RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER:  BC-2016-01539

						COUNSEL:  NONE

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

His Record of Nonjudicial Punishment Proceedings (Article 15) be removed from his records.

APPLICANT CONTENDS THAT:

He was punished for an incident that was due to an incurable medical condition that was diagnosed by two separate medical doctors.  Two months prior to the incident, he notified his flight leadership of the condition and the symptoms which made him unfit to work a night shift.

His leadership did not express any support or request any medical documentation, nor suggest any avenues to accommodate his condition.  When he asked to be moved to day shift, he was told his request was not granted; however, after the incident occurred, he was immediately transferred from night shift to day shift.

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

STATEMENT OF FACTS:

On 23 Sep 14, the applicant initially entered the Regular Air Force.

On 3 Feb 16, the applicant was given nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for being on post as a sentinel and found sleeping upon his post, in violation of Article 113, UCMJ.  He was reduced to the grade of Airman, with a new date of rank of 3 Feb 16, ordered to forfeit $409.00 pay, suspended through 2 Aug 16, after which time it would be remitted without further action, unless sooner vacated, ordered to perform seven days extra duty, and reprimanded.

On 8 Feb 16, the applicant’s appeal of the NJP action was denied.

Applicant is currently serving on active duty.

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility, which are attached at Exhibits C and D.

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial, indicating there is no evidence of error or injustice.

The applicant does not allege any procedural deficiency, but instead asserts that medical issues that his command was aware of at the time of issuing the NJP contributed to the misconduct he was punished for and should have been a greater mitigating factor in the commander’s punishment decision.  A review of the NJP imposed on the applicant reveals no legal error or injustice which would warrant removal of the NJP from his record or clemency on the punishment imposed.

The applicant stated his misconduct was related to a legitimate medical issue which he tried to resolve.  The medical records provided as part of his Board for Correction of Military Records (BCMR) application are dated after the alleged misconduct, but before the imposition of punishment.  Additionally, the applicant refers to records provided as part of his appeal, but not provided with his application, that predated the NJP action by eight months.  By signing the NJP, the commander signified he took those matters into consideration.

A commander considering a case for disposition under Article 15, UCMJ, exercises discretion in evaluating a case, determining if the accused committed an offense, and if so, what, if any, punishment is warranted and the nature and extent of the punishment. The exercise of that discretion should generally not be reversed or otherwise changed on appeal by the Board absent good cause.  Congress, via the promulgation of Article 15 (10 U.S.C. § 815), and the Secretary of the Air Force, via Air Force Instruction (AFI) 51-202, Nonjudicial Punishment, have vested the responsibility and discretion in the commander and the appeal authority to determine the appropriateness of action under Article 15.  Absent a legal error or injustice, their decision should not be disturbed.

The NJP was processed according to regulation and within the commander’s authority, as was the specific punishment the applicant received.  Whether clemency is appropriate in this case is within the discretion of the Board.

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

Air Force Board for Correction of Military Records (AFBCMR) Medical Advisory recommends granting the applicant’s request or offering clemency with a less severe disciplinary action.

The applicant attended a medical appointment on 25 Jan 16 reporting “problems sleeping effecting job.”  The applicant denied anxiety, depression, or emotional liability.  Exam showed no physical impairment or mood disturbance.  The applicant reported he worked the “graveyard shift” and had difficulty sleeping during the day, and had these issues since December, trying over-the-counter medications and a sleep mask in an effort to get more sleep.  Notes also reflect the applicant was moved back to day shift, temporarily, by his leadership until his sleep issues have subsided.  The applicant was diagnosed with Primary Insomnia and prescribed Trazodone 50 mg taken nightly for sleep.

On 28 Jan 16, the applicant had a follow-up appointment where he reported adverse side-effects from the medication, and stated his sleep issues were controlled while he was on day shift.  The Trazodone was discontinued with the recommendation to start over-the-counter Melatonin, and the applicant was referred to Behavioral Health with a provisional diagnosis of Circadian Rhythm Sleep Disorder, shift work type.

In response to the NJP action, the applicant alleges he notified his supervisor of his inability to sleep and difficulties staying alert at night.  Additionally, the applicant noted he had been coping with this condition for eight months.  He reports, in his application to the Board, that after the incident he was immediately moved to day shift and had zero incidents with falling asleep on post.

The advisory agrees Primary Insomnia and Circadian Rhythm Sleep Disorder can cause lapses in alertness during a period when the individual’s biological clock has been programmed for sleep; commonly observed in early days following an abrupt change in sleep-wake cycle.  The applicant’s comments suggest a longer-term problem.  However, other possible causes were not explored.  The fact that the applicant presented for care after his infraction may appear to some as an effort to find an excuse for falling asleep on duty.

While the applicant’s contention that the incident occurred due to an incurable medical condition appears an overstatement of his condition, his alleged supervisory notification of his potential problem before the incident, the plausible medical explanation of the incident, and the sustained remediation of the problem after the incident leads the advisory to recommend either extracting the Article 15 from the record or fashioning a less severe disciplinary action.

Finally, the medical evidence provided in this case was essentially the same as that provided to the applicant’s commander, so any decision to grant the applicant’s petition would constitute disagreement with the commander’s discretionary action.

A complete copy of the AFBCMR Medical Advisory evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 28 Feb 17 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.  Additionally, we noted the Medical Advisor’s comments and the potential medical explanation for the incident.  However, the applicant provided no evidence of error in the processing of the NJP action, and other than his own assertions, provided no evidence of injustice.  Subsequently, we agree with the opinion and recommendation of AFLOA/JAJM and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice.  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-2016-01539 in Executive Session on 8 Aug 17 under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-01539 was considered:

	Exhibit A.  DD Form 149, dated 14 Apr 16, w/atchs.
	Exhibit B.  Excerpt from Personnel Records.
	Exhibit C.  Memorandum, AFLOA/JAJM, dated 16 Sep 16.
	Exhibit D.  Memorandum, AFBCMR Medical Advisory, dated
	            24 Feb 17.
	Exhibit E.  Letter, AFBCMR, dated 28 Feb 17, w/atchs.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified a quorum was present at the Board's review and deliberations regarding AFBCMR Docket Number BC-2016-01539, and the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.