RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2002-04091
INDEX CODE:  112.10, 134.00
	XXXXXXXXXXXXXXXXXX			COUNSEL: NONE

	XXXXXXXXXX					HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT: 

His Article 15 action imposed on 23 April 1998 be deleted from his records and his reenlistment eligibility (RE) code of 2X be changed to enable him to enlist in the Reserves.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His medical condition of Sleep Apnea was misdiagnosed during his term of service.  As a result he received an Article 15 punishment for being consistently late for work and a reenlistment code that prevents him from entering the Guard or Reserves.  Had he been correctly diagnosed with sleep apnea, he wouldn’t have received the Article 15 or an RE Code of 2X.  Since his diagnosis, he has been using a Continuous Positive Airway Pressure (CPAP) appliance and it has made a dramatic change in the quality of his life.  He is now well rested in the morning, full of energy all day long, and able to perform any task at any time.  

In support of his application, the applicant provides copies of his DD Form 214, Certificate of Release or Discharge From Active Duty; a civilian sleep evaluation dated 13 March 2002; and military sleep evaluation documentation.  The applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 3 January 1996, the applicant enlisted in the Regular Air Force at the age of 19 in the grade of airman basic (E-1) for a period of four years.  He was progressively promoted to the grade of senior airman (E-4), effective and with a date of rank of 3 January 1999.  He received two enlisted performance reports (EPRs) during the period 3 January 1996 through 1 September 1998 with promotion recommendations of 4 and 5.

On 16 April 1998, the applicant was offered nonjudicial punishment under Article 15, Uniformed Code of Military Justice (UCMJ), for failure to go at the time prescribed to his place of duty on 3 and 10 April 1998.  On 21 April 1998, the applicant acknowledged receipt, consulted legal counsel, waived his right to demand trial by court-martial and accepted the nonjudicial proceedings under Article 15, UCMJ.  On 23 April 1998, his commander imposed punishment of reduction to the grade of airman (E-2) and forfeiture of $250 pay per month for two months, both suspended until 22 October 1998, after which time they would be remitted without further action unless sooner vacated; 30 days extra duty; and a reprimand.  The applicant chose not to appeal the decision.  On 29 April 1998, the judge advocate found the record to be legally sufficient.  On 18 May 1998, the applicant’s punishment of $250 pay per month for two months was vacated for dereliction of duty by not having his dormitory room ready for inspection.

An AF Form 418, Selective Reenlistment Program Consideration, shows that the applicant was recommended and selected for reenlistment on 22 October 1998.

The applicant’s service medical records are not available for review; however, the medical documentation provided by the applicant indicates he presented to a military medical clinic on 1 July 1998 complaining of problems with falling asleep at work, snoring, and feeling un-rested despite an adequate amount of sleep.  The applicant’s weight at the time was 190 pounds, well within Air Force standards (maximum allowable weight for his height of 72 inches was 205 pounds).  The applicant was referred for a sleep study to diagnose any sleep disorders.  The sleep lab results reported the applicant as “substantially normal” but did show some abnormal hypopneas (decreased breathing) not sufficient enough to diagnose obstructive sleep apnea.  The sleep lab recommended weight loss, avoidance of alcohol, and a follow-up sleep evaluation in six months.  On 2 November 1999, the applicant underwent both a polysomnogram and a multiple sleep latency test.  At the time of the test, he weighed 228 pounds, 23 pounds over his maximum allowable weight and reported symptoms consistent with obstructive sleep apnea.  He was diagnosed with “atypical narcolepsy” and prescribed an effective medication.  The sleep specialist initiated a medical evaluation board to review the applicant’s case.  After reviewing his case, the Board recommended the applicant be returned to duty.  

Following completion of his term of service, the applicant was honorably discharged effective 13 December 1999 under the Holiday Early Release Program with a reentry code of 2X (first-term, second-term, or career airman considered but not selected for reenlistment under the selective reenlistment program).  He had served 3 years, 11 months and 11 days on active duty.

_________________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical Consultant is of the opinion that no change in the applicant’s records is warranted.  The BCMR Medical Consultant states that the applicant provided documents from a civilian sleep lab indicating he was diagnosed with severe sleep apnea during a sleep evaluation performed on 13 March 2002, over two years after his discharge.  At the time of his evaluation, the applicant weighed 240 pounds (35 pounds over his Air Force maximum allowable weight).  The findings of the three polysomnograms with regard to the severity of sleep apnea correlate with the applicant’s weight gain.  

The applicant is not medically qualified for reenlistment at this time base on his diagnosis of severe obstructive sleep apnea and a weight gain that exceeds Air Force standards.  Absence of the applicant’s medical records makes it impossible to determine if the primary reason for denial of reenlistment was due to problems related to his sleep disorder or his overweight condition.  

It is the BCMR Medical Consultant’s opinion that actions and disposition in this case were proper and equitable reflecting compliance with Air Force directives that implement the law.  The BCMR evaluation is at Exhibit C.

AFLSA/JAJM recommends no relief be granted.  JAJM states that the applicant has not provided sufficient evidence to demonstrate a material error or injustice.  It is JAJM’s opinion that the applicant wants it both ways; that the Air Force should accept as fact his contention that he had a medical condition that prevented him from reporting to work on time and that his Article 15 should therefore be set aside; but that, when it comes to reenlistment, the Air Force should ignore the same medical condition.  Changing the applicant’s reenlistment code to ignore a medical condition would violate Air Force policy and directives.  The JAJM evaluation is at Exhibit D.

AFPC/DPPAE recommends the applicant’s request be denied.  DPPAE states the RE code of 2X is correct.  The RE code is illustrative of the applicant’s status at the time of his discharge from the Air Force based on commander’s judgment.  The DPPAE evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 15 August 2003, copies of the Air Force evaluations were forwarded to the applicant for review and response within 30 days.  As of this date, this office has received no response.

_________________________________________________________________

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 probable error or injustice.  

	a.  Evidence has not been presented which would lead us to believe that the nonjudicial punishment, imposed on 23 April 1998, was improper.  We find no evidence of error in this case and after thoroughly reviewing the documentation provided in support of his appeal, we do not believe he has suffered an injustice.  In cases of this nature, we are not inclined to disturb the judgments of commanding officers absent a strong showing of abuse of discretionary authority.  We have no such showing here.  The evidence indicates that during the processing of this Article 15, the applicant was offered every right to which he was entitled.  The applicant has not provided any evidence showing that the imposing commander or the reviewing authority abused their discretionary authority, that his substantial rights were violated during the processing of this Article 15 punishment, or that the punishment exceeded the maximum authorized by the UCMJ.  Therefore, we defer to the opinion of legal authority regarding this issue and find no evidence of error or injustice.  

	b.  The applicant also requests that his RE code be changed to one that would allow his enlistment in a Reserve component.  His records are incomplete; however, from his separation document, it appears that sometime during his last year of service, he was nonselected for reenlistment.  Based on the available documents, we believe it is safe to assume that the nonselection was based on his medical problems or with his weight gain or both issues.  We believe it must be noted that the applicant’s medical condition, sleep apnea, is medically disqualifying for enlistment.  In cases of this nature, absent a showing of error or injustice by an applicant, regularity is presumed in the conduct of governmental affairs.  Other than his own assertions, the applicant has provided no evidence that would lead us to believe that his RE code is erroneous or unjust.  

c.  In view of the foregoing, we conclude that no basis exists upon which to recommend favorable action on the relief sought in this application.

_________________________________________________________________

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.

_________________________________________________________________

The following members of the Board considered this application in Executive Session on 1 October 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2002-04091:

	Exhibit A.  DD Form 149, dated 5 Dec 02, with attachments.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, BCMR Medical Consultant, dtd 1 May 03. 
	Exhibit D.  Letter, AFLSA/JAJM, dated 5 Jun 03. 
	Exhibit E.  Letter, AFPC/DPPAE, dated 7 Aug 03. 
	Exhibit F.  Letter, SAF/MRBR, dated 15 Aug 03.