RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2015-05102
		
 						COUNSEL:  NONE

						HEARING DESIRED:  NO

APPLICANT REQUESTS THAT:

His Article 15 and all subsequent negative actions be void and removed from his record.

The promotion propriety removing his name from the colonels’ (O-6) promotion list be voided and removed from his record.

He be promoted to the grade of colonel.

He be retired in the grade of colonel effective the date of the Board’s decision.  

All leave, to include terminal leave taken, be restored, and accrued leave be sold.  

His referral Officer Performance Reports (OPRs) be voided and removed from his record.  

He receive interest on the back pay to which he is entitled.  

He receive coverage under Servicemembers’ Group Life Insurance (SGLI) up until his new date of retirement.  

APPLICANT CONTENDS THAT:

He was unjustly issued an Article 15 for aberrant behavior caused by a verified medical condition.  In the spring of 2011, he was feeling ill and had numerous doctor appointments regarding loss of memory, lack of sleep, headaches, stammering, inability to concentrate and anxiety.

The promotion propriety action of April 2012 was arbitrary and capricious.  The Air Force submitted two different theories to the Secretary of the Air Force (SecAF) as justification to remove his name from the promotion list.  The action was arbitrary in that one of the theories used to justify removal was a medical impossibility.  There was a lack of due process as several mandatory legal reviews were bypassed.  The 86th Airlift Wing Commander (86 AW/CC) failed to make any effort to investigate exculpatory evidence provided by the police.  SAF/GC reviewed the case and was unconvinced by the evidence and was concerned it could have been the result of a medical problem.  As a result, SAF/GC reached out to the Third Air Force Commander (3 AF/CC) and the 86 AW/CC to obtain further information and justification.  The 86 AW/CC stated he found his theories “too remote” and found the cause for his behavior was the result of alcohol consumption.  The 3 AF/CC responded that it was the result of alcohol and prescription drugs.  His conduct was clearly delusional and inconsistent with drunken behavior.  The 3 AF/CC agreed with the police that the incident was medically related but arbitrarily decided that the prescription drugs in question were taken inappropriately with alcohol and as a result he was responsible for his actions.  There is a huge difference in someone using bad judgment with excessive alcohol and someone who may have a reaction to some level of alcohol combined with properly taken prescription medicine.  

The removal from the colonels’ promotion list was the result of a single alleged incident on 10 September 2011.  He was found guilty of drunk and disorderly conduct and assault and received an Article 15 despite police statements indicating they thought his condition was medically related.  He was not drunk and there was no sobriety test, no breathalyzer and no blood alcohol test.  In the months preceding this incident, he was seen at the local Medical Treatment Facility (MTF) for slurring his words, memory loss and other odd medical problems.  In the months following the incident, he was diagnosed with a seizure disorder, also known as epilepsy.  A military neurologist would conclude that a seizure disorder could have caused the alleged incident.

In November 2011, he was given a sleep aid which provided temporary relief.  After a multi-month battery of tests, he was diagnosed with a seizure disorder, also known as epilepsy.  He provides evidence of the diagnosis from the Department of Veterans Affairs (DVA) and a recent prescription for anticonvulsant medication.  

The alleged incident was the result of a complex partial seizure.  The Epilepsy Foundation describes lack of understanding of the medical condition and the frequent misunderstandings by police.  In the aftermath, he would have multiple seizures.  The police with jurisdiction provided a statement to the Air Force indicating their belief he was suffering from an unknown medical problem.  A military neurologist concluded after reviewing the evidence a complex partial seizure would explain the events.

He provides a sequential breakdown of the events.  He was at a festival sitting in a tent with picnic tables when the incident occurred.  There were a lot of people consuming alcohol.  He was acting as his spouse’s wingman as she had been drinking with friends.  He is witnessed being offered an ice bag due to his face turning red (which is a sign of a seizure).  His last recollection of feeling hot and disoriented was shortly after consuming a small amount of alcoholic beverage.  There is zero chance alcohol had anything to do with his loss of memory or subsequent actions.  A seizure begins suddenly whereas intoxication is a slow process.  

The commander’s actions were capricious.  He failed to consider the case in a reasonable timeframe and did not investigate the claims of the police, especially given his flawless record and that he had been selected for promotion to the grade of colonel (O-6).  The commander had only taken his position less than a month earlier and inherited a base where alcohol related incidents were rampant.  He would shortly be the first commander in Europe to ban sales of alcohol during certain hours and the first to ban alcohol in the dormitory areas.  It is clear he was simply held up as an example.  

He has had many seizures.  The feelings after every seizure are the same, tiredness, headache, shivers, unable to think clearly, dizziness and amnesia of the event.  Despite his pleas to discuss his case with the Belgian Police who thought he was suffering from a medical problem, his commander did nothing.  After over 20 years of excellence, he was given zero consideration.  

While no standard of proof applies to Nonjudicial Punishment (NJP) proceedings, commanders should recognize that a member is entitled to demand trial by court-martial, in which case proof beyond a reasonable doubt is a prerequisite for conviction.  If such proof is lacking, NJP action is usually not warranted.  Another reason for the standard of proof is that unusual events do happen.  He has provided evidence that alcohol can cause a seizure many hours or even days after extremely heavy drinking.  There is more than a scintilla of relevant evidence which is reasonable and credible to explain the events of 10 September 2011 as the result of a complex partial seizure.  

The Belgian Police contacted the Air Force to notify them of their opinion that he was suffering from an unknown medical problem.  They said his behavior was exceptionally odd.  Despite asking him dozens of times for his name and asking him he if was injured, he never responded.  The police did not believe this was normal drunken behavior and as a result called an ambulance.  

There is only one medical condition that can explain his total amnesia, extreme intermix of emotion such as taking one individual for help while assaulting another simultaneously, extreme belligerence toward someone who approached him to provide help, and grabbing someone and not letting go.   The only medical condition that requires no medical assistance or medication as the brain eventually naturally recovers, and many other subtle oddities are stereotypical of a complex partial seizure.   

In his response to the Article 15, he stated he had been suffering a number of health problems and had trouble sleeping for years.  He had taken sleeping aids that contained the ingredient diphenhydramine, which recently became ineffective. He was having memory problems, difficulty concentrating, difficulty communicating, headaches, night panic and anxiety.  It is noteworthy that he had made this statement well before he knew he had a seizure disorder.  

There is universal acceptance that alcohol plays a factor in seizures.  However, it is not the consumption but rather the withdrawal from alcohol that is known to induce seizures.  Based on his research, these seizures can impact those with severe prolonged alcohol abuse and occur several days after binge drinking.  He had roughly the equivalent of a glass of wine in his system at which point he lost his memory.  

He had no choice but to retire as he was going to meet a Selective Early Retirement Board (SERB) which he had no chance to survive.  This is supported by his receiving a “Do not Retain” recommendation.   He would have stayed on active duty had this injustice not happened.  He requests he be retired in the grade of colonel to coincide with the date of this injustice being overturned.  He also requests all leave be restored to include his terminal leave that was taken and that residual leave be sold.   

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

STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 13 December 1990.

According to AF Form 3070, Record of Nonjudicial Punishment Proceedings (Officer), dated 26 October 2011, the applicant received an Article 15 for the following which occurred on or about 10 September 2011 at or near Mons, Belgium:

Violation Article 95, Uniform Code of Military Justice (UCMJ), in that he resisted being apprehended by a master sergeant, an Armed Forces policeman authorized to apprehend him.

Violation of Article 128, UCMJ, in that he unlawfully grabbed a technical sergeant by the throat with his hands; and assaulted a corporal who was known by him to be in the execution of his military law enforcement duties by biting him on the hand with his teeth and kicking him in the chest.  

Violation of Article 134, UCMJ, in that he wrongfully communicated a threat to a staff sergeant that he would kill him, which conduct was prejudicial to good order and discipline.  He was drunk and disorderly, which conduct was of a nature to bring discredit upon the Armed Forces.  

Punishment included forfeiture of pay in the amount of $4,035.00 per month for two months and a reprimand.  The reprimand stated he was selected to fill his current position to represent the United States Air Force in the most positive light possible in a multi-national environment which he failed to do by his criminal conduct. All airmen have the duty to drink responsibly regardless of grade.  His irresponsible use of alcohol resulted in him assaulting several individuals and caused offense to many others.  The 3 AF/CC determined the Article 15 would be filed in the applicant’s Officer Selection Record (OSR).  

The applicant provides a letter from his military physician dated 28 October 2011 which states that approximately one week after the incident of 10 September 2011, he spoke with a member of the Belgian Federal Police who was on duty when the applicant was brought into custody.  The police officer stated he considered it possible there were other issues, environmental, medical or a combination of the two that may better explain the applicant’s behavior.  He speculated a possible heat stress connection and questioned whether the applicant may have unknown/underlying medical conditions that contributed to his actions.

The applicant received a referral OPR for the reporting period ending 7 January 2012.  The reason for the referral OPR was an off-duty incident which resulted in NJP action for violations of Articles 95, 128, and 134 of the UCMJ.  

In a letter dated 29 March 2012, the 86 AW/CC informed SAF/GCM that before taking NJP action, he reviewed all eyewitness statements from the night of the offenses.  He reviewed all written and oral matters, including the medical provider’s memorandum.  He concluded after careful consideration that the applicant’s misconduct was the result of his overindulgence of alcohol and not due to any of his alternative theories.  The alternative theories struck him as too remote and he did not find the medical provider’s summary opinion to be persuasive and accordingly found the applicant guilty of the offenses and recommended his removal from the colonels’ promotion list.  

In a letter dated 29 March 2012, the 3 AF/CC stated his role in the applicant’s Article 15 was as the Reviewing Authority for the OSR decision.  He concluded the applicant knew he was taking prescription medicine and that he made the conscious decision to consume alcohol while on prescription medicine.  Therefore, he was responsible for his actions.

The applicant received a referral OPR for the reporting period ending 7 January 2013.  The reason for the referral report was that he failed to maintain fitness standards.  

On 12 March 2013, the applicant applied for retirement.  The unit and major command commanders recommended he be retired in his current grade of lieutenant colonel.  In a letter dated 11 October 2013, AFPC/DPSOR forwarded the applicant’s Officer Grade Determination (OGD) for review by the Secretary of the Air Force (SecAF) in accordance with AFI 36-2603, Service Retirements.    

In a letter dated 17 May 2012, SAF/IGS informed the applicant his complaint filed on 22 April 2012 was thoroughly reviewed and it was determined there was no credible evidence of misconduct on the part of any individual, to include the 86 AW/CC.  Therefore, his complaint was dismissed without further action.  The applicant was advised he could submit an application to the AFBCMR per 10 U.S.C. § 1552 if he believed he was the victim of an error or injustice. 

On 12 November 2013, the SecAF determined the applicant served satisfactorily in the grade of lieutenant colonel (O-5) within the meaning of 10 U.S.C. § 1370(a)(1).  

On 1 June 2014, the applicant retired in the grade of lieutenant colonel (O-5) with a narrative reason for separation of “Voluntary Retirement: Sufficient Service for Retirement.” He was credited with 23 years, 5 months and 18 days of active duty service.  

According to a DVA rating decision provided by the applicant, his condition of seizures (also claimed as transient alteration of awareness) was rated at 20 percent for compensation effective 1 June 2014.   

The AFBCMR staff assigned AFBCMR Docket Number BC-2015-05102 to the applicant’s DD Form 149, Application for Correction of Military Record, dated 1 December 2015. The applicant submitted an additional DD Form 149 dated 28 July 2016, which was assigned AFBCMR Docket Number BC-2016-03051.  However, since the requests for removal of the Article 15 and promotion propriety overlap and correspond to the same event of 10 September 2011, the two DD Forms 149 were combined into one case file (BC-2015-05102).   

The remaining relevant facts pertaining to this application are described in the memorandums prepared by the Air Force offices of primary responsibility (OPR), which are included at Exhibits D through K.  

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial for set aside of his Article 15 as there is no evidence of an error or injustice.  The applicant does not make a compelling argument the Board should overturn the commander’s original NJP decision.  AFLOA/JAJM also finds no new evidence that may have altered the findings and recommendations of his commander.  The applicant was afforded all procedural due process rights during the NJP proceedings.  The commander’s ultimate decision on the Article 15 action is firmly based on the evidence and the punishment decision was within the limits of the commander’s authority.

On 11 [sic] September 2011, the applicant and his family attended a festival in Mons, Belgium.  He consumed five alcoholic beverages within six and a half hours and became irritable.  He grabbed a technical sergeant (around the throat), bit a corporal on the hand and kicked him, threatened to kill a staff sergeant security forces member and resisted apprehension by another security forces officer.  

On 27 October 2011, the applicant was offered NJP stemming from his actions and behavior.  The applicant was charged with resisting arrest, in violation of Article 95, of the UCMJ, two specifications of assault consummated by battery, violation of Article 128, UCMJ, and two specifications for engaging in conduct prejudicial to good order and discipline, violation of Article 134, UCMJ.  He was afforded the opportunity to consult with counsel, accepted the Article 15, and waived his right to demand trial by court-martial.  He elected to present written matters and chose to make a personal appearance before his commander.  On 4 November 2011, after reviewing the evidence and matters presented, the 86 AW/CC found the applicant guilty of the alleged offenses and imposed a punishment of a reprimand and a forfeiture of his pay in the amount of $4,035.00 for two months.  The applicant elected not to appeal the decision.

The applicant argues the 86 AW/CC did not consider, or at the very least, did not give proper weight to his medical history.  The applicant introduces uncorroborated record of events of 11 [sic] September 2011 which includes a list of every action he took on the date of the incident and uses unconfirmed medical authority to detail a possible medical explanation for each mishap.  He provides a neurologist’s medical note dated 22 April 2013 suggesting a seizure was a “reasonable possibility” at the time of the incident.  However, in the same medical report, the neurologist also specifies that while a complex seizure could explain his conduct, the medical evidence did not reveal an abnormal EEG or brain MRI.  In the applicant’s response to the Article 15, he stated he had been taking allergy medication at the time of the incident and had been on sleeping aids for year.  This was in the applicant’s control as he knew he was taking antihistamines.  He also acknowledged it was an unusually hot day and that it could have caused dehydration; nonetheless, he chose to drink alcohol.

The applicant maintains that the standard of proof was not correctly followed in the NJP proceedings.  He argues the action was capricious because NJP requires the highest level of proof and his case was adjudged using the lowest which is not in accordance with the definition provided in AFI 51-202, Administration of Military Justice, Section 3.4.  However, the applicant confuses the language within Section 3.4 of AFI 51-202, arguing that all NJP proceedings and subsequent appeals are adjudged pursuant to a proof beyond a reasonable doubt standard.  Section 3.4 states that there is no specific standard applied to NJP proceedings.  Only if a member demands a trial by court-martial is the proof beyond a reasonable doubt standard applicable.  Within his AFBCMR application, he makes several references to the definition of “standard of Proof” in Section 3.4.  These references combined with acceptance of the NJP demonstrate the applicant was aware of his right to demand a trial by court-martial, where proof beyond a reasonable doubt is a prerequisite to conviction, and he voluntarily waived his right to a trial by CM.

The commander exercised the discretion that the applicant granted him when he accepted the Article 15, and subsequently found it appropriate in his case.  The legal reviews conducted in the case show the commander did not act arbitrarily or capriciously in making his decision. In addition, during the processing of the applicant’s promotion propriety action in April 2012, the NJP was again scrutinized in three separate legal reviews culminating in the SAF/GC review.  All legal reviews found the NJP legally sufficient.  In the SAF/GC legal review, it is noted that the applicant provided “a plausible explanation for his behavior” but ultimately was “satisfied that the applicant’s evidence was given appropriate consideration” and provided that the Article 15 was appropriate.  The determination is consistent with the law and the facts.  

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

AFPC/DP2SPE recommends denial for removal of the Promotion Recommendation Form (PRF) and OPRs.  The applicant has not provided compelling evidence to substantiate the contested PRF and OPRs were unjust or inaccurate as written.  

Based on the lack of corroborating evidence and the presumed legitimacy of the senior rater’s overall recommendation on the PRF, altering the recommendation would question the integrity of the existing PRF as completed.  

The applicant’s OPR was referred for the comment which states, “An off-duty incident resulted in NJP for violations of Articles 95, 128 and 134 if the UCMJ.”  The applicant states in the months following the incident, he was diagnosed with having seizures and the military neurologist concluded his disorder could have caused the alleged incident.  In accordance with AFI 36-2406, Officer and Enlisted Evaluation Systems, paragraph 1.3.1, dated 15 April 2005, evaluators are strongly encouraged to comment in performance reports on misconduct that reflects a disregard of the law, whether civil law or UCMJ, or when adverse actions such as Article 15, Letters of Reprimand (LOR), admonishment (LOA) or counseling (LOC) or placement on the control roster have been taken.  The applicant provides no evidence to show that the referral comment on the OPR was inaccurate or unjust; therefore, the inclusion of the referral comment on the OPR was appropriate and within the evaluator’s authority to document the given incident.  Moreover a final review of the contested evaluation was accomplished by the additional rater and a subsequent agreement by the reviewer/commander served as a final “check and balance” in order to ensure the report was given a fair consideration in accordance with the established intent of the Officer and Enlisted Evaluation System.

The applicant also contends that his PRF for board P0612B should be removed due to a promotion propriety action.  The applicant received an overall recommendation of Do Not Promote (DNP) with comment that he received an Article 15 and a referral OPR during the past year.  The applicant states he was removed from the promotion list as a result of a single alleged incident.  He further states his commander’s actions were capricious and his lawyer’s request to obtain a doctor’s opinion was rejected.  In accordance with AFI 36-2406, paragraph 1.8.1, in deciding whether to document adverse information on the performance evaluation, evaluators must consider the vast majority of airmen serve their entire career with honor and distinction; therefore failure to document misconduct which reflects a departure from the core values of the Air Force is a disservice to all airmen competing for promotion.  Based upon the legal sufficiency of the Article 15 as rendered, DP2SPE finds its mention in the applicant’s contested report was appropriate as there is no basis to support removal of the contested evaluation.  

Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record.  Additionally, it is considered to represent the rating chain’s best judgment at the time it is rendered.  To effectively challenge an evaluation, it is necessary to hear from the rating chain or other credible officials who had firsthand knowledge of the situation, not only for support, but also for clarification and explanation.  The applicant has failed to provide any information from any credible officials or agencies on the contested PRF and OPR and it is determined that the reports were accomplished in accordance with applicable Air Force policies and procedures.  Once a report is accepted for file, only strong evidence to the contrary warrants correction or removal.  The burden of proof is on the applicant and he has not substantiated the PRF and OPR were not rendered in good faith by all evaluators based on the knowledge available at the time.  

A complete copy of the AFPC/DP2SPE evaluation is at Exhibit E. 

AFPC/DP2SP recommends denial for removal of the propriety action. AFI 36-2501, Officer Promotion and Selective Continuation, states commanders question promotion when the preponderance of evidence shows the officer has not met the requirement for exemplary conduct set forth in 10 U.S.C. § 8583 or is not mentally, physically, morally or professionally qualified to perform the duties of the higher grade.  Air Force policy also states that formal rules of evidence do not apply to a promotion propriety action.  All actions were reviewed by Air Force legal officers and were found to be legally sufficient to warrant the action taken.  Promotion is not a reward for past service but is an advancement to a position of greater responsibility based on the requirements of the Air Force and the officer’s future potential.  If an officer has not met the requirement for exemplary conduct set forth in 10 U.S.C. § 8583 or is not mentally, physically, morally, or professionally qualified to perform the duties in the next higher grade, it is in the best interest of the Air Force for the proper authority to initiate action to delay promotion, to find an officer not qualified for promotion, or to remove the officer from a promotion list.

On 28 December 2011, the 86 AW/CC initiated action to remove the applicant’s name from the CY10C Colonel Line promotion list.  The specific reasons for the action was his violations of the UCMJ to include resisting apprehension, multiple assaults consummated by battery, drunk and disorderly conduct and communicating a threat.  Specifically on 10 September 2011, while at a festival in Belgium, he became inebriated to the point that he was drunk and disorderly.  His conduct included physically assaulting a technical sergeant by grabbing his throat with his hands.  Then when approached by law enforcement, he physically resisted arrest and bit an officer on the hand.  He also threatened to kill a staff sergeant who was trying to assist him.

On 23 January 2012, the 3 AF/CC concurred with the recommendation that the applicant’s name be removed from the promotion list.  At the request of SAF/GC, the 86 AW/CC and 3 AF/CC provided rationale for the decision to remove the applicant’s name.  SAF/GC was satisfied the evidence given was appropriate and that both the Article 15 and promotion propriety action were appropriate.  On 12 April 2012, the SecAF approved the removal from the promotion list.  AFI 36-2501, paragraph 5.7.3.1, states an officer will be given the opportunity to comment on all derogatory information added after the officer first reviews and acknowledges the initial recommendation.  However, since the content of the 86 AW/CC and 3 AF/CC memorandums contained only the commander’s justification for their recommendations and did not contain any new derogatory information, it was not required to be referred to the applicant.

A complete copy of the AFPC/DP2SP evaluation is at Exhibit F.  

AFPC/DP2STM recommends denial of the request that he be retired in the grade of colonel.  The applicant was removed from the promotion list for UCMJ violations and was not promoted to the grade of colonel.  Additionally, if he had been promoted to the grade of colonel prior to retirement, he would not have completed the required time-in-grade prior to his retirement effective on 1 June 2014.  His records indicate the appropriate procedures were followed regarding his retirement and retired grade determination, and the applicant’s order correctly reflects this information.  To grant relief would be contrary to the criteria established in 10 U.S.C. 10 § 370(a) and AFI 36-3203, Service Retirements, dated 8 September 2006.  

On 27 February 2013, the applicant applied for retirement with a requested retirement effective date of 1 June 2014.  Upon review of his records, the commander determined he had an Article 15 within two years of the date of application and therefore an OGD was required per 10 U.S.C. § 1370 and AFI 36-3203, which states that the Secretary of the Air Force or designee may retire an officer in a grade lower than the highest grade held when a determination is made that the officer did not serve satisfactorily in the higher grade.  On 12 November 2013, SAFPC determined the applicant did serve satisfactorily in the grade of lieutenant colonel and directed he be retired in the grade of lieutenant colonel.  On 15 November 2013, the applicant acknowledged receipt of the decision to retire him in his current grade and on 30 November 2013, he was issued retirement orders reflecting his current grade and retired grade as lieutenant colonel.  

A complete copy of the AFPC/DP2STM evaluation is at Exhibit G.  
The BCMR Medical Consultant recommends a supplemental opinion from the Mental Health Consultant be rendered since a treating neurologist prescribed the applicant an anticonvulsant for a condition which the DVA has established as a nexus with his military service and granted compensation. Given the competing possible causes of the applicant’s aberrant behavior, solely alcohol related, but albeit possibly precipitated by alcohol consumption, the BCMR Medical Consultant recommends consideration. However, since this is a matter of a negative behavioral response due to possible multifactorial causes, the Medical Consultant recommends a review by the Mental Health Consultant.  

On 31 October 2011, the applicant’s physician provided a memorandum noting the applicant asked him to give a statement of the events that occurred on 10 September 2011.  His physician stated, “It is my opinion that the combination of two different antihistamines, used, dehydration and alcohol led to the event that occurred.”  He further stated long-term insomnia, sleep deprivation and possible heat related injury were contributing factors.    

In the applicant’s response to the Article 15, he introduced information from a medical source on the plausibility that he experienced a heat stroke, based on information on the recognized adverse effects of antihistamines on heat regulation and the fact that alcohol could magnify the effect and antihistamines alone could cause anticholinergic toxicity which he stated created similar symptoms to what he exhibited on 10 September 2011.  

The Belgian Federal Police thought his behavior was the result of a medical problem and took action to notify the Air Force.  There was evidence he had been suffering from a type of seizure that commonly mimics drunken behavior and results in many false arrests, there was also consideration of a possible heat stroke.  The applicant alleged experiencing several other incidents over the past 12 months with similar circumstances.  In the first incident, he had a tremendous headache followed by slurred speech and disorientation.  A second incident occurred when he went to lunch with friends.  He suddenly turned red in the face and became disoriented and had difficulty speaking.  A third incident was when he was on the telephone and again had difficulty speaking and had a tremendous headache.  Most recently, he indicated he was suffering a seizure onboard an international flight, an event in which he once again suffered memory loss.  Two days later, he would have another seizure and be taken to the hospital.  On 11 September 2012, a full year after the incident, he was reportedly diagnosed with pre-diabetes, early diabetes, or impaired glucose tolerance and his symptoms could have been caused by either hyperglycemia or hypoglycemia.  

The applicant attributes every one of his symptoms and behavioral acts (use of profanity, combative behavior followed by submissiveness, grabbing an individual by the throat, biting an individual and making a verbal sexual advance) on the signs and symptoms of Complex Partial Seizure Disorder.  A consulting neurologist in 2013 believed it was possible that the applicant’s behavior could be attributed to a Complex Partial Seizure Disorder.  The applicant was prescribed a prophylactic, anticonvulsant and has been awarded service connection and compensation for seizure disorder by the DVA; despite his previous negative work up.

The applicant provides information from a reputable epilepsy authority.  The poorly defined symptoms he reported prior to September 2011, coupled with the reality that he has since been formally diagnosed with and treated for a seizure disorder, albeit likely only as a precautionary measure, leads the Medical Consultant to favorably consider the applicant’s petition for establishing a causal relationship between his actions and a medical condition.  Unfortunately, there was no opportunity to conduct a critical objective clinical assessment at the time, such as a breathalyzer test, blood alcohol level, drug screening, or a urinalysis for evidence of rhabdomyolysis from heat illness, particularly since it has also been shown that alcohol consumption may also precipitate seizures.  Thus what remains relevant in the case is the fact that the applicant’s aberrant behavior immediately followed consuming a final drink of Aquavit and he apparently lost control with reality.  Given the competing possible causes of his aberrant behavior, solely alcohol related (without a seizure disorder) versus an undiagnosed seizure disorder (which would not have been within his span of awareness and control) but albeit possibly precipitated by alcohol consumption, the Medical Consultant recommends consideration of granting the applicant relief. 

A complete copy of the BCMR Medical Consultant’s evaluation is at Exhibit H.

AFPC/DPFCS makes no recommendation and provides an advisory for information only.  As provided in 38 U.S.C. § 1965-1979, any member of a uniformed service on active duty is automatically covered by SGLI at the maximum level which is currently $400,000 upon entry into the Armed Services.  A review of the applicant’s record reflects he was paying for the maximum insurance coverage under the SGLI program at the time of retirement.  Since he had not reduced or declined coverage he would be eligible for maximum coverage should his active duty service date be extended.  The applicant would be charged the current SGLI premium rate (currently $29.00 monthly); if reinstated.  This would include retroactive premiums from the original date of retirement to the date he might be returned to duty.  Then continue each month in which he remains in an active duty status or elects to reduce or decline coverage.  Further, if the applicant’s active duty date is extended, and if he has suffered a qualifying loss since his 1 June 2014 retirement date, he would be eligible to file a claim for losses under the Servicemember’s Group Life Insurance (SGLI), Traumatic SGLI or Family Servicemembers’ Group Life Insurance programs due to the automatic continuation of coverage eligibility through his extended retirement date.  

A complete copy of the AFPC/DPFCS evaluation is at Exhibit I.

AFPC/DP2SSM recommends denial for restoration of accrued leave at time of retirement.  The applicant failed to provide documents of accrued leave at time of retirement.  Per the applicant’s DD Form 214, he was not paid for accrued leave, which means there was no accrued leave to be paid at the time of his retirement.  

In accordance with AFI 36-3003, Military Leave Program, AFGM 7, dated 15 October 2013, paragraph 4.6, Payment for Accrued Leave, 37 U.S.C. § 501, is the authority for payment for accrued leave.  It limits payment of accrued leave to 60 days in a military career effective 10 February 1976.  Additionally, paragraph 6.7 states terminal leave is chargeable leave taken in conjunction with retirement or separation from active duty and the last day of leave coincides with the last day of active duty. 

DP2SSM can only advise on removal of an Unfavorable Information File (UIF) and not for the request that the Article 15 be expunged.  However, DP2SSM concurs with AFPC/JA to deny relief for removal of the Article 15 as there was no evidence of an injustice in the issuance of the Article 15.  AFI 36-2907, Unfavorable Information File (UIF) Program, paragraph 2.5.2.6, states the wing commander (or equivalent), imposing or issuing authority, whichever is higher, may direct removal of derogatory data from the OSR at any time; or the officer may appeal to have the derogatory data removed after one In the Promotion zone (IPZ) or Above the Promotion Zone (APZ) consideration.  Removing an officer’s UIF early does not remove the derogatory data from the OSR.  

A complete copy of the AFPC/DP2SSM evaluation is at Exhibit J.

The BCMR Psychiatric Consultant finds sufficient evidence to warrant the desired change of the record.  The Psychiatric Consultant is in agreement with the BCMR Medical Consultant and finds no indication to disagree with the diagnosis of a seizure disorder, provided by a military neurologist and recommends granting the applicant relief.  The Psychiatric Consultant finds the decisions of the Military Department represented an error.

The applicant’s contention is very challenging to prove or disprove due to a number of factors.  He did not undergo a medical evaluation following his aggressive behavior on 11 September 2011 while at the festival.  The second challenge rests on the diagnostic difficulty of the seizure disorder.  Furthermore, the deviant behavior displayed by the applicant, most likely was multifactorial in nature, with multiple factors, possibly harmless on its own, aggregating and producing a striking change in his conduct.  In his petition, he lists multiple medical explanations for his behavior ranging from glucose metabolism to dehydration.  However, since the case file lacks any objective clinical evidence, his arguments are just hypothetical scenarios.

The description of the applicant’s behavior that he punched, choked, talked gibberish, swore at military police while at the same time asking for help and that the ambulance refused to transport him due to his belligerence is not consistent with the behavior of an intoxicated individual, but rather describes someone who is severely confused, disoriented and or delirious. The determination of his alcohol level at the time of the incident is not a simple task and could have been affected by multiple variables.  It is highly unlikely that his blood alcohol level was tremendously elevated after five drinks consumed in six hours.  On the other hand, his behavior could be suspect for drug abuse or a delirium due to an unknown medical condition.  The Psychiatric Consultant opines that more likely than not, a 43 year old, senior Air Force officer without any history of substance abuse, going out to a festival with his wife and son would not take mind altering substances to enhance his experience.  The other possible explanation is if someone “laced” his drink without his knowledge.  This scenario is also highly unlikely, unless the applicant was attending a college sorority party.

This opens the Board to the possibility that an unknown medical condition could explain the violent, uncharacteristic behavior of the applicant.  The Psychiatric Consultant is inclined to agree with the neurologist who on 22 April 2013 concluded it is possible that a complex seizure could explain the event which occurred a year ago, but no evidence of an abnormal EEG or brain MRI.  Even if one is to be very skeptical of the applicant’s medical complaints following his misconduct, the case file includes a medical note preceding the incident from 2 March 2011 when he described “spells” that he experienced difficulty finding words while talking to a group of people and he also experiences some anxiety which he thinks could be “panic attacks.”  In other words, there was evidence of an unidentified neurological problem even prior to the 11 September 2011 event.  The military neurologist arrived to the reasonable conclusion that his abnormal behavior could be a result of a complex seizure.  Diagnosis of a seizure disorder can be a challenging task and a negative EEG and MRI do not fully exclude a seizure disorder.  Furthermore, the applicant reported that since the initiation of the antiepileptic medication, his seizure episodes have resolved and per his VA records, he continues to take Lamotrigine, a medication prescribed for a seizure disorder.  

A complete copy of the BCMR Psychiatric Consultant’s evaluation is at Exhibit K.  

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 18 April 2017 for review and comment within 30 days (Exhibit L).  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 to warrant granting any of the requested relief.  The BCMR Medical and Psychiatric Consultants recommend approval; however, we disagree. In this respect, it is our determination the evidence does not clearly demonstrate it was a seizure or a medical condition which caused the applicant’s misconduct on 10 September 2011.  The recommendation for approval is based on an evaluation on 31 October 2011 (a month after the incident on 10 September 2011) in which his medical provider indicated a fifth drink combined with a double dose of antihistamines, dehydration, fatigue and heat may have been contributing factors.  In our opinion, this does not substantiate his misconduct was the result of a medical condition.  The Psychiatric Consultant also opines that on 11 March 2011, preceding the incident, he complained of difficulty speaking and having feelings of anxiousness as evidence he may have been suffering from an undiagnosed medical condition.  However, the applicant’s behavior on 10 September 2011, which included assault, resisting arrest and belligerence are not similar to the symptoms addressed in the earlier evaluation.  Therefore, we do not find the assertion he may have been suffering from an undiagnosed medical condition persuasive to explain his behavior on 10 September 2011.  The Medical and Psychiatric Consultants also note on 22 April 2013 (18 months after his misconduct) a neurologist concluded he likely had a complex seizure, although there was no evidence of an abnormal EEG or brain MRI.  We note the applicant is now diagnosed and being treated for a seizure disorder; however, there is no evidence to corroborate he did in fact have a seizure or experienced a medical condition on 10 September 2011 and that the seizure or medical condition caused his misconduct.  Although we are pleased the applicant is receiving treatment, and compensation, from the DVA for his seizure disorder, we find the DVA rating irrelevant to this case.  In this respect, under 38 U.S.C., the DVA is empowered to provide compensation for any medical condition related to service regardless of the impact on service.  Thus, we find the DVA rating decision is not evidence the applicant’s misconduct was the result of a seizure and he has provided no evidence of a nexus of the DVA rating and the misconduct.  The Medical and Psychiatric Consultants also note this is a multifactorial and complex case, his contentions are very difficult to prove or disprove and acknowledge there are competing possible causes for his aberrant behavior (alcohol related or an undiagnosed seizure disorder, possibly precipitated by alcohol consumption).  They further indicate his case file lacks any objective clinical evidence and many of his arguments are largely hypothetical.  Although the Psychiatric Consultant states he was likely not overly intoxicated after consuming five alcoholic drinks, there is no evidence to conclude this to be the case since there was not a determination to his level of intoxication.  We do not dispute that the combination of alcohol, medication and environmental factors may have accentuated the applicant’s behavior.  However, the evidence clearly demonstrates he chose to drink alcohol while taking medication.  Moreover, we find the applicant’s consumption of five alcoholic beverages at the same time he was his wife’s wingman while attending an off-base festival in a foreign country with his family irresponsible, reckless and in violation of the standards of conduct and Air Force core values.  Every airman is expected to drink responsibly and is accountable for their actions.  The evidence in this case, clearly substantiates the applicant did not drink responsibly.  

We also do not find any evidence of an error or injustice in the processing of his Article 15.  As pointed out by AFLOA/JAJM, the applicant was afforded all procedural due process rights during the NJP proceedings.  The applicant could have elected trial by court-martial which would have required proof beyond a reasonable doubt; however, he elected to accept the Article 15 and did not appeal the determination of guilt or punishment.  The applicant’s NJP action underwent several levels of legal review to include by SAF/GC.  As stated by 3 AF/CC on 29 March 2012, it was his own regretful choice to consume alcohol while taking medication.  Therefore, we agree with the opinion and recommendation of AFLOA/JAJM that the applicant has not sustained his burden of proof that he has been the victim of an error or injustice to warrant removal of the Article 15.

With respect to the applicant’s requests for removal of the promotion propriety, that he be promoted to the grade of colonel and retired in the grade of colonel with back pay and interest; we find no evidence of an error or injustice to warrant granting relief.  Per 10 U.S.C. § 8853 and AFI 36-2501, commanders are required to question promotion when evidence shows an officer has not met exemplary standards or is not mentally, physically, morally or professionally qualified to perform the duties of the higher grade.  In this respect, it is our opinion his commander had sufficient basis to proceed with requesting his name be removed from the CY10C Colonel Line CSB, which was within his authority and discretion.   The applicant argues that after 20 years of honorable service, he was not given any consideration; however, the applicant is reminded that promotion is not a reward for past service but is based on potential to service in the higher grade.  The applicant also asserts his commander acted arbitrarily and capriciously; however, other than his own uncorroborated assertions, we find no evidence this to be the case.  In this respect, we note in a letter dated 17 May 2012, SAF/IGS informed the applicant his IG complaint was reviewed and it was determined there was no credible evidence of misconduct on the part of any individual, to include the 86 AW/CC, and his complaint was dismissed without further action.  The applicant was also not in the grade of colonel at the time of his voluntary retirement and 10 U.S.C. § 1370 requires a three year active duty service commitment to retire in the grade of colonel which the applicant did not complete.  The applicant by his own admittance states he requested voluntary retirement in the grade of lieutenant colonel in order to avoid a Selective Early Retirement Board (SERB).  In this respect, we are persuaded promoting the applicant to the grade of colonel would be an injustice to others similarly situated who served with honor and distinction and elected voluntary retirement in lieu of being confronted by a SERB.  In view of the above, we agree with the opinions and recommendations of AFPC/DP2SP and AFPC/DP2STM that relief be denied.

The applicant also requests removal of his referral OPRs.  However, the referral OPR for the period ending 7 January 2012 was result of his misconduct on 10 September 2011 and Article 15.  Since we find no reason to remove the Article 15, we find the OPR correct and accurate as written.  The applicant’s referral OPR for the period ending 7 January 2013 was a result of a failed fitness assessment (FA).  He has provided no evidence he did not fail the FA or there was an error or injustice in the administering of his FA; therefore, we find no reason for its removal. Accordingly, we agree with the opinions and recommendations of AFPC/DP2SPE that relief be denied.  

With respect to the applicant’s request that his leave be restored and his SGLI coverage be extended.   He has provided no evidence an error or injustice occurred in the settlement of his leave at the time of his voluntary retirement.  Furthermore, the applicant would accrue leave and be eligible for SGLI coverage should his retirement date be extended.  However, since we find no reason to disturb the applicant’s record, to include his voluntary retirement in the grade of lieutenant colonel on 1 June 2014, we find no reason to restore leave or change his SGLI eligibility.  Therefore, we agree with the opinions and recommendations of AFPC/DPCS and AFPC/DP2SSM to deny relief.  In view of the above, and in the absence of evidence to the contrary, we find the applicant has not sustained his burden of proof that he has been the victim of an error or injustice to warrant granting any of the relief sought in this application.   

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-2015-05102 in Executive Session on 1 June 2017 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-05102 was considered:

	Exhibit A.  DD Forms 149, dated 1 December 2015 and 28 July
			  2016, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, SAF/IGS, dated 17 May 2012
 (WITHDRAWN).
	Exhibit D.  Memorandum, AFLOA/JAJM, dated 11 August 2016.
	Exhibit E.  Memorandum, AFPC/DP2SPE, dated 8 September 
			  2016.
	Exhibit F.  Memorandum, AFPC/DP2SP, dated 27 September 2016.
	Exhibit G.  Memorandum, AFPC/DP2STM, dated 6 October 2016.
	Exhibit H.  Memorandum, BCMR Medical Consultant, dated 
			  7 November 2016.
	Exhibit I.  Memorandum, AFPC/DPFCS, dated 17 November 2016.
	Exhibit J.  Memorandum, AFPC/DP2SSM, dated 1 December 2016.
	Exhibit K.  Memorandum, BCMR Psychiatric Consultant,
			  Dated 31 March 2017
	Exhibit L.  Letter, AFBCMR, dated 18 April 2017.

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.