble and slowly made his way to shore.  When he arrived on shore, it took considerable time to dress down and stow his gear, where he came across the alcohol.  He was shivering uncontrollably, anxious about his impaired physical state, and got the notion in his mind that “this will make me warm.”  He was not cognizant at all of the potential for intoxication, the intoxication that subsequently occurred, or of the fact that he was doing something wrong.  He was not aware of his mental impairment or the fact that physiologically, he was in danger.  He departed shortly after and has no memory of the return trip home.  During his return, a motorist called in his tags for erratic driving.  Local police cued Air Force Security Personnel to stop his vehicle at the base gate.  He has no memory of his route to the base gate and only vague and partial recollections of initial processing.  It took some time to even comprehend where he was and register the fact that what was happening was real.  It was, literally, like waking from a bad dream.  

An argument can be made that hypothermia was foreseeable.  But it is important to note that his fishing partner, who also succumbed, is an experienced alpine fisherman and former USMC winter survival instructor.  Both of them were lulled into a dangerous situation by an Indian Summer on the Colorado plain that did not exist above 9000 feet.  Their gear prevented cold shock, but not debilitating heat loss over two hours.  

His operational commander found the evidence he described mitigating and was disposed towards a lesser punishment or set-aside.  For this reason, the operational commander makes no reference to the mishap in his subsequent performance reports.  His case, however, was decided by his administrative chain of command.  Recommendations from his operational chain were legally prescribed.  At best, his administrative chain possessed no direct knowledge of his character or past performance.  At worst, as Director of Operations at Cheyenne Mountain, he was a principal adversary in a long-term bureaucratic conflict that culminated one week prior to the Article 15 decision.  His intent is not to characterize the punishment decision as vindictive, but it is fair to say without any disrespect, that his relationship with administrative commanders was not one likely to promote impartiality.  His belief is that his relationship led to abbreviated review and judgment of his case.  Finally, the judge advocate’s conduct was prejudicial.  Key information was misrepresented and a punishment decision secured before he had any knowledge of this fact or the opportunity to respond.

In summary, he should have never fallen victim to these events.  He should have assessed the environment he was entering.  He should have worn better gear.  He should have inspected his gear.  He should have exited upon first recognition of being overly cold.  It was a bad decision to take alcohol.  Like most mishaps, this one resulted from a chain of misjudgments each of which increased risk.  It is his professional habit to step back from situations and assess cumulative risk, but for some reason, he failed to do so in this recreational context.  With full acknowledgement of this negligence, he respectfully requests the Board consider two questions:  1)  Was commander discretion appropriate in consideration of his lack of mental responsibility for the DUI?  2)  Was the case fairly adjudicated?  An Article 15 is the standard institutional punishment for a DUI, but consideration of mitigating circumstances and past duty performance is a commander’s right and obligation with any non-judicial punishment decision.  The incident was not a willful breech of trust, but a single unfortunate mishap in an otherwise exemplary twenty-two year career.  Hypothermia was causal.  His actions as a result of hypothermia were completely unwitting.  Based on these facts and his leadership track record, his operational commander was disposed towards a lesser punishment.  Likewise, from the standpoint of military law, a conviction was unlikely had this case gone to a court-martial.  In his view, both the organizational climate in which this case was decided and the judge advocate’s conduct, compromised due process.  He believes a set-aside was warranted when the relevant facts were scientifically established and the appropriate principles in military case law identified.  

In support of his request, applicant provides a personal statement and a case information file in the form of two binders.  Binder I contains a Case Brief with documentary evidence with Tabs 1-10 and an incident replication video and Binder II contains supplementary documentation with Tabs 1-12.     His complete submission, with Binders I and II, is at Exhibit A.

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STATEMENT OF FACTS:

Information extracted from the Military Personnel Data System (MilPDS) indicates the applicant’s Total Active Federal Military Service Date as 28 May 1980.  He is currently serving on active duty in the grade of colonel, with a date of rank and an effective date of 1 September 1998. He was considered and not selected for promotion to the grade of brigadier general by the BO702A brigadier general selection board that convened on 10 August 2002.  He is scheduled to be considered for the BO703A brigadier general selection board that is scheduled to convene on 18 August 2003.

On 5 Dec 01, the applicant was notified by his commander of his intent to recommend imposition of nonjudicial punishment under Article 15 UCMJ.  The specific reason for this action was for driving while drunk, in violation of Article 111, UCMJ.  The specification alleged the applicant was in physical control of a vehicle near the South Gate entrance to the United States Air Force Academy on or about 31 October 2001 while his blood alcohol concentration level was 0.10 or greater.  He was advised of his rights in this matter and acknowledged receipt of the notification on 17 Dec 01.  After consulting counsel, the applicant waived his right to demand trial by court-martial, accepted Article 15 proceedings, and provided written and oral presentations to his commander.  On 26 Dec 01, after consideration of all the facts, his commander determined that he committed the offense alleged and imposed a reprimand on the applicant.  The applicant appealed his punishment to the Numbered Air Force Commander.  His appeal was considered and denied on 29 Apr 02.  

The following is a resume of the applicant's OPR profile:

	PERIOD ENDING				OVERALL EVALUATION

	15 Apr 03	Meets Standards (MS)
	30 Jun 02			MS
	21 Feb 02			MS
	21 Feb 01		MS
	21 Feb 00                          MS
	09 Jun 99	   MS
	09 Jun 98                       TRAINING REPORT
	12 Aug 96                          MS
	02 Feb 96                          MS
	02 Feb 95                          MS

The applicant has received two AF Form 709s, Promotion Recommendation Forms, for the B0702A and B0703A Brigadier General Selection Boards and received an overall recommendation of “Definitely Promote” and “Promote” respectively.  Additionally, the applicant’s record indicates he was awarded the Defense Superior Service Medal (DSSM), during the year 2002; Meritorious Service Medal, Fourth Oak Leaf Cluster, during the year 2000, Distinguished Flying Cross and Air Medal, Third Oak Leaf Cluster during the year 1991; Defense Meritorious Service Medal during the year 1987 and an Air Force Commendation Medal during the year 1984.  

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AIR FORCE EVALUATIONS:

The BCMR Medical Consultant reviewed the application and recommends a legal review.  The BCMR Medical Consultant states that the applicant provides a comprehensive, well-referenced review of the medical facts pertaining to hypothermia due to environmental exposure.  He has obtained authoritative opinions from recognized experts in the medical aspects of hypothermia confirming the plausibility of his contention and has provided objective evidence in the form of an experiment demonstrating that the conditions he reported he experienced caused significant hypothermia of sufficient degree to affect cognitive functioning.  The BCMR Medical Consultant states that the applicant reportedly drank a small amount of alcohol during the first 30 minutes of water immersion while fishing.  Alcohol exacerbates heat loss and increases the risk for hypothermia when exposed to the cold, worsens the degree of hypothermia, and also worsens the disturbance of mental functioning inducted by hypothermia.  Hypothermia progressively depresses brain function.  Ingestion of alcohol by someone who would otherwise know better is felt to represent a plausible example of irrational behavior.  The rapid ingestion of the relatively large amount of alcohol at the time the applicant reports would not manifest immediately, but rather over a period of 30 to 60 minutes coinciding with the time he arrived at the base gate.  The replication experiment demonstrated he recovered to near normal core body temperature by 90 minutes after entering his car (roughly 2 hours after exiting the water), roughly the time he would have arrived at the gate.  The BCMR Medical Consultant concludes that the applicant has provided clear evidence that his contention is medically plausible given the events as presented.  The BCMR Medical Consultant’s evaluation is at Exhibit C.

AFLSA/JAJM recommends denial of applicant's request.  JAJM states that the imposing commander may set aside the punishment or any part thereof, restoring any property, privileges, or rights affected by the set aside portion of the punishment.  A set aside is appropriate when the commander believes that, under all circumstances of the case, the punishment has resulted in clear injustice.  Set aside action is not normally considered a rehabilitation tool and commanders should not routinely set aside punishment or use it as a reward for a member who merely avoids future misconduct.  Like an appeal, a member has no right to a personal presentation.  Unless it is shown that the commander’s findings were either arbitrary or capricious, they should not be disturbed.  

JAJM states that the applicant’s complaints about the role of the legal office are without merit.  As provided by Air Force instructions and the Manual for Courts-Martial (MCM), before the applicant was offered the Article 15 the legal office’s function was to consider whether the evidence proved those facts and advise the commander accordingly.  The applicant condemns this practice as “prejudgment,” but does not dispute the test results or the fact he was driving.  The applicant criticizes the legal office for both its investigation of his defense and the failure to provide him with the result of that investigation.  These critiques have no merit.  It is not the function of a legal office to prove a member’s defense; that is for the member and his defense counsel.  Because the applicant accepted the Article 15 proceedings instead of demanding a trial by court-martial, he vested the commander with the responsibility to decide, after considering the applicant’s submission, whether applicant drove drunk.  It is abundantly clear that the applicant drove onto the Air Force Academy with a blood alcohol concentration over 0.20, more than twice the legal limit.  There are defenses to drunk driving allegations.  The applicant did not deny driving the car or having a blood alcohol content twice the permissible limit; instead the applicant alleges his judgment was impaired the day he drove to the Academy drunk, and the impairment was beyond his control.  In essence he raises the affirmative defense of not being able to form the intent to drive drunk as a result of intoxication, hypothermia or a combination.  No reported cases have been found involving a person suffering from hypothermia who commits a crime, whether intoxicated or not.  Under the law, intoxication can be a defense under certain circumstances.  Voluntary intoxication is not a defense to drunk driving--it would be somewhat ludicrous to say that an individual is not responsible for the crime of drunk driving because he was voluntarily drunk.  Involuntary intoxication can be a defense to drunk driving only if the applicant did not voluntarily ingest alcohol and his mental state rises to the level of legal insanity.  Involuntary intoxication usually exists when intoxication occurs through force, fraud, or trickery of another or actual ignorance of intoxicating character of a substance.  

Hypothermia is not a recognized defense per se, states JAJM.  It is relevant in this case only to the extent that it created a severe mental condition that left him unable to appreciate the nature and quality of his act or the wrongfulness of his conduct.  In other words, the hypothermia must have made him legally insane.  Similarly, the hypothermia cannot be the result of a voluntary act on his part.

JAJM states that this application does not allege an error with the process, only the result.  The applicant wants to be absolved of his responsibility.  The BCMR is not intended to be a forum where a member can litigate his case before a new audience, hoping this time for a more favorable result.  The applicant agreed that his commander would be the fact-finder in his case, subject to an appeal to the Numbered Air Force Commander.  They were convinced the applicant committed the offense and should be punished.  Their decisions were reasonable and should not be disturbed.  A set aside should only be granted when the evidence demonstrates an error or a clear injustice.  It is JAJM’s opinion that the basis of the applicant’s request for relief is insufficient to warrant setting aside the Article 15 action, and does not demonstrate an equitable basis for relief.  The AFLSA/JAJM evaluation is at Exhibit D. 

AFSLMO/AC recommends the application be denied.  AFSLMO states that the Air Force Chief of Staff’s policy is to remove from Command Candidate Lists any officers who have an open Unfavorable Information File, to include those officers who receive an Article 15 under the UCMJ.  Applicant’s Article 15 was found to be legally sufficient, and was properly placed in his selection record.  As a result, there is no material or procedural error with either his removal from the Wing Command Candidate List, or his consideration for promotion by the CY02 Brigadier General Selection Board.  The AFSLMO/AC evaluation is at Exhibit E.  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Applicant states that he has reviewed the BCMR Medical Consultant’s and AFSLMO/AC evaluations and renders comment only on the AFLSA/JAJM evaluation.

The applicant addresses two points regarding the AFLSA/JAJM advisory; involuntary intoxication and due process.  Applicant states that the legal advisor concedes that involuntary intoxication is an affirmative defense.  However, “the science and the facts in this case do not support a conclusion he was legally insane.”  As indicated in his case summary, the sheer irrationality of this episode is compelling evidence of severe mental impairment and the fact that he could not appreciate the consequences of his action.  The notion that he would willfully put himself at such grave risk to his life and risk the lives of others is not credible.  His mentor and colleagues of the past 25 years have emphasized in letters to the Board, this episode was an unprecedented deviation from past behavior.  He has fully acknowledged his misjudgments that day, but it is also clear that he had insidious help from nature.  An external factor beyond his recognition placed him beyond the point of self-help, and beyond the point of cognition with respect to the consequences of his actions.

Applicant states that due process was compromised in that the JA in his case introduced erroneous evidence, secured a punishment decision based on that evidence before he was aware of the facts, and then blocked his efforts to subsequently correct the record.  Applicant states that there is no question that the 21 Space Wing Commander, Peterson AFB, CO, relied upon the JA’s evidence in his determination of non-judicial punishment.  The JA’s allegation that he deliberately misreported a temperature estimate to enhance his case--in essence, that he had lied, is an assertion that would influence any commander’s punishment decision.  

Applicant states that the JAJM advisor concedes that involuntary intoxication is an affirmative defense.  The BCMR Medical Consultant offers the first objective, institutional assessment of his state of mind during the incident.  Therefore, the Board must rule on involuntary intoxication and due process.  A favorable ruling on either issue is sufficient for correction of the record.  His complete submission, with attachments, is at Exhibit G.

On 22 and 23 July 2003, applicant submitted additional supporting letters from General ----, Mr. ------ , Mr. -----,  and his most recent OPR for the period 1 July 2002 through 15 April 2003.  Applicant requested these documents be placed in his original application at Binder I, Tabs 6I, 8H, 8J, and 10C.   
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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 timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of either an error or injustice warranting favorable action on the applicant’s request for setting aside the nonjudicial punishment imposed upon him under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ); removal of his Unfavorable Information File (UIF) from his records; he receive brigadier general special selection board consideration and he be reinstated into Wing Command Candidate Status.  

		a.  Applicant contends that:  The punishment was inappropriate because hypothermia, and the severe mental impairment that resulted from it were causal to his incident.  The applicant states that he succumbed to hypothermia while fly-fishing from an inter-tube in an alpine lake in Colorado.  He states he purchased alcohol with the intent to drink responsibly with a friend from out of town.  He did drink prior to succumbing to hypothermia--specifically: one ounce of alcohol in soda consumed with two and a half hours remaining before departure.  After an hour and 15 minutes on the lake, he was ready to exit but did not act on that inclination.  Instead, he lost all awareness of his deteriorating situation until the two-hour point, when he awoke from a period of sleep.  He recognized he was in trouble and when he arrived on shore, it took considerable time to dress down and stow his gear, where he came across the alcohol.  He was shivering uncontrollably, anxious about his impaired physical state, he got the notion in his mind that the alcohol would make him warm.  He was not cognizant at all of the potential for intoxication, the intoxication that subsequently occurred, or the fact that he was doing something wrong.  He was not aware of his mental impairment or of the fact that physiologically, he was in danger.  He departed shortly after and has no memory of the return trip home.  He has no memory of his route to the base gate and only vague and partial recollections of initial processing.  This incident was not a willful breech of trust, but a single unfortunate mishap in an otherwise exemplary twenty-two year career.  

		b.  The Board noted the opinion by the BCMR Medical Consultant that the applicant’s contention is medically plausible.  However, the majority of the Board notes that the Medical Consultant states that detailed studies addressing the cognitive function we call “judgment” in relationship to mild hypothermia are not evident in the literature, but irrational behavior and impaired judgment is consistently reported--the basis for his contention.  In addition, the Board majority also noted that the applicant states he “self-admitted to the Life Skill Center for an assessment and assistance,” however, the results were not available for our review.  Notwithstanding the opinion that the applicant’s contention is medically plausible, the Board majority is not persuaded the evidence supports his contention that his judgment was so impaired that he should not be held responsible for his behavior.  

		c.  The Associate Chief, Military Justice Division, recommends denial of the request to set aside the nonjudicial punishment under Article 15, UCMJ.  He advises, in part, that the applicant accepted nonjudicial punishment proceedings.  He knowingly, voluntarily and with the advice of counsel, waived his right to demand a trial by court-martial.  He knew he would have the right to appeal the decision to the appellate authority.  It is the function of the finder-of-fact to weigh the evidence and reach a reasonable conclusion.  It was reasonable for the commander to conclude that the weight of the evidence supported a finding that the applicant was guilty of driving under the influence of alcohol.  The Associate Chief, Military Justice Division, further states that the applicant made his election to resolve this issue in the nonjudicial forum after having been advised that his commander would make the decision whether he had committed the offense.  He placed the responsibility with his commander to weigh all the evidence, including the credibility of the various witnesses, and make a decision, instead of demanding his right to trial by court-martial.  The applicant chose instead to handle the issue in the less formal nonjudicial punishment forum, with its much less severe consequences.  While different fact finders may have come to a different conclusion, the commanders’ findings are neither arbitrary nor capricious and should not be disturbed.  

		d.  With all that being said, we would like to point out that upon the Board's review of the evidence, we found the 22 Space Wing Judge Advocate's (SW/JA) interviews antagonistic.  22 SW/JA’s foregone approach during their interviews demonstrated an antagonistic attitude toward the individuals being questioned thus rendering, in our opinion, a disservice to the commander.  Nevertheless, the Board majority is not persuaded that the contested Article 15 punishment should be removed.  The Board deliberated on the issue of whether the applicant’s contention that his severe mental impairment due to hypothermia was causal to his DUI and as a result he was not cognizant of the consequences of his actions.  It is the majority's opinion that the underlying misconduct that resulted in the imposition of nonjudicial punishment on 26 December 2001, was indeed unbecoming and unprofessional.  The Article 15 was within legal limits, appropriate for the offense, and does not appear unjust or disproportionate.  The Board majority notes that the applicant chose to purchase and drink the bottle of vodka.  We put credence in the fact that as an Air Force Survival School graduate, he should have known not to drink when exposed to cold temperatures-exacerbating heat loss and increasing the risk for hypothermia.  Nonetheless, despite his recognition that he was “in trouble” when he arrived on shore, he continued to drink with the notion that “this will make me warm.”  Which brings us to the event that the majority finds most troubling.  Upon his detainment at the South Gate entrance, the applicant twice asked the security policeman if there is any way he could let him go.  Upon the security policeman’s reluctance, the applicant begins to advise him that he is a highly decorated officer who has served in wartime operations and is up for wing commander and if there was a way he could drive him home so all this could be forgotten.  The majority of the board believes that this type of reasoning negates the argument that he was not cognizant of the consequences of his actions.  

4.  In view of the above, the Board majority is unable to conclude with sufficient certainty on the basis of the evidence provided that hypothermia induced the applicant’s suspension of his consciousness thus rendering him unable to think rationally.  After reviewing all the evidence provided, we agree that the actions by the Air Force authorities were appropriate and conclude that the applicant has failed to sustain his burden of establishing existence of either an error or injustice.  The Board majority believes that the decision to remove the applicant from the wing command candidate list, and establish a UIF were the direct result of the aforementioned Article 15 action.  

5.  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.  

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THE BOARD RECOMMENDS THAT:

A majority of the panel finds insufficient evidence of error or injustice and recommends the application be denied.

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The following members of the Board considered AFBCMR Docket Number BC-2002-03956, under the provisions of AFI 36‑2603:

By a majority vote, the Board recommended disapproval of the applicant's requests.  Ms. Willis voted to grant and agrees with the BCMR Medical Consultant’s evaluation.  

The following documentary evidence was considere1d for AFBCMR Docket Number 02-03956:

    Exhibit A.  DD Form 149, dated 22 Nov 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 12 Mar 03.
    Exhibit D.  Letter, AFLSA/JAJM, dated 9 Apr 03.
    Exhibit E.  Letter, AFSLMO/AC, dated 9 Jun 03.
    Exhibit F.  Letter, SAF/MRBR, dated 20 Jun 03.
    Exhibit G.  Letter, Applicant, dated 20 Jul 03, w/atchs.

						

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
               FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of XXXXXXXXXXXXXXXXXX

	I have carefully reviewed the evidence of record and the recommendation of the Board members.  A majority found that the applicant had not provided sufficient evidence of error or injustice and recommended the case be denied.  I concur with that finding and their conclusion that relief is not warranted.  Accordingly, I accept their recommendation that the application be denied.

	Please advise the applicant accordingly.