ADDENDUM TO 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 subsequent negative actions be void and removed from his record.

The promotion propriety removing his name from the colonels’ (O-6) promotion list be void 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 void 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 behavior caused by a verified medical condition. 

He was at a festival sitting in a tent with picnic tables and a lot of people were consuming alcohol.  He was acting as his spouse’s wingman as she had been drinking.  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.  

He was found guilty of drunk and disorderly conduct and assault and received an Article 15.  He was not drunk and there was no sobriety test, breathalyzer or blood alcohol test.  In the following months, he was diagnosed with a seizure disorder/epilepsy.  A military neurologist would conclude a seizure disorder could have caused the alleged incident.  He provides evidence of the diagnosis from the Department of Veterans Affairs (DVA).    

Despite his pleas to his commander 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 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.  
 
The April 2012 promotion propriety was arbitrary and capricious.  The Air Force submitted two different theories to the SecAF as justification to remove his name from the promotion list.  There was a lack of due process and several mandatory legal reviews were bypassed. In response to SAF/GC’s request for additional information, 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.  The 3 AF/CC agreed with the police that the incident was medically related but decided the prescription drugs in question were taken inappropriately with alcohol and as a result he was responsible for his actions.  There is a difference in bad judgment with excessive alcohol and a reaction to some level of alcohol combined with properly taken prescription medicine.  

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 chance of surviving the SERB with his “Do Not Retain” recommendation and had no choice but to request retirement.  He would have stayed on active duty had this injustice not happened.  

The Record of Proceedings in the initial case, with Exhibits, is at Exhibit M.

RESUME OF CASE:

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

He received an Article 15 for his conduct on 10 September 2011 at or near Mons, Belgium which included resisting apprehension by a master sergeant (an Armed Forces policeman), grabbing a technical sergeant by the throat with his hands, assaulting a corporal who was in the execution of his military law enforcement duties and communicating a threat to a staff sergeant.  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).  

He received a referral OPR for the period ending 7 January 2012.  The reason for the referral OPR was the NJP action for violations of Articles 95, 128, and 134 of the UCMJ. 

On 29 March 2012, the 86 AW/CC informed SAG/GCM the applicant’s misconduct was the result of his overindulgence in alcohol and not due to any alternative theories.  He concluded this after reviewing all eyewitness statements and written and oral matters, to include the medical provider’s memorandum. 

On 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 medication 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 subsequent referral OPR for the period ending 7 January 2013 for failure to maintain fitness standards.   

On 12 March 2013, the applicant applied for voluntary retirement.  His commanders recommended he be permitted to retire in his current grade of lieutenant colonel.  

On 11 October 2013, AFPC/DPSOR forwarded the applicant’s Officer Grade Determination (OGD) for review by the SecAF in accordance with AFI 36-2603, Service Retirements.    

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

On 1 June 2014, he 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.  

Based upon the applicant’s requests for corrections, the following offices of primary responsibility (OPR) provided evaluations: 

AFLOA/JAJM recommends denial for removal of the Article 15.  The applicant was afforded all procedural due process rights.  The commander’s decision on the Article 15 was firmly based on evidence and the punishment decision was within the limits of the commander’s authority.  The applicant in his Article 15 appeal stated he had been taking allergy medication at the time of the incident, had also been on sleeping aids for a year and that was an unusually hot day which could have caused dehydration; nonetheless, he chose to drink alcohol.  With respect to his contention on the standard of proof.  The applicant was aware of his right to demand a trial by court-martial where proof beyond a reasonable doubt is a prerequisite.  However, he voluntarily waived his right to trial by court-martial and accepted the Article 15.  

	AFPC/DP2SPE recommends denial for removal of the promotion recommendation, retention recommendation and the referral OPRs as there is no evidence to show the documents were unjust or inaccurate as written.

AFPC/DP2SP recommends denial for removal of the promotion propriety.  Per 10 U.S.C. § 8583, if an officer has not met the requirement for exemplary conduct set forth or is not mentally, physically, morally, or professionally qualified to perform the duties in the next higher grade, it is in the best interest 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.  

AFPC/DP2STM recommends denial of the request that he be retired in the grade of colonel. On 27 February 2013, he applied for voluntary retirement.  Per 10 U.S.C. § 1370 and AFI 36-3203, an OGD was required based on his NJP.  On 12 November 2013, SAFPC determined he served satisfactorily 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.  
  
The BCMR Medical Consultant recommends the Board consider granting the applicant relief given the competing possible causes of his 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.   

AFPC/DPFCS indicated the applicant would be eligible for maximum coverage for SGLI should he be returned to active duty and would be charged the current SGLI premium, if reinstated, to include retroactive premiums from the original date of retirement.

AFPC/D2SSM found no evidence of an injustice in the issuance of the Article 15 per AFI 36-2907, Unfavorable Information File Program.  

The BCMR Psychiatric Consultant found sufficient evidence to warrant the desired change to the record.  There was no indication to disagree with the diagnosis of a seizure disorder.  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 attending the festival.  The second challenge rests on the diagnostic difficulty of a seizure disorder.  Furthermore, the deviant behavior was likely multifactorial with multiple factors.  The determination of his alcohol level is also not a simple task and could have been affected by multiple variables.  It is unlikely his blood alcohol was tremendously elevated after five drinks consumed in six hours.  His behavior could be suspect for drug abuse or a delirium due to an unknown medical condition.  The military neurologist arrived to a reasonable conclusion his abnormal behavior could be a result of a complex seizure.  

On 1 June 2017, the Board denied the applicant’s requests.  The Board determined the evidence was insufficient to determine it was a medical condition/seizure that caused his misconduct.  The Board noted the BCMR Medical and Mental Health Consultants recommended approval but also indicated his contentions were difficult to prove or disprove.  The Board determined it was irresponsible and reckless for the applicant to choose to consume five alcoholic drinks at the time he was taking prescribed medications and attending an off-base festival in a foreign country with his family.  Like all airmen, the applicant was expected to drink responsibly and was accountable for his misconduct.  With respect to his contentions that the NJP and promotion propriety were not warranted due to a reasonable doubt standard, the Board found no evidence of an error or injustice in the processing of his NJP, promotion propriety or his voluntary retirement in the grade of lieutenant colonel.  The Record of Proceedings, with Exhibits, is at Exhibit M.  

The applicant submitted a rebuttal response dated 8 May 2017.  However, his response was not received by the Board until 24 August 2017 and was not considered by the Board.  He objects to the AFLOA legal advisory and would like the Board to know he has an IG complaint against the office which wrote the evaluation.  It is unfair to have this office write the advisory and every subject matter expert has been influenced by the AFLOA/JAJM opinion.

His behavior was far too erratic to have been caused by intoxication and was inconsistent with drunken behavior.  The police opined it could have been the result of a medical problem.  At the time of his Article 15, he had not been diagnosed with this condition.   

The standard of proof for promotion propriety is a mere preponderance of the evidence.  He asks whether the commander would have come to the same conclusion had he known he had a seizure disorder.  There are two medical opinions which recommend approval of his case.

He admits the diagnosis of a seizure disorder is not a get out of jail free card.  However, it should cause a moment of pause and result in a more thorough review of the evidence as the symptoms are nearly identical.  His seizures did not start until after he returned from serving in support of OIF/OEF.

The AFLOA/JAJM advisory fails to tell the Board of the options in his matter.  One standard could be to look at the case de novo, as if the commander never made a decision.  

The medical advisors were negatively influenced by AFLOA.  Despite the erroneous legal advice, the Psychiatric Consultant came to the conclusion his behavior was not consistent with that of an intoxicated individual but describes someone who is confused, disoriented or delirious.  A psychiatrist is an expert in treating mental disorders; hopefully, her opinions hold significant weight.

He asks the Board to disregard the first three pages of the Medical Consultant’s evaluation as it contains information from an expunged appeal which is not relevant.  The Medical Consultant states seizures can be brought on by alcohol ingestion, while this is true, it is almost always several days after heavy drinking.  There is a lack of evidence that alcohol caused the incident.

He asks to remain on SGLI because life insurance for individuals with a seizure disorder is costly.  He would like to be on SGLI so he can convert to VGLI upon retirement.

The Retirement/Separations evaluation is flawed since they state for him to be eligible for voluntary retirement as a colonel he would have had to serve on active duty for 3 years in grade.  Had this injustice not taken place, he would still be on active duty and would serve at least 30 years.  He requests the Board establish a new retirement date to coincide with the date this injustice is reversed.

AFPC/DP2SPE concurs with the recommendation of AFLOA/JAJM that he has not demonstrated concrete evidence of an error or injustice.  However, an individual does not need to demonstrate concrete evidence in an NJP appeal.

AFPC/DP2SP is the only opinion written solely to address his promotion propriety.  The 3 AF/CC assumed the prescription drugs had a warning indicating they should not have been taken with alcohol; however, there was no such warning.  He was removed from a promotion list without the opportunity to defend himself against an allegation which was not supported by medical facts.  

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

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3. After reconsidering this application and the evidence presented, to include the applicant’s rebuttal response, we find the applicant has provided no new relevant evidence to warrant granting the requested relief.  The applicant urges the Board to disregard the AFLOA/JAJM evaluation and asserts they unfairly influenced the subject matter experts in his case.  However, other than his own uncorroborated assertions, we find no evidence this to be the case.  The applicant also asserts the NJP and promotion propriety should be void and removed from his records based on reasonable doubt, standard of proof or de novo; however, we find no evidence of an error or injustice in the processing of his NJP or promotion propriety to warrant granting the requested relief on this basis. He also states it was a medical condition/seizure which caused his misconduct and that the Board should grant his application based on the BCMR Medical and Psychiatric Consultants evaluations; however, we disagree.  While the Medical and Psychiatric Consultants conclude a seizure disorder could have attributed to his behavior, they do not conclusively state it was a seizure which caused his misconduct and that it was likely the result of multiple factors.  We also do not find the evidence provided by the applicant persuasive to conclude his misconduct was caused by a medical condition.  In this respect, it is our opinion he displayed poor judgment when he chose to combine alcohol with prescribed medication.  As the applicant states in his rebuttal response, his seizure disorder is not a get out of jail free card.  Therefore, after reviewing the totality of the evidence we agree with the decision of the Board on 1 June 2017 to deny the applicant’s requests.  In the absence of evidence to the contrary, we find the applicant is not the victim of an error or injustice to warrant granting any of 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-2015-05102 in Executive Session on 13 Mar 18 under the provisions of AFI 36-2603:
 
      , Panel Chair
      , Member
      , Member

The following documentary evidence was considered:

	Exhibit M.  Record of Proceedings, w/Exhibits
	Exhibit N.  Letter, Applicant, dated 8 May 2017, w/atchs.

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.