RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-04930

  						COUNSEL:  YES

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

1) His two Article 15s be vacated;
2) Restore his rank of Airman First Class with a date of rank (DOR) of 2 Dec 13;
3) His reenlistment eligibility code and separation program designator (SPD) code be change to make him eligible to reenlist; and, 
4) Either:
(a) Reverse his discharge and reinstate him to active duty as an unclassified Airman for reclassification; or, 
(b) Change his character of discharge to an Honorable and provide for an expedited reenlistment in a new Air Force Specialty Code (AFSC).  

APPLICANT CONTENDS THAT:

Through counsel, he did not commit four of the six alleged minor disciplinary infractions used as the basis for discharge, the same four alleged infractions for which he unjustly received Article 15 punishment.  The two infractions he did commit were directly related to a documented medical condition for which he was prescribed medication.  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 2 Dec 13.  The applicant’s entry physical indicates he had a pre-existing condition for Attention Deficit Hyperactivity Disorder (ADHD) and had a school suspension for tardiness.

On 16 Jul 14, the applicant received a Letter of Counseling (LOC) for failing a block two test and a Letter of Reprimand (LOR) for falling asleep in class for the second time.

On 4 Aug 14, the applicant received a LOR for failing to show for class on time.  

On 14 Oct 14, the applicant’s commander notified the applicant of his intent to offer non-judicial punishment (NJP) under Article 15 for failure to go on 3 Oct 14.  

On 24 Oct 14, the applicant’s commander decided he had committed one or more of the alleged offenses and imposed punishment of a reduction in rank to Airman with a new date of rank of 24 Oct 14, suspended forfeiture of $350.00 pay per month for two months, and a reprimand. 

On 29 Oct 14, the applicant did not appeal the decision.

On 30 Oct 14, the Article 15 was found to be legally sufficient.

On 27 Oct 14, the applicant’s commander notified the applicant of his intent to offer non-judicial punishment under Article 15 for failure to go to at the time prescribed to his appointed place of duty, on 16 Oct 14 and 17 Oct 14, and failure to follow a lawful order (to shave in accordance with his shaving waiver before returning from lunch) on 22 Oct 14.  

On 5 Nov 14, the applicant’s commander decided he had committed one or more of the alleged offenses and imposed punishment of a reduction to the rank of Airman Basic, suspended through 3 May 15, forfeiture of $350.00 pay, and a reprimand. 

On 6 Nov 14, the applicant did not appeal the decision.  

On 6 Nov 14, the Article 15 was found to be legally sufficient.  

On 18 Nov 14, the applicant’s commander recommended he be discharged from the Air Force for Misconduct, Minor Disciplinary Infractions and on 21 Nov 14, the applicant provided a written response asking the separation authority to give him another chance or, if removed from the Air Force, be discharged under honorable conditions.  

On 19 Nov 14, the applicant stated on his DD Form 2807-1, Report of Medical History, he was suffering from sleeping issues and depression/worry; however, the medical officer cleared the applicant for worldwide service and separation.  

On 4 Dec 14, the Air Base Wing Commander approved the applicant’s discharge.

On 11 Dec 14, the applicant was furnished an Under Honorable Conditions (General) discharge, a Misconduct (Minor Infractions) narrative reason for separation, and was credited with 1 year and 10 days of active service.  

On 7 May 15, the applicant’s Air Force Discharge Review Board (AFDRB) hearing was held and his request for an upgrade of discharge to Honorable was denied.  The AFDRB concluded his discharge was consistent with the procedural and substantive requirements of the discharge regulation, was within the discretion of the discharge authority, and that the applicant was provided full administrative due process.  

On 17 Aug 16, the applicant made a personal appearance before the AFDRB and in a majority decision, the AFDRB determined the discharge was consistent with procedural and substantive requirements of the discharge regulation.   

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.  

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial indicating there is no evidence of an error or an injustice which undermine the NJP actions that preceded the applicant’s discharge from the Air Force.  AFLOA/JAJM is not the OPR for assessing the legal sufficiency of administrative discharge actions.  The sole issue raised by applicant that falls within the purview of this office is the legal sufficiency of the NJP he received and there is sufficient evidence to support both Article 15s. In support of his application to the AFBCMR, the applicant provides a brief by civilian counsel and memoranda prepared by five retired military members who reviewed this case at the civilian counsel’s request.  The five retired military members maintain that the first Article 15 should have been withdrawn and that the applicant should not have been discharged due to the lack of rehabilitative opportunities afforded to him, which they claim is evidence of a failure in leadership.  However, the record, including the applicant’s own admissions, as well as his commander’s discharge recommendation, demonstrates that he committed minor disciplinary actions warranting discharge and that he was offered numerous opportunities to conform to Air Force standards, to no avail.  The applicant does not raise any new evidence or allegation of injustice which tends to cast doubt on the NJPs imposed upon him.  

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

AFPC/DP3SP does not make a recommendation.  AFLOA/JAJM has reviewed the case and found no error or injustice which undermines the NJP actions.  As we have no equity in the decision regarding the NJP, we defer to their decision. 

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

AFPC/DP3ST recommends denying the applicants request for a change to the Reenlistment Eligibility (RE) code indicating there is no evidence of an error or an injustice.  The involuntary discharge and general character of service require the 2B (separated with a general or under other-than-honorable conditions discharge) RE code.

A complete copy of the AFPC/DP3ST evaluation is at Exhibit E.

AFPC/DP2STM-SEP recommends denial indicating there is no evidence of an error or an injustice in the discharge processing and the discharge was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority.  The SPD code and corresponding narrative reason for separation are correct as indicated on the applicant’s DD Form 214.  In accordance with AFI 36-3208, para 5.49, “a pattern of misconduct consisting solely of these infractions in the current enlistment makes an airman subject to discharge.  These infractions may involve failure to comply with non-punitive regulations or minor offenses under the UCMJ.  Infractions of this type result, as a rule, in informal (reduced to writing) or formal counseling, letters of reprimand, or Article 15 non-judicial punishments.”  The commander chose to discharge the applicant under the provisions of para 5.49.  The base discharge authority approved the discharge and directed immediate separation.  There is no error with the SPD code and narrative reason for separation.  

A complete copy of the AFPC/DP2STM-SEP evaluation is at Exhibit F.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel refutes virtually every point made by the Offices of Primary Responsibility (OPRs) and argues that the applicant began experiencing three temporary conditions at the operational schoolhouse: a shaving waiver, sleep problems, and lack of transportation.  These three conditions appear from the record to have created an impression the applicant was a slacker, completely out of alignment with his true character.  The advisories fail to address the applicant’s allegation of substantive injustice in his treatment and discharge.  None of the advisories address his medical conditions nor was an advisory opinion obtained.  The Board should grant a personal appearance in order to access the applicant’s credibility.  In the applicant’s case, he does not allege an error in the procedures used to discipline/discharge him rather he alleges he was disciplined and discharged unjustly, directly stemming from his temporary medical conditions and lack of transportation.  The applicant’s counsel asks the Board to carefully read the expert opinions, with a combined 111 years of pertinent qualifying experience, submitted in the application and disregard the OPR advisory opinions entirely.  

A complete copy of the applicant’s rebuttal, with attachments, is at Exhibit H.

ADDITIONAL AIR FORCE EVALUATION:

The AFBCMR Medical Advisor recommends the Board make its decision based upon the infractions unrelated to the applicant’s two medical conditions.  There is evidence that the applicant sought care for difficulty initiating sleep over an at least 2-week period and was prescribed medications to facilitate falling asleep.  Even though, in one of the applicant’s instances of showing up late for duty, he attributed this failing to set his alarm clock at the appropriate time, it is entirely possible that twice falling asleep on duty could have been either due to non-restorative sleep or due to the known side-effect [daytime hypersomnolence] of his prescribed Lunesta.  Thus, the LOR the applicant received in July 2016, for twice falling asleep in the same week, should be removed from consideration in the Board’s final decision.  

Addressing the applicant’s dermatologic problem, it appears that supervisory officials were aware that the applicant carried a shaving waiver, but that, based upon the comments by one of his instructors and the applicant’s own admission, he may have reached the growth in excess of that expected for the shaving waiver.  Factoring in the known disdain for shaving waivers by many commanders, notwithstanding the possible negative racial baggage he carried, it’s likely his condition brought more negative attention unto himself than other shaven service member.

Even if expunging the offense of failing to shave [which has nothing to do with the fact that he had a shaving waiver] and twice falling asleep at work, that leaves a number of other infractions unrelated to the applicant’s medical issues that some might consider sufficient for discharge.  The question is whether these alone would have resulted in the applicant’s discharge.  However, when considering the totality of evidence, e.g., the applicant’s ineffective use of his obvious intelligence and level of maturity disclosed prior to entering military service, by not electing to drive, his unreliable dependence upon other service members for transportation, reliance upon a bicycle, but without a helmet, placing a note under a door for an official notification of his whereabouts and plans, the Board should consider the change in reason for discharge and character of service.  However, considering the relative brief length of time since the applicant’s discharge and his undiagnosed sleeping issues, the evidence is not compelling enough to change the applicant’s re-enlistment eligibility code. 

A complete copy of the AFBCMR Medical Advisor evaluation is at Exhibit I.

SAFPC-DRB recommends denial indicating there is no evidence of an error or an injustice in the discharge processing and the discharge was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority.  After reviewing the applicant’s records, supporting documents, and his previous AFDRB cases from 7 May 15 (non-personal appearance) and 17 Aug 16 (personal appearance), there was no new or additional information presented by the applicant to the BCMR.  Additionally, the applicant was provided full administrative due process. In view of these findings, there exist no legal or equitable basis for upgrade.

A complete copy of the SAFPC-DRB evaluation is at Exhibit J.

ADDITIONAL APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant, through counsel, states the Board should accept two of the Medical Consultant’s opinions regarding the recommendation to remove from consideration in the Board’s final decision the LOR the applicant received for twice falling asleep and factoring the known disdain for shaving waivers by many commanders; however, should disregard the rest of his opinion with regard to issues outside of his qualifications as the “harmless error” opinion is neither competent nor substantive evidence and mere speculation.  Furthermore, the applicant’s counsel states the SAFPC-DRB evaluation is adequately addressed by the arguments and authorities in the previously submitted rebuttal.  

A complete copy of the applicant’s rebuttal is at Exhibit L. 

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 opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice.  With regard to the applicant’s counsel contention in rebuttal that the applicant was disciplined and discharged unjustly directly stemming from his temporary medical conditions and lack of transportation, the Board took into consideration his medical condition as well as his transportation issues; however, the Board found the applicant was not treated unjustly as he had several infractions unrelated to these issues that alone could have resulted in his discharge.  Notwithstanding, the Board found the non-judicial punishment, the discharge processing, and the discharge was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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.

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-2015-04930 in Executive Session on 28 Mar 17 and 21 Apr 17 under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 29 Oct 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFLOA/JAJM, dated 8 Jun 16.
	Exhibit D.  Memorandum, AFPC/DP3SP, dated 17 Jun 16.
	Exhibit E.  Memorandum, AFPC/DP3ST, dated 7 Jul 16.
	Exhibit F.  Memorandum, AFPC/DP2STM, date 11 Jul 16.
	Exhibit G.  Letter, AFBCMR, dated 11 Aug 16.
	Exhibit H.  Applicant’s Rebuttal, dated 9 Sep 16, w/atchs.
	Exhibit I.  Memorandum, AFBCMR Medical Advisory, dated
  9 Feb 17.
Exhibit J.  Memorandum, SAFPC-DRB, dated 23 Feb 17.
	Exhibit K.  Letter, AFBCMR, dated 27 Feb 17.  
	Exhibit L.  Applicant’s Rebuttal, dated 27 Mar 17.

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.