RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBERS: BC-2011-00661 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His medical condition be reevaluated by competent doctors, and if his allegations are found to be true, he then requests: 1. The negative annotations related to his condition be removed from his record. 2. His two Article 15 actions be removed from his record. 3. His referral Enlisted Performance Reports (EPRs) closing 31 August 2004 and 31 August 2005, respectively, be voided and removed from his record. 4. His rank to staff sergeant (SSgt) (E-5) be restored with his original date of rank of 20 December 1999. 5. His condition be evaluated by an active duty Medical Evaluation Board (MED) to determine if a medical retirement is appropriate. 6. The reason for his discharge be changed. 7. His Montgomery GI Bill (MGIB) expiration date be recalculated to reflect a corrected date. _________________________________________________________________ APPLICANT CONTENDS THAT: His medical condition was misdiagnosed by military doctors. As a result, he received two Article 15s, a demotion in rank, and a 30-day incarceration in Correctional Custody. In addition, his separation resulted in high-year of tenure (HYT) expiration. In support of his appeal, the applicant provides a personal statement and copies of personnel records and medical records. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Regular Air Force who entered active duty on 10 April 1992 in the grade of airman basic (E-1). He served in the Aircraft Armament Systems career field and was progressively promoted to the grade of SSgt. In December 2003, while on active duty, the applicant self- referred to the Life Skills Support Center (LSSC) for feelings of hopelessness and depression. A Mental Health Record, dated 29 December 2003, indicates he was diagnosed with Dysthymic Disorder, Late Onset. The applicant continued treatment at the LSSC for close to two years. A LSSC Record, dated 2 August 2005, indicates, the applicant did not have a medical condition that would warrant referral to an MEB in accordance with Air Force Instruction 48-123. It was noted that he was receiving care that met or exceeded the services indicated for someone with his diagnosis and conditions. The Inpatient Psychiatry Service physician indicated the applicant’s Personality Disorder and Dysthymia Disorder was so severe that his ability to function effectively in the military environment was significantly impaired. It was also indicated that he was not suitable for retention in the Air Force and should be separated as soon as possible. The applicant was informed of the decision, agreed with the recommendation, and desired separation from the Air Force. On 22 April 2004, the applicant received a Letter of Counseling (LOC) for being late to work. The applicant responded that he was currently undergoing medical treatment and that his doctors should be contacted in order to explain why he was late for work. His doctors responded that the applicant’s tardiness to work was not part of what he was being treated for, but was a behavior problem which should be dealt with using administrative actions. On 12 May 2004, the applicant was late to work again. On 22 June 2004, the applicant received a Letter of Reprimand (LOR) for being late to work eight out of nine duty days from the periods 10 June 2004 to 22 June 2004. On 28 June 2004, he received an LOC for being late to work on 28 June 2004. On 21 July 2004, he received an LOR for failure to fulfill the responsibilities of a Non-commissioned officer (NCO). The applicant received a referral EPR for the period 1 September 2003 through 31 August 2004. The EPR cited the repeated counseling for unexcused absences and the LOR for failure to meet responsibilities of an NCO. It also indicated the applicant had excessive absenteeism which led subordinates to seek taskings and guidance from other supervisors/NCOs. On 15 February 2005, the applicant received an LOR indicating he had been late to work 120 times since his last LOR, dated 22 June 2004. In addition he missed five appointments, one briefing, and was not available for escort duty during the required time. On 9 May 2005, the applicant’s commander offered nonjudicial punishment to the applicant for being absent without authority from 12 April 2005 to 14 April 2005, in violation of Article 86, Uniform Code of Military Justice (UCMJ). The applicant accepted the offer of non-judicial punishment and waived his right to demand a court-martial. The applicant provided the commander a written response and also made a personal appearance before the commander. After considering the applicant’s submissions and the evidence in the case, the commander concluded the applicant had committed the offense and imposed punishment consisting of a suspended reduction to the grade of senior airman (E-4). The applicant did not appeal his commander’s decision to the appeal authority and the Article 15 was reviewed and found to be legally sufficient. The applicant was accused of failing to go to his appointed place of duty on 7 June 2005. Based on this incident, his commander vacated the suspension of the applicant’s reduction to the grade of senior airman with a new date of rank of 17 May 2005. Subsequently, the applicant received Article 15 punishment for failing to go to his appointed place of duty on 23-24 June 2005. His punishment consisted of 30-days of correctional custody. The applicant received a referral EPR rendered for the period 1 September 2004 through 31 August 2005; however, the report did not make it into the applicant’s permanent record by the time he separated from the Air Force. Since the applicant was reduced to the grade of senior airman and had over nine years and six months service, his HYT was changed to the maximum of four months after his effective date of demotion. As a result, the Advanced Personnel Data System (APDS) automatically projected him for separation 180 days prior to his established date of separation. The applicant was honorably released from active duty on 1 December 2005 due to reduction in force. He served 13 years, 7 months, and 22 days on active duty. A Department of Veterans Affairs (DVA) Rating Decision, dated 7 July 2008, indicates the applicant received service connection for Sleep Apnea at a 30 percent disability rating; and Dysthymic Disorder and Right Cheek Scar, both rated at 0 percent disability ratings. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denying the applicant’s request to set aside his nonjudicial punishments or vacation action. JAJM states the applicant’s position is not supported by the evidence or by what is included in his application. Based on the facts available to the commander at the time, there is no question that the commander acted within the bounds of his discretionary authority. The applicant was afforded all his procedural rights during the Article 15 and vacation action proceedings. The commander did not act in an arbitrary or capricious manner. The commander had first-hand access to the facts and a unique appreciation for the needs of morale and discipline in his command. The commander relied upon sound evidence in determining the nonjudicial punishment was appropriate and that the suspension should be vacated. The complete JAJM evaluation is at Exhibit C. AFPC/DPSOS recommends denying the applicant’s request to change the reason for separation. DPSOS states that based on the documentation on file in the master personnel records, the discharge was consistent with the procedural and substantive requirements of the discharge regulation. The applicant provided no facts warranting a change to his narrative reason for separation. The complete DPSOS evaluation is at Exhibit D. AFPC/DPSID recommends denying the applicant’s request to void the contested reports. DPSID states the applicant’s referral EPR closing 31 August 2005 did not make it into his permanent record prior to his separation from the Air Force. In regard to the contested report closing 31 August 2004, there is no evidence the contested report is unjust or inaccurate. The applicant believes that his conduct during the reporting period can be attributed to factors that were not taken into account for an evaluation; however, he does not provide strong enough documentation to support any of his allegations. An evaluation report is considered to represent the rating chain’s best judgment at the time it is rendered. Once a report is accepted for file, only strong evidence to the contrary warrants correction or removal from an individual’s record. The burden of proof is on the applicant. He has not substantiated the contested report was not rendered in good faith by all evaluators based on knowledge available at the time. The complete DPSID evaluation is at Exhibit E. AFPC/DPSOE defers to the recommendation of AFLOA/JAJM regarding the applicant’s request to set aside his Article 15s. Should the Board remove the 7 June 2005 Article 15 vacating the suspended reduction in grade, the applicant’s rank would be restored to SSgt with a date of rank of 20 December 1999. The complete DPSOE evaluation is at Exhibit F. AFPC/DPSIT recommends denying the applicant’s request to have his MGIB expiration date recalculated based on the information provided. The complete DPSIT evaluation is at Exhibit G. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 13 September 2011, for review and comment within 30 days. As of this date, this office has received no response. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of 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 that 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 relief sought in this application. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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-2011-00661 in Executive Session on 1 November 2011, under the provisions of AFI 36-2603: The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2011-00661: Exhibit A. DD Forms 149, dated 11 Feb 11, w/atchs. Exhibit B. Letter, AFLOA/JAJM, dated 23 Mar 11. Exhibit C. Letter, AFPC/DPSOS, dated 18 Apr 11. Exhibit D. Letter, AFPC/DPSID, dated 17 Jun 11. Exhibit E. Letter, AFPC/DPSOE, dated 11 Jul 11. Exhibit F. Letter, AFPC/DPSIT, dated 19 Jul 11. Exhibit G. Letter, SAF/MRBR, dated 13 Sep 11. Panel Chair