RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03225
		INDEX CODE:  129.04
		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His records be corrected to reflect that he was retired in the grade of E-5 and he be entitled to all back pay and benefits thereof.  

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APPLICANT CONTENDS THAT:

He was unjustly demoted from E-5 to E-4 due to impairments that were the result of a brain injury that had not been identified.

Applicant's complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant, a prior service enlistee, reenlisted in the Regular Air Force on 11 Jan 82.  He was progressively promoted to the grade of staff sergeant having assumed that grade effective and with a date of rank of 1 Aug 86.  Applicant was retired under the Temporary Early Retirement Authority on 1 Oct 94.  He served 16 years, 8 months, and 20 days on active duty.  

The applicant received nonjudicial punishments under Article 15 of the Uniformed Code of Military Justice in September 1981 for failing to properly retrieve classified material, with a suspended reduction to the grade of airman first class and forfeiture of $100 pay; in October 1988 for drunk driving at Clark AB, PI, with a suspended reduction to the grade of sergeant and forfeiture of $350 pay per month for 2 months; in June 1992 for two instances of failing to report to work, with a forfeiture of $100 pay and 30 days extra duty; in April 1993 for drunk driving at Anderson AFB, Guam, with a suspended reduction to the grade of senior airman, forfeiture of $150 pay per month for 2 months and 30 days extra duty; and in November 1993 for being drunk and disorderly, using indecent language and assault, with a reduction in grade to senior airman and 30 days extra duty.  

On 2 Mar 94, the Secretary of the Air Force Personnel Council (SAF/PC) determined that he served satisfactorily in the higher grade of staff sergeant within the meaning of Title 10 USC and directed that he be advanced to that grade on the retired list on 10 Jan 08.

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AIR FORCE EVALUATION:

The BCMR Medical Consultant recommends denial.  The Medical Consultant states on 29 Jul 87, while performing his duties with communications equipment, lightning struck a grounded antenna.  He was using radio equipment and received an electric shock associated with the lightning strike.  However, there is no evidence of loss of consciousness, respiratory arrest, cardiac arrest, burns, or brain injury.  Brain injury sufficient to cause occupational impairment manifests immediately, not years later.  Thorough neurologic evaluation three years after the incident failed to find any evidence of brain injury, a conclusion confirmed by two Veterans Affairs neurologists in 2001.  Furthermore, performance reports, including his final report, do not reflect evidence of cognitive difficulties in the performance of his duty.  The Medical Consultant evaluation is at Exhibit C.

AFLSA/JAJM recommends denial.  JAJM states the underlying action to grant his request would be to set aside his November 1993 nonjudicial punishment.  JAJM states the application is untimely and should be denied on that basis.  His argument is without merit.  The available evidence does not support his contentions regarding "impairments" causing him to be drunk and disorderly, to use indecent language, and to assault someone.  He was struck by lightning in 1987 and the misconduct in question occurred six years later.  A thorough evaluation of his fitness for duty was undertaken and resulted in a determination that he was fit for duty and no concerns were noted.  Unless it is shown that the commander's finding regarding the Article 15 was arbitrary or capricious, it should not be disturbed.  No such evidence exists and in fact, the applicant had numerous disciplinary problems prior to the misconduct in question all of which, except for the 1981 dereliction of duty occurred after his accident.  During the times the misconduct occurred, he continued to have excellent performance at work and no other documented episodes of losing control.  This is inconsistent with a conclusion that impairment from a lightning strike caused his misconduct.  The DVA notes the he has a long history of "polysubstance abuse."  The basis for his request is insufficient to warrant setting aside the Article 15 action and does not demonstrate an inequitable basis for relief.  The JAJM evaluation is at Exhibit D.

AFPC/DPPPWB recommends denial.  DPPPWB states the demotion action taken against the applicant was procedurally correct and there is no evidence of any irregularities or that his case was mishandled.  The DPPPWB evaluation is at Exhibit E.

AFPC/DPPRRP recommends denial.  DPPRRP states he was previously considered by SAF/PC for advancement to the grade of staff 

sergeant and he will be advanced to that grade effective 10 Jan 08.  The DPPRRP evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 24 Dec 03 for review and comment within 30 days.  As of this date, this office has received no response.

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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 that would warrant corrective action.  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 been the victim of an injustice.  The Board notes that in accordance with the decision of the Secretary of the Air Force Personnel Council, the applicant's grade will be advanced to staff sergeant on the retired list for pay purposes on 10 January 2008.  With respect to his nonjudicial punishments, which resulted in his reduction in grade, evidence has not been presented which would lead us to believe that the punishments imposed on the applicant were improper or unjust.  His contentions are duly noted; however, we are not persuaded by his assertions that his disciplinary problems were the result of a medical condition, which impaired his ability to distinguish between right and wrong.  The opinions of the Air Force offices of primary responsibility appear to be based on the evidence of record and have not been refuted by the applicant.  Therefore, 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.  In the absence of persuasive evidence to the contrary, we find no basis upon which to favorably consider 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 AFBCMR Docket Number BC-2003-03225 in Executive Session on 31 MAR 04, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 24 Apr 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 9 Sep 03.
    Exhibit D.  Letter AFLSA/JAJM, dated 14 Nov 03.
    Exhibit E.  Letter AFPC/DPPPWB, 2 Dec 03.
    Exhibit F.  AFPC/DPPRRP, 16 Dec 03, w/atchs.
    Exhibit G.  Letter, SAF/MRBR, dated 24 Dec 03.