RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2015-04884 COUNSEL:	NONE
HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
1.	His reduction in grade to senior airman be set aside.

2.	While	not	specifically	stated,	it	appears	the	applicant	
requests	his	Article	15,	Nonjudicial	Punishment	(NJP)	be	
vacated.			

APPLICANT CONTENDS THAT:
His	sleeping	disorder	was	the	main	reason	he	was	late	and subsequently led to his Nonjudicial Punishment (NJP) actions

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

STATEMENT OF FACTS:
The applicant is a former enlisted member of the Regular Air Force who served from 16 Aug 05 through 31 Dec 15.

On 18 Mar 14, the applicant’s commander offered him NJP proceedings under Article 15, Uniform Code of Military Justice (UCMJ) for two specifications of a violation of Article 86, Absent Without Leave (AWOL), and two specifications of a violation of Article 107, making a false official statement,

On 21 Mar 14, the applicant consulted counsel, waived his right to trial by court-martial and accepted the NJP proceedings. He elected to make a written presentation and requested a personal appearance before the commander. On 24 Mar 14, the commander determined he committed the alleged offenses and imposed punishment consisting of reduction to the grade of senior airman, suspended through 23 Sep 14, after which time it would be remitted without further actions; forfeiture of $1,213.00 pay per month for
2 months, suspended through 23 Sep 14; 30 days extra duty; and a reprimand. On 31 Mar 14, the applicant appealed the commander’s punishment decision and provided matters in writing. On 3 Apr 14, the commander granted the applicant’s appeal and changed his

FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974

punishment to forfeiture of $1,213.00 pay per month for 1 month, suspended through 23 Sep 14. However, the commander decided the action would be filed in his Unfavorable Information File (UIF). The Article 15 action was reviewed by the servicing and General Court-Martial Convening Authority (GCMCA) Staff Judge Advocate (SJA) offices and determined to be legally sufficient.

On or about 24 Apr 14, without authority, the applicant absented himself from his place of duty and did so remain absent until on or about 25 Apr 14, in violation of one or more of the conditions of his suspension. Subsequently, on 11 Jun 14, the applicant’s commander vacated the suspended punishment and imposed forfeiture of $600.00 pay per month for 1 month and suspended forfeiture of the remaining $613.00 through 23 Sep 14, after which time it would be remitted without further action, unless sooner vacated. On divers occasions between on or about 18 Sep 14 and on or about
19 Sep 14, without authority, the applicant failed to go at the time prescribed to his appointed place of duty, in violation of one or more of the conditions of his suspension. Again, the applicant’s commander vacated the suspended punishment effecting the reduction to the grade of senior airman, with a new date of rank of 24 Mar 14, and forfeiture of $613.00 pay. The vacation of suspended Article 15 proceedings was reviewed by the servicing and General Court-Martial Convening Authority (GCMCA) Staff Judge Advocate (SJA) offices and determined to be legally sufficient.

According to Special Order AA-002, dated 4 Dec 14, the applicant was demoted from the permanent grade of staff sergeant to the permanent grade of senior airman, effective 26 Sep 14 and with a date of rank of 24 Mar 14.

According to a Sleep Study Report, conducted on 5 Jun 15, the medical provider noted there were no significant sleep-disordered breathing; no significant PLMS or short sleep latency, which may be suggestive of some hypersomnia. Additionally, the medical provider recommended the applicant proceed with the Multiple Sleep Latency Test (MSLT) to determine the level of hypersomnia.

According to a Sleep Study Report, conducted on 6 Jun 15, it was noted that while not confirmatory, the applicant tested consistent and worrisome for narcolepsy, a sleeping disorder characterized by “episodes of uncontrollable drowsiness, causing the individual involved to fall asleep suddenly.”

On 31 Dec 15, the applicant was furnished an honorable discharge, and separation code of LCC, which denotes “Reduction in Force”, and a Reenlistment (RE) code of 4D. He was credited with 10 years,
4 months, and 15 days of active service.

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force Offices of Primary Responsibility (OPRs), which is attached at Exhibits C - D.

AIR FORCE EVALUATION:
AFPC/DP2SSM recommends denial indicating there is insufficient evidence to determine if the applicant unjustly received an Article
15. Specifically, the applicant did not state the error or injustice in his records regarding the Article 15.

AFI 36-2907, UIF states “Article 15 supporting documentation such as evidence or other written materials, to include the member’s response to the Article 15 action, considered as a basis for imposing punishment, vacating a suspended punishment, submitted by the offender in mitigation, extenuation, defense, or an appeal is not part of the record. File these materials at the office of the servicing Staff Judge Advocate (SJA) of the commander who initiated the Article 15 as attachments to that offices copy of the action.

DP2SSM cannot determine whether or not the actions were just, but can only state if proper procedures were followed in the administration of the action. After a careful review, DP2SSM determined the applicant’s Article 15 dated 24 Mar 14, was completed in accordance with AFI 36-2907.

A complete copy of the AFPC/DP2SSM evaluation is at Exhibit C.
AFLOA/JAJM recommends denial of the applicant’s requests to set aside his reduction in grade, as there has been no showing of an error or injustice in the proceedings.

The applicant contends that he received unjust punishment following a minor incident. As a result of an Article 15, he was reduced in grade and forced to separate from the Air Force pursuant to the AF High Year of Tenure (HYT) requirement. In addition, his frequent tardiness was in large part, a result of a medically diagnosed sleeping disorder.

The applicant provided evidence of a report from a Florida Sleep Disorder Center, dated Jun 15. While not confirmatory, the report indicates the applicant tested consistent and worrisome for narcolepsy, a sleeping disorder characterized by “episodes of uncontrollable drowsiness, causing the individual involved to fall asleep suddenly.” However, this information was not presented to the commander who initiated and authorized punishment as a result of the Article 15.

In Oct 15, the applicant submitted a request to his commander for restoration of his grade. In his request, he submitted a timeline of events explaining his multiple absences and tardiness during

the period Feb 13 through Mar 15. However, he did not list his sleep disorder as an explanation for his misconduct. His timeline and letter to the commander states that on, or about 5 Mar 14, he and his wife argued until the early morning hours and explained that “minimal sleep” from a late night argument caused him to be late for his WAPS testing. The applicant admitted to making a false official statement to hide the reason he was late. In addition, his timeline reflects he was absent and/or tardy from his duty station on at least 20 separate occasions. Furthermore, he admitted that many of the instances were due to his own irresponsibility.

The applicant was provided numerous opportunities to correct his behavior, evidenced by the suspended reduction in grade and the commander’s grant of his appeal. Even though the suspended reduction afforded him the opportunity to maintain his grade as a staff sergeant, he was again absent from duty on two ancillary occasions. Therefore, it is evident from the applicant’s behavior that absence and tardiness is a common practice, notwithstanding any medical condition.

The evidence demonstrates the applicant was afforded all procedural due process rights during the NJP proceedings. JAJM finds no new evidence which may have altered the findings and recommendations of the applicant’s commander. The commander’s decision on the Article 15 action is based on the evidence of the case and the punishment decision was within the limits of the commander’s authority and discretion.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluations were forwarded to the applicant on 6 Sep 16, for review and comment within 30 days (Exhibit E). 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.	Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force Offices of Primary Responsibilities (OPRs) and adopt their rationale as the basis for our decision that the applicant has not been the victim of an error of injustice.  Therefore, in
1.	

the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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-2015-04884 in Executive Session on 9 Mar 17, under the provisions of AFI 36-2603:

Panel Chair Member Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-04884 was considered:

Exhibit A.	DD Form 149, dated 9 Nov 15, w/atchs. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	Memorandum, AFPC/DP2SSM, dated 6 Jul 16. Exhibit D.	Memorandum, AFLOA/JAJM, dated 24 Aug 16. Exhibit D.	Letter, AFBCMR, dated 6 Sep 16.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.