RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-00995

						COUNSEL:  	

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

1.  Removal of nonjudicial punishment (NJP) under Article 15.

2.  Removal of comments regarding sexual harassment of three airman on the Enlisted Performance Report (EPR) rendered for the period 1 Oct 97 thru 8 Mar 98.

3.  His rank be restored to Master Sergeant (MSgt).

4.  He receive back pay and time lost for early retirement due to his Post Traumatic Stress Disorder (PTSD).

APPLICANT CONTENDS THAT:

The information regarding sexual harassment of three airman was not true and should never have been included on his EPR under the guidelines at that time.  It was just recently approved by the Secretary of the Air Force to include this type information in an individual’s record.  The airman who wrongfully reported the sexual harassment was later kicked out of the Air Force after accusing the First Sergeant of sexual harassment and fighting at the noncommissioned club (NCO).

While deployed to Haiti his commander disobeyed an order by shipping weapons in the luggage compartment of a commercial airplane.  The weapons were confiscated by Haitian Customs.  He believes his commander issued him the Article 15 in an effort to cover up this incident because he planned to report the commander upon his return from deployment.

While on active duty he experienced several traumatic events which he believes led to his PTSD.  He did not receive proper medical treatment because the psychiatrist misdiagnosed his condition.

He would have never retired early but did so due to this situation.

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

STATEMENT OF FACTS:

On 5 May 78, the applicant commenced his enlistment in the Regular Air Force.

A medical note dated 24 Aug 83, indicates the applicant has no medical or psychological problems.

In Apr 84, the applicant was seen several times at the Mental Health (MH) Clinic regarding an adjustment reaction to a new base.

On 17 Mar 87, the medical findings on an aircraft accident/non-fatal report reflects the applicant’s toxicology results were negative for the drug testing he underwent.

On 12 Sep 90, the applicant’s records were reviewed by the MH clinic for his security clearance.  It was noted he had not been seen by MH since 1984, along with a recommendation for his clearance.

In 1997, it was noted in a medical note that the applicant was experiencing job stress.  It was further noted the applicant would enroll in a stress management group.

On 30 Mar 98, the applicant’s medical and Behavioral Health Clinic (BHC) records were reviewed and indicated the applicant had no disqualifying condition or mental health disorder that would affect his duty performance or make him a security risk.  He was cleared by MH.

On 30 Mar 98, the applicant received a referral EPR for the period ending 8 Mar 98.  

The applicant’s EPR profile as a MSgt is listed below:

			PERIOD ENDING		OVERALL EVALUATION

			   17 Feb 94			5
			   28 Feb 95			5
			   30 Sep 95			5
			   30 Sep 96			5
			   30 Sep 97			5
			   *8 Mar 98			4
			    8 Mar 99			5

*Contested Referral Report

The applicant was offered NJP on 30 Aug 99.  On 2 Sep 99, he accepted the NJP and submitted a written presentation.  On 8 Sep 99, the applicant received an Article 15 for dereliction of duty and making a false official statement.  For this misconduct his punishment consisted of a reduction in rank from MSgt to TSgt, forfeiture of pay, and a reprimand.  On 13 Sep 99, he waived his right to appeal.  On 15 Sep 99, the NJP was found to be legally sufficient.

On 14 Oct 99, the Secretary of the Air Force directed the applicant be advanced to the rank of MSgt on the retired list effective 5 May 08.

On 1 Feb 00, the applicant retired in the rank of TSgt and was credited with 21 years, 8 months and 26 days of active service.

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR) and the AFBCMR Psychiatric Consultant, which are attached at Exhibits C, D, E and F.    

AIR FORCE EVALUATION:

AFLO/JAJM recommends denial indicating there is no evidence of an error or injustice with respect to the applicant’s request for removal of the Article 15 actions against him.

Nonjudicial punishment (NJP) is authorized by Article 15, Uniform Code of Military Justice (UCMJ), and governed by the Manual for Courts-Martial) and AFI 51-202, Nonjudicial Punishment.  This procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects.  The service members first must be notified by their commanders of the nature of the charged offenses, the evidence supporting the offenses, and the commander's intent to impose the punishment.  The service member is entitled to consult a lawyer before making any decisions, and a lawyer may assist the member throughout the proceedings, to include when determining whether to accept the NJP or demand trial by court-martial.  Accepting the proceedings is simply a choice of forum; it is not an admission of guilt.  NJP is also not, when imposed, a criminal conviction.

A service member accepting NJP may submit written matters to, and have a hearing with, the commander imposing the punishment.  The service member generally has the right to have a spokesperson at the hearing, may request that witnesses appear and testify, and may present matters in defense, extenuation, and mitigation orally, in writing, or both.  The commander must fully and fairly consider the evidence, including any matters presented by the service member.  While no specific standard of proof applies to NJP proceedings, including appeals, commanders are counselled to recognize that a service member is entitled to demand trial by court-martial, in which case proof beyond a reasonable doubt of each element of every offense by legal and competent evidence is a prerequisite to conviction.

Service members contesting their commander's determination or the severity of the punishment imposed may appeal first to the imposing commander, and then to the next higher commander.  The appeal authority may deny the appeal altogether if the appeal authority agrees with the action taken or may remove or modify the NJP if he or she disagrees in whole or in part with the action. 

The applicant provided several letters and memorandums in support of his request, however, despite his assertions there is no new evidence presented.  He had the chance to appear in person during the NJP, but opted to submit a written presentation.  The applicant had the chance to speak to the stressful incidents that occurred in his written presentation, and although he is under treatment for PTSD there is no way to know if it had any impact on his behavior in 1999 which resulted in his NJP.  The applicant was afforded all of his due process rights and the NJP was properly executed. 

In regard to the portion of his request for back pay, restoration of rank, and service time, the applicant voluntarily retired, his discharge was not a result of the punishment from the NJP. 

A complete copy of the AFLOA/JAJM evaluation is at Exhibit C.

AFPC/DPSIDE recommends denial indicating there is no evidence of an error or injustice with respect to the applicant’s request for his enlisted performance report rendered for the period 1 Oct 97 through 8 Mar 98 to be voided.  They note the applicant’s request was not filed in a timely manner.  

The applicant did not file an appeal through the Evaluation Report Appeals Board (ERAB) under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports.  The contested EPR has been a matter of record for over 17 years.  The test to be applied is not merely whether the applicant discovered the error within three years, but whether through due diligence, he could or should have discovered the error.  The applicant has offered no justification for the extensive delay, as well as took no action on the claim before that.  As a result of this long delay, the Air Force no longer has documents on file, memories have either faded or are not available, and these factors seriously complicate any ability to determine the merits of the applicant's request. In short, the Air Force asserts that the applicant's unreasonable delay regarding a matter dating back 17 years has greatly complicated its ability to determine the factual merits of the applicant's position.

Under the provisions of the governing AFI the applicant can request a waiver of the three year time limit by citing unusual circumstances that prevented filing the appeal in a timely manner.  However, service members are responsible for reviewing their records at least annually for accuracy and the board should consider the due diligence of the applicant to apply for correction.  Applications that do not include a waiver will be returned without action.  Grounds for a waiver do not include: failing to understand the appeals process; being discouraged from appealing by superiors, peers, or counselors; failing to understand how serious an impact an evaluation could have on your career in later years; not reviewing your records during the intervening years.  The applicant has not provided a convincing circumstance that would have prevented him from submitting the application in a timely manner and although the AFBCMR is not governed by AFI-36-2406, we would recommend the denial based on timeliness alone and urge the AFBCMR to come to the same conclusion.

The applicant contends that his EPR is unjust because the negative comments are not true and should not have been entered into his military record under the guidelines at that time.  Section V. of the contested report states:  Supervised one NCO and two technicians; given letter of reprimand for sexual harassment” the next bullet states:  “Made unwelcome advances suggestive/comments towards three female Airmen”.  AFI 36-2403, Table 3.3 states: "Submit EPRs of Airmen on AD if the ratee's performance or conduct is unsatisfactory or marginal, and a special report is appropriate. In this case, the applicant's rating chain felt that it was necessary to document his unsatisfactory performance.  Without supporting evidence to support the claim, we contend the EPR is accurate as written and in accordance with the established intent of the current Officer and Enlisted Evaluation System in place.

The applicant has failed to provide any evidence to substantiate his assertions that the contested evaluation was rendered incorrectly.  Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record.  DPSID determined that the reports were accomplished in direct accordance with all applicable Air Force policies and procedures at the time.

A complete copy of the AFPC/DPSIDE evaluation is at Exhibit D.

AFPC/DP3SP states that regarding the applicant’s request for his rank to be restored to MSgt, the applicant received nonjudicial punishment and as a part of his punishment he was reduced in rank from MSgt to TSgt.  However, on 13 Oct 99, by order of the SECAF, he was advanced to the rank of MSgt effective 5 May 08.  They further state they have no equity in the decision regarding the applicant’s request.  AFLOA/JAJM has reviewed the case and recommends denial of applicant’s request to remove the Article 15 as they find no legal error or injustice with the NJP.

A complete copy of the AFPC/DP3SP evaluation is at Exhibit E.

The AFBCMR Psychiatric Consultant recommends denial indicating there is no evidence of an error or an injustice.  The Psychiatric Consultant states the applicant appeals to the Board for multiple changes to his record; however, only the applicant’s claim that he had suffered from PTSD while on active duty will be addressed in this advisory.

The applicant believes his exposure to several traumatic events while on active duty led to his developing PTSD.  Although, the applicant has been involved in behavioral health treatment through the DVA and the Veterans Center, he has had limited encounters with mental health providers while in the Air Force.  His records reveal short psychotherapeutic interventions in 1984 and 1987 due to some work related stressors.  Furthermore, in 1999 on post deployment health questionnaire the applicant indicated he was experiencing some marital issues.  In all instances the applicant was cleared by the Behavioral Health and no changes were annotated on his profile.  His performance reports were mostly superb, with one exception, the time period when he was accused of the sexual harassment. There are no indications that he had poor job performance or could not fulfill his duty obligations satisfactory.  

The fact that the DVA granted the applicant a disability rating for PTSD, suggests, while there may have been a nexus with an event during military service, no evidence is presented to demonstrate that PTSD was clinically present and unfitting at the time of the applicant’s discharge.  The military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (U.S.C.), only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the “snapshot” time of separation and not based on post-service progression of disease or injury.  However, the DVA operating under a different set of law, Title 38, U.S.C., is empowered to offer compensation for any medical condition with an established nexus with military service, without regard to its impact upon a member’s fitness to serve, the narrative reason for release from service, or the length time transpired since the date of discharge.  The DVA may also conduct periodic reevaluations for the purpose of adjusting the disability rating awards as the level of impairment from a given medical condition may vary [improve or worsen] over the lifetime of the veteran.  Therefore, even though the DVA has granted compensation for the applicant’s medical condition, this evidence does not invalidate the appropriateness of the military discharge disposition, which was based upon the information present at the time of the his release from military service.

The Psychiatric Consultant recognizes the sacrifices the applicant has made for this country and appreciates his service.  It is fortunate that he has sought help at the DVA and was subsequently diagnosed with PTSD for which he hopefully is receiving appropriate treatment.  The Psychiatric Consultant finds the applicant has not met the burden of proof of error or injustice that warrants the desired change of the record.

A complete copy of the AFBCMR Psychiatric Consultant evaluation is at Exhibit F.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

While it was recommended that his application not be reviewed based on it being a late submission, he requests the documentation he provided be reviewed and taken into account the impact these events took on his life and illnesses.   The documentation will show he did not have a mental illness when he entered the Air Force.

He was involved in an aircraft accident within months after arriving to his first duty station resulting in his going into shock and losing four months of his life.  While deployed the major in his unit shipped weapons via a commercial airliner and they were confiscated by Haitian officials.  They forcibly retrieved the weapons.  The major accused him of leaving his weapon unattended in his room in an effort to cover up this incident because he planned to report the incident to the commander upon his return from deployment.  He believes these incidents triggered his PTSD symptoms.  

In March 2016, he underwent a C&P evaluation and was assigned a Mental Health doctor, who stated that the PTSD was caused by military service, not his childhood, marriage or father's death.  He believes his previous physician did not believe the events of the aircraft accident affected him personally.  

Due to his PTSD he lost his wife, and jobs.  It has nearly destroyed all of his relationships and isolated him from the outside world.  He attends grief counseling, stress management group, anger management group and PTSD group all to get his life back in some order to try to live a normal life.  

The applicant’s complete response, with attachments, is at Exhibit H.

FINDINGS AND CONCLUSIONS OF THE BOARD:

1.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  After a careful review of the applicant's contentions, documentation submitted in support of the request, and the available evidence of record, we are not convinced the applicant has provided sufficient evidence for us to conclude that he is the victim of an error or injustice.  We also note the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603.  While the applicant claims a date of discovery of less than three years prior to receipt of the application, we believe a reasonable date of discovery was more than three years prior to receipt of the application.  Therefore, because we do not find it would be in the interest of justice to recommend granting relief, and the applicant has offered no plausible reason for the delay in filing the application, we cannot conclude it would be in the interest of justice to excuse the failure to timely file the application.  Accordingly, we find the application untimely.

2.  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.

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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 AFBCMR Docket Number BC-2015-00995 in Executive Session on 26 Jul 16, under the provisions of AFI 36-2603:

		, Panel Chair
		, Member
		, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-00995 was considered:

	Exhibit A.  DD Form 149, dated 5 Mar 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFLOA/JAJM, dated 5 Jun 15.
Exhibit D.  Memorandum, AFPC/DPSIDE, dated 5 Nov 15.
Exhibit E.  Memorandum, AFPC/DP3SP, dated 25 Nov 15.
Exhibit F.  Memorandum, AFBCMR Psychiatric Consultant,
		  Dated 31 May 16.
	Exhibit G.  Letter, SAF/MRBR, 6 Jun 16.
	Exhibit H.  Letter, Applicant, dated 22 Jun 16, w/atchs