RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-03715 INDEX CODE: 100.06, 100.03 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ _ APPLICANT REQUESTS THAT: She receive a reenlistment (RE) code that would enable her to reenlist in the Air Force or at least, in the Air National Guard (ANG) and that the following be removed from her record: 1. A letter of counseling (LOC) dated 27 November 2006. 2. A letter of reprimand (LOR) dated 8 March 2007. 3. An Article 15, with corresponding Unfavorable Information File (UIF), dated 25 April 2007. 4. An LOR, placed in her (UIF) dated 1 May 2007. 5. A referral enlisted performance report (EPR) for the period ending 2 July 2007. 6. Establishment of a Control Roster on 8 July 2007. ________________________________________________________________ _ APPLICANT CONTENDS THAT: She was suffering from a medical condition when she received the LOC upon return from a deployment. She was under a medical profile when she received both LORs and she believes they were issued to her for personal reasons anyway. The Article 15 she received was unfair and due to extenuating circumstances as well as issued to her for personal reasons. The UIF and her placement on the Control Roster were both due to reprisal from her commander after she had contacted her congressman. The referral EPR she received was influenced by her commander. She has served in the Air Force for over nine years and has served proudly without ever having received any disciplinary action against her until 27 November 2006. After returning from a deployment in October 2006, she continued to experience a delayed sleeping disorder that prevented her from sleeping at night and contributed to her not being able to arrive on time for her Boot Camp (physical training) sessions. Concurrently, she had been experiencing several problems of a personal nature involving the suicide of one close friend prior to her deployment and the murder of another friend early in her deployment as well as being expected to provide care for an extremely ill grandfather with cancer and her ill mother. She tried to find a way to get home from her deployed area but was unsuccessful. The Red Cross became involved on behalf of her grandfather but she was still ultimately unable to get home. She began experiencing sleeping problems at her deployed location and the problems persisted after she returned to her base. When she missed her first Boot Camp appointment and received the 27 November 2006 LOC, she was encouraged to make a medical appointment to address her sleep issues. She also met with personnel at Life Skills. While she kept her enlisted chain of command updated on her progress, her commander was not informed of her seeping disorder. She was late to a 0545 Boot Camp and received an LOR dated 8 March 2007. She finally received a profile for her sleep disorder but not until 13 March 2007, about a week after her LOR. On 15 May 2007, she received an Article 15 for disrespecting her commander during a meeting. She was fined $500 and reprimanded. The Article 15 was placed in a UIF along with the LOR. She missed a consequent Boot Camp on 29 May 2007 and was issued another LOR. She was also put on the Control Roster for failure to go. She states she even slept through her promotion testing and her commander did not allow her to make it up. She submitted a rebuttal to her Article 15 within the allotted time to do so but her appeal was denied. She submitted a letter to her congressman at which time the Inspector General (IG), on 6 July 2007, sent her commander an inquiry regarding the letter to her congressman. On 8 July 2007, her commander signed her LOR, UIF, and control roster paperwork and gave her a copy. On 17 July 2007, she filed a reprisal complaint with the AMC IG. Also on 17 July 2007, she received a “3” on what was a referral OPR due to her Article 15. She states her supervisor told her he was recommending a “4” but was overruled by her commander. She wished to appeal the EPR and was assigned an Area Defense Counsel (ADC). In support of her appeal, the applicant has provided a personal statement and several letters of support from former supervisors and peers, pertinent email trails, excerpts from her UIF, copies of her reprisal allegations, regular leave paperwork, her referral EPR and associated paperwork, excerpts from her visits with the Life Skills office and associated physical profile documentation, and copies of the LOC and LOR’s. Applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: Applicant enlisted in the Regular Air Force on 6 May 1998. She was progressively promoted to the grade of staff sergeant (SSgt) effective and with a date of rank (DOR) of 1 May 2003. On 27 November 2006 she received a letter of counseling (LOC) for failure to go. She had been scheduled to attend a physical training (PT) session on 21 November 2006 by her commander and had failed to show up. On 8 March 2007, she was issued a letter of reprimand (LOR) for failure to go. She was scheduled for mandatory PT on 7 March 2007 and was late. She went to the Life Skills clinic and was diagnosed with a mood disorder and a Circadian Rhythm Sleep Disorder. She was placed on a physical profile from 13 March 2007 through 14 July 2007 that recommended she not work night shifts, nor any 12 hour shifts and she be placed in a duty position that would allow her a full night’s sleep. Further, the physical profile, in view of her sleep disorder, recommended she be allowed some flexibility on arrival times and that she be assessed prior to the administration of PT to ensure she had received adequate sleep the night before. She was also prescribed an anti-depressant for her mood disorder which has drowsiness as a side effect. On 25 April 2007, she was issued an Article 15 for showing disrespect toward a superior commissioned officer. Her commander also initiated an Unfavorable Information File (UIF). She appealed the Article 15 and on 13 May 2007, her appeal was denied. The punishment she received as a result was forfeiture of $500 and a reprimand. She was placed on a control roster (CR) on 8 July 2007. A CR is a rehabilitative tool used by commanders to establish a six- month observation period for individuals whose duty performance is substandard or who fail to meet or maintain Air Force standards of conduct, bearing, and integrity, on or off duty. On or about 17 July 2007, she received an EPR covering the period from 3 July 2006 through 2 July 2007. As the EPR mentioned the Article 15 she received, it was considered a referral EPR. While she contends she received the EPR on the same day she submitted an IG complaint for reprisal and alleged coercion of her rater by the commander, she did not file an appeal with the Evaluation Reports Appeals Board (ERAB) within the time allotted her to do so. She was discharged on 25 November 2007 after serving 9 years, 6 months, and 25 days of active service. She was issued an RE code of 2X, “First-term, second-term, or career airman considered but not selected for reenlistment under the SRP.” As she was serving under the Control Roster at the time of discharge, her RE code should have been 4I, “Serving on Control Roster.” ________________________________________________________________ _ AIR FORCE EVALUATION: AFLOA/JAJM addresses the applicant’s request to have her Article 15 removed and recommends denial. JAJM states a commander’s action should only be set aside when the evidence demonstrates an error or a clear injustice. The applicant has not presented evidence of a meaningful error or clear injustice in the Article 15 process and there is no evidence in the record that her commander abused his discretionary authority. The remaining pertinent legal facts are contained in the evaluation at Exhibit C. AFPC/DPSI addresses her request to have the LOC and LORs removed from her record and recommends the BCMR deny her request. DPSI states the use of the LOC and LOR by commanders and supervisors is an exercise of supervisory authority and responsibility. DPSI notes individuals have three days upon receipt to submit rebuttal documents for consideration by the initiator. She did not submit any comments but did mention in her case that she had medical issues and projected leave to justify why she failed to attend mandatory appointments and meetings. She has failed to provide evidence to support her claim she was unjustly accused and DPSI concludes there was no error or injustice on the part of the Air Force. DPSI’s complete evaluation is at Exhibit D. AFPC/DPSIDEP addresses her request to have the referral EPR removed from her record and recommends the BCMR deny her request. Regarding her allegation of coercion between her rater and her commander, DPSIDEP states the applicant provided no supporting documentation from anyone in her rating chain that substantiates her claim of coercion. DPSIDEP could not find any error or injustice in the contested report in that the applicant indeed received the Article 15 as stated in the report. DPSIDEP states they are not convinced the rater was coerced or that the outcome of the contested report was the result of reprisal. DPSIDEP’s complete evaluation is at Exhibit E. AFPC/DPSOA addresses her request that her reenlistment (RE) code be changed to a code that would allow her to reenlist in the Air Force and recommends the BCMR deny her request. However, DPSOA notes the RE code of 2X she received is, in fact, incorrect. Therefore, as she was serving while on a Control Roster, DPSOA recommends the BCMR change her RE code from 2X to 4I, “Serving on Control Roster.” In regards to her allegation of reprisal, DPSOA states there was no evidence presented to show that the commander’s actions were motivated by reprisal. DPSOA’s complete evaluation is at Exhibit F. AFPC/JA addresses her assertion that the allegation her commander reprised against her has been substantiated. JA states that the only evidence she has provided thus far is a letter from HQ AMC/IGQ that does not, in fact, substantiate her allegation but only makes a determination that the letter be forwarded to the final approval authority concerning the determination of reprisal. Therefore, JA states only that her allegations of reprisal are pending and that she will be notified of the results upon approval of the investigations findings. AFPC/JA’s complete evaluation is at Exhibit G. The BCMR Medical Consultant addresses the question of whether or not a medical condition could cause some or all of the behavior for which the applicant was punished. The Medical Consultant states it is not uncommon to establish a causal and mitigating relationship between a given act of misconduct and a medical condition. In this case, he notes the applicant’s diagnosis of a Circadian Rhythm Sleep Disorder with a recommendation from her health care provider to avoid 12-hour or night shifts and for her supervisors to allow some flexibility in her duty arrival time. Medication she had been prescribed carry side effects of drowsiness. Collectively, her Circadian Rhythm Sleep Disorder and the medicine she was taking (for a mood disorder), should mitigate at least one of her failures to go to her appointed place of duty at the prescribed time; particularly if an early morning arrival time was required. The remaining pertinent medical facts are contained in the evaluation prepared by the BCMR Medical Consultant at Exhibit H. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 7 March 2008 for review and comment within 30 days. As of this date, no response has been received by this office. ______________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting partial relief. It appears the applicant was suffering from a sleep disorder associated with a circadian rhythm sleep disorder and was taking prescribed medication for a mood disorder that causes sleepiness. The sleep disorder and the medication coupled with the early hours she was required to keep, all contributed to her being late to her physical conditioning appointments. In fact, she received at least two consecutive physical profile medical reports as a direct result of her sleep disorder and her prescription. Therefore, based on the BCMR medical consultant’s opinion and our extensive review of the evidence of record, it is our view that the Letter of Counseling (LOC) and Letters of Reprimand (LORs) received with regard to physical training should be removed from her record. The Unfavorable Information File (UIF) and the Control Roster (CR) action established as a result of her LOC and LORs should also be removed. Regarding her post-application request to change her reenlistment eligibility (RE) code to one that would enable her to reenlist with the Regular Air Force or with the Air National Guard (ANG), allowing her to continue her career, we note that the RE code she received at her discharge, (2X – First term, second term, or career airman considered but not selected for reenlistment under the Selective Reenlistment Program) should have been 4I, “Serving on Control Roster”. However, noting the relevancy of the existing RE code of 2X to her situation, we choose not to direct a change in her RE Code to 4I. The RE code of 2X is waiverable by any service, Regular or Reserve, willing to enlist her. 4. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice with regard to her request to have the Article 15 dated 25 April 2007 and referral EPR she received for the period ending 2 July 2007 removed from her record. We note that the ongoing IG investigation she cited was closed in January 2008 and that the allegations of reprisal and abuse of authority she brought against her commander have been dismissed. Consequently, absent compelling evidence indicating otherwise, we can find no legitimate reason for removing the Article 15 and the referral EPR from her record. Therefore and with regard to paragraph three above, we recommend that the records be corrected as indicated below. 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 issue involved. Therefore, the request for a hearing is not favorably considered. ______________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that: a. The letter of counseling (LOC) dated 27 November 2006, be, and hereby is, declared void and removed from her records. b. The letter of reprimand (LOR) dated 8 March 2007, be, and hereby is, declared void and removed from her records. c. The letter of reprimand (LOR), dated 29 May 2007, the Unfavorable Information File (UIF) and Control Roster (CR) action, established as a result of the LOR and any and all references thereto, be, and hereby is, declared void and removed from her records. ______________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2007-03715 in Executive Session on 7 May 2008, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2007-03715 was considered: Exhibit A. DD Form 149, dated 6 November 2007, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 5 December 2007. Exhibit D. Letter, AFPC/DPSI, dated 13 December 2007. Exhibit E. Letter, AFPC/DPSIDEP, dated 8 January 2008. Exhibit F. Letter, AFPC/DPSOA, dated 14 January 2008. Exhibit G. Letter, AFPC/JA, dated 28 February 2008. Exhibit H. Letter, BCMR Medical Examiner, dated 7 March 2008. Exhibit I. Letter, SAF/MRBR, dated 7 March 2008.