RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00688 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ _ APPLICANT REQUESTS THAT: His records be corrected to reflect the following: a. His Article 15 that was rendered on 27 Oct 11 be removed. b. His promotion propriety action be reversed and he be promoted to the grade of colonel with an effective date of rank DOR) back to his original DOR with all pay and allowances with interest. c. His Officer Performance Reports (OPR) rendered for the period ending 7 April 2011, 7 January 2012, and 7 January 2013 be voided. d. His Promotion Recommendation Form (PRF) be amended to delete the statement “Do not promote.” e. He be given a Time-In-Grade (TIG) waiver for retirement. f. He be able to negotiate a financial settlement to partially offset both him and his family for enduring suffering, future medical costs, loss of income, defamation, etc. g. As an alternative to receiving a financial settlement, he be provided a statement of opinion indicating that these epic failures by multiple organizations and individuals warrant a waiver of Sovereign Immunity and the various protections offered by the Feres Doctrine to both the government and to individuals responsible for this egregious injustice. ________________________________________________________________ _ APPLICANT CONTENDS THAT: In a 24-page brief and an 11-page detailed account of events, the applicant provides the following key contentions: 1. He was wrongfully given an Article 15 and removed from the colonel’s promotion list due to an alleged assault and drunk and disorderly charge. He plans to prove the following: a. The Belgian Federal Police thought that his behavior was the result of a medical problem and notified the Air Force. Governing instructions were not followed; no one conducted or even attempted to conduct a sobriety test, a Breathalyzer test, or blood alcohol test. c. The evidence will show that the Belgian Federal Police claims were not investigated or given any credibility. It will also show that he had been suffering from a type of seizure that commonly mimics drunken behavior and results in many false arrests. Further, he was suffering from these seizures in the months before, during, and the months after the alleged incident. 2. The alleged incident occurred on 10 Sep 11 at a festival on the SHAPE NATO base in Belgium. He was charged and found guilty of being drunk and disorderly and assault that resulted in him receiving an Article 15, fined $8,070.00, and removed from the colonel promotion list. 3. He was charged with assault for biting, spitting, threatening, and cursing; these actions are rare occurrences even in alcohol related incidents. After being apprehended and brought to the police station, it was noted that he was put in a cell and passed out in a bed. However, once again he suddenly stopped acting in a belligerent manner. The exhaustion felt after experiencing a seizure is indescribable, which was compounded by the struggle. He experienced loss of bladder control at some unknown point, which is a side effect of having seizures, along with having speaking or understanding problems, experiencing sexual feelings and showing sexual behavior, screaming, swearing or crying out. 4. He submitted an Inspector General (IG) complaint stating that he remembered absolutely nothing except for a hard to describe pulsing sensation as if a strobe light were inside his body. 5. He has since continued to experience odd health problems culminating in a series of documented seizures. A military neurologist reviewed the witness statements from the alleged incident and concluded that “at this point is a reasonable conclusion” that the incident was a complex partial seizure due to the quirky and subtle odd behavior exhibited. After being diagnosed and placed on medication for his complex partial seizure, he has not had a seizure in over seven months. 6. On 11 Sep 12, a full year after the incident, the medical community diagnosed him with a form of Diabetes that is known as prediabetes, or impaired glucose tolerance. People who have this condition do not normally notice any symptoms. This type of Diabetes can result in someone experiencing that exact same symptoms as a drunken individual, frequently with erratic and violent behavior that even produces the smell of alcohol on your breath. Only a blood test can differentiate between someone who is drunk and someone who is experiencing a diabetic seizure. 7. He provides descriptions and symptoms from various institutes and studies that are related to individuals who have diabetes, hypoglycemia, pre-diabetes, seizure disorders, and even epilepsy. 8. A brief summary of those findings, one of which is from the National Institute of Health that states, “Diphenhydramine and other antihistamines produce biphasic effects on drug disposition and lower seizure threshold.” He had been taking diphenhydramine for years and then started suffering a variety of odd medical problems to include episodes of confusion and slurred speech. All of those medical problems are specific symptoms of a seizure disorder. a. His research shows that seizures can affect those with severe prolonged alcohol abuse and occur several days after binge drinking. According to Epilepsy.com, “When alcohol is related to seizures, it has been found that it is nearly always the state of alcohol withdrawal that aggravates seizures, rather than drinking itself … These alcohol withdrawal seizures may begin between 6 and 72 hours after you stop drinking. Studies suggest that alcohol withdrawal seizures most often occur 7 or 8 hours after heavy or prolonged drinking has stopped”. In his case, alcohol had nothing to do with the alleged incident because he had roughly the equivalent of a glass of wine in his system at the time he lost his memory. b. According to the National Institutes of Health, “kissing is a symptom of complex partial seizures, along with “grabbing people” and “holding tightly onto things” which explains why he repeatedly tried grabbing the unidentified female’s shoulder. In addition, the Epilepsy Foundation states, “During this period a person is easily frightened, upset and unable to communicate effectively and may become belligerent or aggressive, especially when approached, as he or she may perceive this as a threat.” c. According to the University of North Carolina School of Medicine, “Aggressive behavior … tends to be impulsive, unplanned, explosive with a rapid intensification of irritability and is frequently disproportionate to the trigger stimulus … the aggressive behavior may not appear instrumental, goal direct, or involve planning.” The Stanford Center for Epilepsy states, “Someone experiencing a complex partial seizure lives in a moment-to-moment world.” This fully explains why he instantaneously and permanently loses interest in the female. 9. He requested a sleep study to be performed in March 2011 because he developed so many strange medical issues that he thought were the result of his sleep problems. On 12 Aug 11, he was diagnosed with Sleep Apnea, but not notified until 26 Sep 11. Sleep Apnea is linked to diabetes; people with this condition are nine times more likely to have diabetes than those without having Sleep Apnea. He provides a timeline showing that he was suffering from increasingly severe blood glucose from July 2008 through 26 Dec 12. 10. After the Belgian police contacted the Air Force, an Air Force colonel provided the following statement: “This officer informed me he considered it possible there were other issues – environmental, medical, or a combination of the two – that may better explain the Lt Col B’s behavior. He speculated about a possible heat stress connection and questioned whether Lt Col B may have unknown/underlying medical conditions that contributed to his actions.” The only proof against him is witnesses’ statements that say he was or appeared drunk; however, they offer no elaboration as to what specifically caused them to think he was drunk. These witnesses only saw him for a few minutes whereas the police saw him for several hours. He has no memory of any of the events. According to his attorney and based on what alcohol he had consumed, his blood alcohol content would have been .02-.03, which was well below the limits of causing anything remotely resembling that type of behavior. 11. He continues to have unusual medical problems and has had several other incidents over the past 12 months with similar circumstances, most of which were prior to the alleged incident. The first incident, he had a tremendous headache followed by slurred speech and disorientation. The second incident, he suddenly turned bright red in the face and became disoriented and had difficulty speaking; his colleagues insisted that he go to the emergency room. Both incidents are documented in his medical file. In another incident, he was on the phone, had a tremendous headache, and had trouble speaking on the phone; however, he did not go to the hospital. Most recently, he had a seizure on-board an international flight where he suffered memory loss. 12. On 22 Apr 12, he submitted an IG complaint relating to this matter. On 17 May 12, the SAF/IG provided their response to his allegations stating, “… the 86 AW/CC’s decisions regarding your actions and his enforcement of the ARI Policy were neither arbitrary nor capricious, did not stifle your due process rights, and were vetted through the appropriate channels to ensure legal correctness of the actions.” Although he does not agree with the findings, he responds to the IG findings in a letter, see page 10 at Exhibit A. 13. He was unaware of the actions taken by the General Council of the Secretary of the Air Force (SAF/GC) behind the scene during the proceedings because he did not receive the promotion propriety action until after he filed his complaint with the IG. According to the promotion propriety action, the AF/JA and SAF/GC legal reviews should have been governed by the following note: “Records that are legally sufficient should normally be reviewed without comment”. SAF/GC had concerns about the validity of the charges, took unusual measures of asking for “additional information” from both 86 AW/CC and 3rd AF/CC, and made their recommendation after receiving the new evidence, which did not allow him to discredit their findings. The governing instruction states that he should have seen the new evidence in order to respond. In addition, the AF Form 4363, Record of Promotion Propriety, is biased because it does not have a block to check that the form is “not legally sufficient”; the form only has a block to check as “legally sufficient”. 14. The reason he did not submit an appeal to receiving the Article 15 because he and his attorney agreed that the lack of any discussion in person on the forthcoming promotion coupled with the highly unusual language of the Article 15 stating, “The stakes could not be any higher,” meant that his promotion was still on track. Additionally, his wife was having a difficult time with this matter, so he decided that it was best to accept the Article 15 to give their family closure. He believes if he had appealed the Article 15, he would be questioning the judgment of the 86 AW/CC and the 3rd AF/CC, making his appeal awkward as it appeared the 86 AW/CC was signaling that the promotion was still intact. He requested an extension; however, his request was denied. 15. The statements regarding his behavior of being drunk have no credibility as even emergency room personnel can misdiagnose this condition without clinical data. He has had numerous documented seizures where no alcohol was involved; therefore, there is no basis to suggest the seizure was induced by alcohol consumption and he has provided evidence that these seizures are triggered by alcohol withdrawal, not consumption. Further, he has been told by the subject matter experts opinion that he has not presented a compelling case to prove an error or injustice has likely occurred. He has reviewed thousands of Air Force Board for Corrections of Military Records (AFBCMR) cases from the reading room and does not recall any case in which the accused was in such a comprehensive manner able to address every point, every single detail, of the prosecution’s case so thoroughly. He would like to be fully cleared of these false charges. In support of his request, the applicant provides a copy of personal statements, a memorandum for record, a statement from his spouse, email communications, several different Articles, Medical Reports, the 96 AW/CC Calendar, SAF/IG Response, AF Form 4363, a memorandum from the 86 AW/CC and 3 AF/CC, a redacted Memorandum for Record, Provost Marshal Report, Stars and Stripes Article, Kennesaw Hospital Report, and his IG Complaint. His complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: The applicant retired from the Regular Air Force in the grade of lieutenant colonel. On 4 Nov 11, the applicant’s commander rendered him an Article 15 for being in: Violation of Article 95, UCMJ: On or about 10 Sep 11, he resisted being apprehended by a senior non-commissioned officer (SNCO) an armed forces police officer. Violation of Article 128, UCMJ: On or about 10 Sep 11, he unlawfully grabbed a technical sergeant on the throat with his hands and assaulted a corporal, who had military law enforcement duties, by biting him on the hand with his teeth and kicked him in the chest. Violation of Article 134, UCMJ: On or about 10 Sep 11, he wrongfully communicated a threat to a non-commissioned officer, to wit, “I will fucking kill you” or words to that effect, which conduct was prejudicial to good order and discipline in the armed forces. He was drunk and disorderly, which conduct was of a nature that would bring discredit upon the armed forces. The applicant accepted the Article 15 and waived his right to demand trial by court-martial. On 1 Nov 11, the applicant responded to the non-judicial punishment. On 4 Nov 11, the 86 AW/CC decided that he had committed the offenses and imposed punishment consisting of a forfeiture of $4,035.00 pay per month for 2 months and was reprimanded. . AF Form 4363, Record of Promotion Propriety Action, reflects the applicant’s name was removed from the colonel’s promotion list on 4 Jan 12. He consulted with a lawyer and submitted a written statement on his behalf. The promotion propriety action was deemed legally sufficient by the 3rd AF/JA and on 23 Jan 12, the 3rd AF/CC recommended his name be removed from the promotion list. The AF/JA and SAF/GC separately reviewed the record and found it legally sufficient. On 12 Apr 12, the Secretary of the Air Force (SECAF) approved the removal of the applicant’s name from the promotion list. The applicant filed a complaint with SAF/IGS; however, on 17 May 12, they determined that the 86 AW/CC’s decisions regarding his actions and his enforcement of the Alcohol Related Incident (ARI) Policy were neither arbitrary nor capricious, did not stifle his due process rights, and were vetted through the appropriate channels to ensure legal correctness of the actions. SAF/IGS determined there was no credible evidence of misconduct on the part of any individual, to include the 86 AW/CC, and dismissed his complaint without further action. The applicant did not file an appeal through the Evaluations Reports Appeals Board (ERAB) to have the contested evaluation reports removed from his records. The applicant retired from the Regular Air Force on 1 Jun 14 in the grade of lieutenant colonel after serving 23 years, 5 months, and 18 days on active duty. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which is at Exhibit C, D, E, F, G, and H. ________________________________________________________________ _ AIR FORCE EVALUATION: 1. AFLOA/JAJM recommends the Board not take action with regard to the military justice matter in this case and defers to the appropriate agencies regarding the applicant’s military record. 2. The applicant alleges injustice both during the investigation of his misconduct and the processing of his Article 15. He alleges the information provided by the Belgian police and his time in jail was not considered; however, in reading the memorandum for record from a colonel who spoke with the Belgian authorities, all the Belgian authorities really stated was that it might be possible that there were other issues to include environment, mental or a combination of the two. The applicant alleges the governing instructions were not followed as a sobriety test, Breathalyzer test or blood alcohol test were not administered. Because of his actions, to include assaulting two individuals and resisting arrest, the ambulance refused to transport the applicant and any test at the time was likely impossible. In addition, there was sufficient evidence (witness statements) that made it reasonable to conclude that he was drunk and acting under the influence of alcohol. 3. Also not considered or at the very least not given the weight it should have been given, as alleged by the applicant, was the statement from the medical provider that the applicant’s misconduct was a result of a type of seizure that mimics drunken behavior. In fact, when you read the medical provider’s statement, it was his opinion that the “combination two different antihistamines used, dehydration, and alcohol led to the event that occurred.” All of which were in his control, as he knew he was taking antihistamines, knew it was hot and could cause dehydration, and he chose to drink alcohol. Lastly, the applicant alleges bias and an unauthorized personal stance on perceived alcohol related incidents by his commander who issued the Article 15. However, there is no evidence that the applicant’s commander was biased. Commanders are recommended to send an individual to visit Alcohol and Drug Abuse Prevention & Treatment (ADAPT) whenever there is an alcohol related incident. This is not particular to his commander, and it is the responsible action to take to prevent further alcohol related incidents. As the applicant admits he did consume alcohol the day of the incident, thus being sent to ADAPT is a reasonable action by his commander. 4. The applicant also alleges the governing instructions regarding timeliness and standard of proof were not followed. The statute of limitation for non-judicial punishment to be issued for certain misconduct is two years; that timeline has been met. There is a metric to aim for, which is to complete all non-judicial punishments actions within 30 days with the commanders offering non-judicial punishment within 10 days of the date of discovery of the offense, but this metric is not always met. In this case, the non-judicial punishment was offered on 27 Oct 11, 55 days after discovery of the offense. Though this case did not meet the metric, it was well within the statute of limitations of two years. 5. By accepting the non-judicial punishment, the burden of proof standard for proving a person is guilty of an offense is much lower than the court-martial standard of proof beyond a reasonable doubt. A commander must feel there is enough evidence to prove more likely than not the applicant committed the offenses he/she was charged with. In this case, the commander looked at all the evidence, to include submissions from the applicant, and found he was guilty of the offenses he was charged with. The commander exercised the discretion that the applicant granted him when the applicant accepted the Article 15 and found non-judicial punishment appropriate in this case. Further, the legal review process showed that the commander did not act arbitrarily or capriciously in making his decision. 6. In addition, during the processing of the applicant’s promotion propriety action, the non-judicial punishment was scrutinized under three separate legal reviews culminating in the SAF/GC review; see Attachment 17 of the applicant’s BCMR request. All legal reviews found the non-judicial punishment legally sufficient. Further, in the SAF/GC legal review, it was noted that the applicant provided “a plausible explanation for his behavior,” but ultimately was “satisfied that the member’s evidence was given appropriate consideration” and determined the Article 15 was appropriate. Finally, the applicant does not make a compelling argument that the Board should overturn the commander’s original non-judicial punishment decision based on injustice. The complete JAJM evaluation is at Exhibit C. 1. AFPC/DPSID recommends denying the applicant’s request to void his contested reports. In this regard, the applicant has not provided compelling evidence to show that the reports were unjust or inaccurate. The applicant contends that his OPR with a closeout date of 7 Apr 11, and two subsequent referral OPRs, should be removed from his records because it mentions that he received an Article 15. This is an action the applicant considers unjust and is appealing to have the report removed. He is also appealing to have the second referral OPR removed due to failing a fitness assessment. 2. The applicant received a referral OPR that closed out on 7 Jan 12 after receiving an Article 15 for being drunk and disorderly after finding him guilty of one specification of resisting arrest/apprehension, two specifications of assault consummated by battery, and one specification of communicating a threat. The applicant believes that the Article 15 action was administered to him although he alleges and proposes medical theories as to the real underlying factor that caused the misconduct. However, there is no concrete evidence or proof that suggests the evaluators were bias or impartial when the applicant received his rating. There is no indication in this case that clearly demonstrates an error or an injustice, which caused the applicant to detract from the acceptable/minimum Air Force standard. The applicant received an Article 15 for the substantiated misconduct and his rating chain appropriately chose to comment and document on the underlying wrongdoing, which caused the report to be referred to the applicant for comments and consideration to the next evaluator. A final review of the contested OPR 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 current Officer and Enlisted Evaluation System in place. Therefore, based on the presumed sufficiency of the Article 15, they conclude that its mention on the contested OPR was proper and in accordance with any applicant Air Force policies and procedures. 3. Additionally, after a careful review and consideration of the applicant’s request, it appears that the applicant is simply requesting that his 7 Apr 11 report be voided based on our presumed belief that the OPR lacked a stratification remark from the additional rater. They can only presume this may be his motive as the report is not a referral report nor does it contain any derogatory comments because the applicant does not state a reason for removing this report. Therefore, they contend that the OPR is accurate and valid as originally written. The supporting documentation provided, or lack thereof, does not present any clear or concrete evidence of an error or injustice in the preparation or execution of the report in question. 4. Regarding the applicant’s most recent referral OPR with a close out date of 7 Jan 13, the applicant does not state any valid reason or justification for removing this report from his records. However, in reviewing the applicant’s Air Force Fitness Management Assessment (AFFMS) record, they found this report became a referral report based on his failed fitness assessment which was conducted on 19 Oct 12. He received a composite score of “0” based on his 41.5-inch waist measurement. They do not understand why the applicant requested this report to be removed as he centers/focuses his contentions on the Article 15 he received during the previous reporting period and subsequent referral OPR for the alcohol related incident. Furthermore, after a review of the applicant’s fitness history, it is apparent he was struggling with maintaining a waist circumference of 39 inches during the last two years. Although it appears the applicant performed satisfactorily in his accomplishments during the reporting period, the failed fitness assessment as of the closeout date caused the OPR to be a referral. 5. The applicant contends that his PRF rendered for the P0612B Central Selection Board was submitted unjustly based on the fact that it was linked to the Article 15 he received; however, the applicant provided no real explanation or justification for removing the contested PRF. The applicant may not realize that the senior rater is the sole proprietor of the subject PRF and ultimately bears the responsibility of selecting what to include in the PRF, what to leave out, which portions of the officer’s career to concentrate on, and which portions to have supported by the record. Moreover, he has provided insufficient evidence or proof to warrant removal of the existing P0612B PRF. They believe the applicant was fairly competed and recommended by the subject Management Level Review (MLR) with a “DNP” recommendation; therefore, they reject the applicant’s assertion that he merits removal of the contested PRF. The complete DPSID evaluation is at Exhibit C. AFPC/DPSOO recommends denying the applicant’s request to be promoted to the grade of colonel. The applicant contends there was a procedural problem in the processing of the propriety action in that any additional information provided because of a legal review should have been provided to him so that he could have committed on the new information; he could have discredited the findings. a. It should be noted that a promotion is not a reward for past service; however, it is 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 requirements for exemplary conduct set forth in 10 U.S.C. 88583 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. b. In this case, on 28 Dec 11, the 86 AW/CC initiated action to remove the applicant’s name from the CY10C Colonel Line promotion list for the reasons stated in the Statement of Facts of this Record of Proceedings. On 23 Jan 12, the 3rd AF/CC concurred with the recommendation to remove the applicant’s name from the promotion list. Additionally, at the request of SAF/GC, both 86 AW/CC and 3rd AF/CC provided a memorandum that gave their rationale for the decision to remove the applicant’s name from the promotion list. Based on the rationale provided, SAF/GC was satisfied that the applicant’s evidence was given appropriate consideration and that under the rationale of either commander, both the Article 15 and removal action were appropriate. Thereafter, the SECAF approved the removal from the promotion list. c. According to the governing instructions, an officer will be given the opportunity to comment on all derogatory information added after the officer first reviews and acknowledges the initial recommendation. Since the content of the memorandums from the 86/CC and 3rd AF/CC contained only the commanders’ justification for their recommendations and deliberative processes and did not contain any new derogatory information it was not required to be referred to the applicant. In addition, Air Force policy also states that formal rules of evidence do not apply to a promotion propriety action. Finally, all actions were reviewed by Air Force legal offices and were found to be legally sufficient to warrant the action taken. The complete DPSOO evaluation is at Exhibit E. 1. AFPC/DPSOR does not provide a recommendation. They were asked to address the issue of an associated active duty service commitment (ADSC) if rank is restored, and if that commitment can be waived. With regard to the ADSC, officers do not incur an ADSC when promoted; however, in order to retire in the grade of lieutenant colonel or above, 10 U.S.C Section 1370 requires the officer to serve a minimum of three years in that grade. However, some waivers of time-in-grade are authorized. 10 U.S.C. states “In order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than three years, except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period of not less than two years.” 2. The SECAF is currently exercising this waiver authority through the FY14 Force Management Program. Officers in the grade of colonel, serving in certain competitive categories, may apply to have their time-in-grade waived to two years. 3. At the time of this advisory opinion, the applicant had a retirement pending effective 1 Feb 14. Since this time, the applicant has retired in the grade of lieutenant colonel. However, if the Board restored his promotion to the grade of colonel, his date of rank would be 1 Feb 12, which would provide sufficient time-in-grade to support a waiver under the FY14 Force Management Program. There was also an Officer Grade Determination (OGD) pending to determine if he would be retired in the grade of lieutenant colonel, which he did. The complete DPSOR evaluation is at Exhibit F. 1. AFPC/JA recommends denying the applicant’s entire application stating that throughout the processing of the applicant’s case, he has maintained that the misconduct that occurred on 11 [sic] Sep 11 was the result of various medical problems as opposed to the overindulgence of alcohol. 2. In support of those claims, he has offers numerous articles and medical journals describing the effects of diabetes, hypoglycemia, pre-diabetes, seizure disorders, and even epilepsy, suggesting all or a combination thereof were responsible for his misbehavior. In fact, different medical theories have been offered at different points in the proceedings. However, as determined by his commanders, these medical maladies have constituted nothing more than speculation, as no medical opinion offered by the applicant in his submissions diagnosed him with any of those diseases on the date of the incident, nor did they conclude that a medical condition was responsible for his behavior on that date. The medical records documenting his visits to the military medical facilities on 4 Mar 11 and 9 Aug 11 (both visits before the date of the misbehavior) and on 26 Sep 11 (after the misconduct), contained the entry “Diabetes: Not Applicable” or “No indication.” In addition, the applicant’s medical appointment on 31 Oct 11, discussed alcohol use, he had gone from two drinks per week, to five drinks per week, and then to 10 drinks per week. 2. The applicant relies on his latest medical malady defense (diabetes or epilepsy) based on a visit to the Landstuhl RMC in Germany, on 22 Apr 13, which was one year and a half after the incident. The brain scan and other tests administered to the applicant on that date were described in the record of “unremarkable examinations.” Contrary to the inference given by the applicant, his examining doctor did not diagnose him as having a medically caused seizure on 11 [sic] Sep 11, rather he stated, “From the description provided (emphasis added, as the description was provided by applicant), it is possible that a complex seizure could explain the event a year ago, but they have found no evidence of abnormal EEG or brain MRI.” The applicant was released without limitations and with a discussion of the possible side effects of his medications. His 29 May 13 self-diagnosis stating that he suffered a “textbook complex partial seizure” is nothing more than pure speculation and conjecture. 3. The applicant reiterates his belief that he was denied a fair assessment in his Article 15 punishment and other adverse actions taken (removal from 0-6 promotion list, referral OPR, “do not promote” PRF) because of his commander’s inelastic attitude and policies regarding alcohol related incidents. Specifically, he complains that he is the victim of “abuse of authority and negligence of epic proportions, caused primarily by an illegal policy.” These allegations were fully investigated by SAF/IG, who concluded there was no misconduct on the part of any individual in the applicant’s chain of command. 4. The applicant also alleges that SAF/GC acted improperly in its review of his promotion removal action, when they requested further explanation of the commanders’ reasons for taking the actions they did. What SAF/GC received in return was an explanation of the actions taken based on existing evidence of record – not new evidence that required the applicant be given an additional opportunity to respond; therefore, there was no error committed. 5. Finally, JA opines that the misconduct that formed the basis of the adverse actions in this case was the result of behavior that was within the applicant’s control and not due to any medical diseases or a command structure that was unfair, biased or unlawful in its actions. The complete JA evaluation is at Exhibit G. 1. The BCMR Medical Consultant recommends denying the applicant’s request to remove his Article 15 from his record and to restore his name on the colonel’s promotion list. In this respect, the Medical Consultant has reviewed the several opinions presented across the spectrum of the legal community, and the lone memoranda from a medical provider, dated 31 Oct 11, and a neurologist on 22 Apr 13. The former who has opined that the “combination of two different antihistamines used, [his presumed state of] dehydration, and alcohol led to the event that occurred” and the latter attributing the applicant’s behavior to a possible seizure disorder. 2. The Medical Consultant concedes that there are several potential causes of altered human behavior, to include psychiatric illness [acute psychosis, certain personality disorders], metabolic defects [diabetes, thyrotoxicosis, anticholinergic toxicity, heat stroke, hypoxia, nitrogen narcosis] or toxicological [illicit drug-related, e.g. PCP, certain botanicals, alcohol withdrawal]. What has not been presented is the recognized statistical association with alcohol intoxication alone with aggressive or combative behavior, by inhibiting an individual’s ability to correctly perceive the negative consequences of one’s aggression; even without the co- morbid effects of excessive heat, dehydration, certain medications, diabetes, a sleep disturbance, or seizure disorder. Among offenses, according to the Bureau of Justice Statistics on Alcohol and Crime, from 2002 to 2008, simple assault and intimidation were the most common. That is to say, even in the absence of a core body temperature exceeding 104 degrees Fahrenheit necessary for heat stroke, diabetic shock, epilepsy, or a history of sleep apnea and sleep deprivation, an individual could very well have responded in words and physical acts, as described in the witness statements of record, when under the influence of alcohol. 2. Unfortunately, the Medical Consultant does not have objective clinical data specifically on the applicant on the date of the event, upon which to determine whether he suffered from the acute effects of either of the proposed medical conditions. Nevertheless, the applicant recovered overnight and was released on his own recognizance, without the need for urgent medical intervention, e.g., intravenous hydration, rapid cooling, anti- seizure medication, supplemental oxygen, or intravenous or oral glucose solution, which would be appropriate intervention for one or more of the clinical entities proposed in this case. It is unfortunate that ambulance personnel did not transport the applicant to a medical facility to receive a proper evaluation, as the Consultant has also witnessed a ruptured cerebral aneurysm masquerading as aberrant behavior. 3. Consequently, while these are all potential causes of aberrant or “out of character” behavior, a common feature in this case is the consumption of alcoholic drinks prior to the onset of the witnessed pattern of behavior; and more acutely, after consuming the “national drink” Aquavit. The Medical Consultant opines the evidence does not sufficiently meet the burden of proof of error or injustice to warrant the desired change of the record. The complete Medical Consultant evaluation is at Exhibit H. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In a 10-page brief, the applicant reiterates his original contentions and makes the following key rebuttal arguments with regard to the advisory opinions: a. In response to the BCMR Medical Consultant’s advisory opinion, he believes the Medical Consultant gave him fair consideration. However, he would like to point out some issues with the opinion: (1) He does not believe the Medical Consultant reviewed his May 2013 Addendum as it is not referenced in his comments. It is now clear that he experienced a complex partial seizure on the day in question. He formally withdraws his theories about a diabetic seizure or any other cause because he believes it was epileptic or perhaps psychogenic as the extremely quirky symptoms of a complex partial seizure can fully explain his delusional behavior. He provides detailed information that clearly indicates the alleged incident was caused by him suffering from a complex partial seizure. (2) A military neurologist stated, based on the evidence, a complex partial seizure was the likely cause of the alleged event based on his history of seizures and medical problems as evidenced by his statement “it is a reasonable conclusion as this time”. He would like to make sure the Medical Consultant realizes the neurologist was specifically talking about the alleged event that occurred on 10 Sep 11 and not some other seizure. (3) The Medical Consultant quotes the 86 AW/CC memorandum to SAF/GCM that discusses the commander found him guilty after “careful consideration” and his [applicant] theories were “too remote”. Nevertheless, he has submitted clear and concise evidence through the documents found in a Freedom of Information Act (FOIA) that the commander’s characterization of “careful consideration” constitutes 15 minutes or less of actual consideration. He submits that 15 minutes of consideration is spectacularly preposterous, especially given what the Medical Consultant graciously states as an individual having “an encyclopedia of accolades”. (4) The Medical Consultant states “Nevertheless, the applicant appears to have recovered overnight … without the need for … anti-seizure medicine”. By his count, he has suffered from no less than seven seizures to date, several before the alleged incident, which at the time were not known to be seizures. However, after experiencing a seizure he generally felt confused and had a headache; otherwise it is difficult to tell a seizure took place. His research indicates that the only requirement for medical attention occurs during status epileptics, which he has never experienced. According to the Epilepsy Foundation, “Although not an actual type of seizure, status epileptics is said to exist after 30 minutes of continuous seizure activity. It is a true medical emergency requirement immediate treatment or rapid transport to a hospital.” (5) With regard to lack of findings of epilepsy, through his research he found that this is very common. Sources indicate that up to 70 percent of epilepsy cases are never evidenced during an electroencephalogram (EEG). As noted by his neurologist’s diagnosis of “transient alteration of awareness”, his seizures are transient. Another very plausible explanation is that his seizures are not epileptic but instead psychogenic, which would never show up in an EER or Magnetic Resonance Imaging (MRI). (6) The Medical Consultant states, “Unfortunately, the Medical Consultant does not have objective clinical data on the applicant specifically on the date of the event …”; he wishes he had clinical data as well and points out that this is through no fault of his own that he does not. The governing instructions reflect that in a situation like his, there is a need to perform drug and alcohol tests; however, the instructions were not followed. b. In response to the AFLOA/JAJM advisory opinion, he submits the following: (1) They state the “Applicant was afforded the opportunity to consult with defense council …” however, he was assigned a defense council who was located on a different continent and in a different time zone. He submits this resulted in a lack of due process and significantly hindered his defense. (2) They state the accused believed his blood alcohol content was below the legal limit; however, this is inaccurate. His attorney conducted the analysis and provided him the blood alcohol content figures. In addition, had the governing instructions been followed, he would not be in the position of his attorney trying to estimate his blood alcohol content as it would have been taken on the spot. (3) They do not discuss the rationale of him not appealing the Article 15. This is an important point because the lack of an appeal was caused by a series of events that no instructions could anticipate, which resulted in lack of due process. (4) They talk about the semantics of the word “possible” from the Belgian Federal Police; however, he was face to face with the inspector who thought it was heat related or some other cause as he recovered so quickly and was acting so strangely. Further, the word “possible” is used in a different connotation in the French speaking part of Belgium. It does not mean “conceivable”. The terms “impossible” and “possible” are used far more frequently than in the American vernacular and are not used to express either end of the spectrum. The Belgian Federal Police officer was not allowed to render a medical opinion. However, the officer told him that he did anyway; however, it was in a somewhat vague style presumably to protect him from police criticism. Why would this officer bother to contact anyone if not to relay his serious doubts about the case? The semantics of the “possible” would not be in question had someone taken five minutes out of their day to call the officer and investigate his claims. (5) The JAJM advisory opinion is 180 degrees out of sync with the Commander’s Handbook, the governing instructions, and the Manual for Courts-Martial (MCM) as they do not state or suggest “the burden of proof standard for proving a person guilty is much lower than the court-martial standard …” and “… a commander must feel there is enough evidence to prove more likely than not the applicant committed the offenses”. They also note, “There is no evidence the applicant’s commander was biased …” He submits volumes of data on the commander’s bias and would like the Board to review his IG complaint, his appeal, his addendum to the appeal, and answers to other questions in his rebuttal. In addition, he did not raise any questions with regard to ADAPT program; however, he notes that the 86 AW/CC did not refer him to ADAPT. (7) They state, “The legal review process showed that the commander did not act arbitrarily or capriciously in his decision”. However, legal reviewers have no insight regarding any temporal dimension of any case they review. Therefore, they are not informed nor qualified to render a legal opinion on the capricious actions of a commander with respect to bias, prejudice, or the appropriate time that should have passed before the commander makes a decision. In addition, the legal reviewers would have no way of knowing that the 86 AW/CC and the 86 AW/JA decided to schedule 4 Nov 11 for both his oral hearing and the verdict on his case before he had submitted any written matters relating to his defense. This is improper, capricious in that it does not follow the law or proper procedure, and has resulted in violations of protections offered him by the United States Constitution. SAF/GCM did introduce the temporal element by requesting information regarding “appropriate consideration”, and the 86 AW/CC responded in a less than truthful manner, which overlaps with his arguments regarding the AFPC/DPSOO advisory opinion that narrowly interprets AFI 36-2501, Officer Promotions, regarding the introduction of new evidence without the accused being able to respond. The legal reviewer is now reviewing a new aspect to the case, which was not already included in the documentation that the legal reviewer prior to him reviewed. In addition, the SECAF did not this information as evidenced by it not being included on the promotion propriety form and it was not given to him when the entire package was finalized, all of which results in a serious lack of due process. (8) The legal reviews were incestuous. In this regard, the 3rd AF/JA rendered a “legal review” on his promotion propriety action; however, since his promotion propriety action was solely based on a single event, an event which 3rd AF/JA had already legally reviewed, he was not afforded a fresh set of eyes to conduct the initial legal review. The same individual that legally reviewed his Article 15 also signed off as having legally reviewed his promotion propriety action. (9) The legal reviews of his Article 15 are also fishy, somehow he ended up with two different “page 2” from AF Form 3070C’s, Record of Non-Judicial Punishment Proceedings. One of the pages has 3rd AF/JA signing off on 21 Nov 11; however, blocks 11, 12, and 13 had not been filled in. The other “page 2” has blocks 11, 12, and 13 with no signature in block 14. How is this possible? How did the 3rd AF/JA reviewer sign the document without seeing blocks 11, 12, and 13 signed off? Block 12 is the servicing Staff Judge Advocate (SJA) legal review. The GCMCA SJA administrative supervisory review should not have taken place without evidence of a servicing SJA legal review. Neither the 3rd AF/CC nor any legal reviewers saw his oral statements for the Article 15 hearing, which played a role in both the propriety action and the Article 15. The oral statements were exceptionally important as the 86 AW/CC denied his request for an extension; he believes that due to negligence, his written response was hastily thrown together thereby needing significant oral explanation. (10) SAF/GCM had doubts about the Article 15 itself and incidental to that, the resulting promotion propriety action. The JA community is quick to point out that disciplinary and propriety actions are separate. However, SAF/GCM clearly linked the two actions together as the promotion propriety action was only appropriate if further information from the 86 AW/CC and 3rd AF/CC was able to show the Article 15 was appropriate. In essence, in this situation, or for that matter any situation where a promotion propriety action takes place based on a single questionable disciplinary action, there is essentially no other recourse than to find the action “legally sufficient” as otherwise it would open up an unprecedented situation governed by no Air Force Instruction. (11) The SECAF decided on his case without reviewing all documented facts that were available to the reviewers because AF Form 4364, Record of Promotion Delay Early Termination and – or Date of Rank Adjustment, did not include the official correspondence to SAF/GCM from both the 86 AW/CC and the 3rd AF/CC. Further, AFBCMR Docket Number BC-2012-05168 (see Exhibit B), the JA community points out the SECAF reviewed an additional memorandum added and attached the file because of SAF/GCM inquiries; however, he was not afforded that opportunity, which constitutes major lack of due process. Additionally, the SAF/GCM memorandum was not listed as an attachment to the promotion propriety for either. The SECAF may have made a decision on the matter without seeing this memorandum as well. c. In response to the AFPC/DPSID advisory opinion, he submits the following: (1) They offer no opinion on his guilt or innocence to the charges in question nor will they, as they are not the subject matter expert in that regard. If his appeal is successful, the OPRs that have been written as a “lieutenant colonel” will need to be voided because his rank would have been “colonel”. (2) With regard to his fitness assessments, he is unclear as to how he was struggling with any aspect of the fitness test prior to the alleged incident as evidenced by 21 straight years without a single failure. d. In response to the AFPC/DPSOR advisory opinion, he submits the following: With regard to “The applicant’s case is currently in coordination at the MAJCOM”, he underwent an OGD process whereby he would be retired either as a lieutenant colonel or as major. The Air Force negligently took 9 months to render a decision. To complicate matters, he was given a second assignment to Scott AFB despite him turning down the first assignment. This put him in an ambiguous situation of not knowing which action took precedence. Even worse, the Lieutenant Colonel Selective Early Retirement Board (SERB) came into play. The cutoff to voluntarily retire under the SERB was 15 Nov 13; however, after receiving a “do not retain” Retention Recommendation Form (RRF) he found out that he was not eligible for the SERB. The OGD was signed on 12 Nov 13 and presented to him on 15 Nov 13, notifying him that he would be retired in the grade of lieutenant colonel. e. In response to the AFPC/DPSOO advisory opinion, he submits the following: (1) He disagrees with the findings of AFBCMR Docket Number BC-2012-05168 with regard to the interpretation of the governing instructions. There is no question that had he seen these memoranda and been able to respond he could have most likely stopped this injustice. They state, “SAF/GC was satisfied that the applicant’s evidence was given appropriate consideration and that under the rationale of either commander, both the Article 15 and the removal action were appropriate” and ‘Since the content of the memorandums for the 86 AW/CC and 3 AF/CC contained only the commanders’ justification for their recommendations and deliberative process and did not contain any new derogatory information it was not required to be referred to the applicant”. He vehemently disagrees with this finding. There was not a single reference in the documentation associated with this case regarding what constituted either commander’s deliberative process. One of his major complaints associated with this case is the lack of a deliberative process thereby denying him due process. (2) He is stuck in a catch-22 situation for complaining about a lack of due process with regard to the non- deliberative handling of the case. Both AFLOA/JAJM and DPSOO may well be entrenched in their positions that he had no right to question the memoranda to SAF/GCM and cannot question whether this was arbitrary or capricious as it was approved through legal reviews. SAF/GCM only recommended his removal after he concluded “… the applicant’s evidence was given appropriate consideration …” It is easily apparent that my case was given nothing resembling “careful consideration.” His complete submission, with attachments, is at Exhibit J. ________________________________________________________________ _ 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 error or injustice warranting corrective action. The applicant's contentions regarding due process are duly noted. However, after thoroughly reviewing the evidence of record, to include the detailed legal and medical opinions, we are not persuaded that he has been the victim of an error or injustice. Evidence has not been presented which would lead us to believe that there were procedural errors resulting in an injustice or improprieties in the processing of his promotion propriety action or that he was denied rights to which he was entitled. Therefore, we adopt the opinions and recommendations of the Air Force offices of primary responsibility and the BCMR Medical Advisor as the basis for our determination that he has not been the victim of an error or injustice. In the absence of persuasive evidence to the contrary, we find no compelling basis upon which to recommend granting the relief sought in this application. Additionally, we took note of the applicant’s request for a financial settlement or, as an alternative, a waiver of Sovereign Immunity and various other protections that are offered by the Feres Doctrine. However, the Board is not able to consider these requests as they are outside the Board’s purview. ________________________________________________________________ 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-2013-00688 in Executive Session on 13 May 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 29 Jan 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 28 Mar 13. Exhibit D. Letter, AFPC/DPSID, dated 13 May 13. Exhibit E. Letter, AFPC/DPSOO, dated 27 Jun 13. Exhibit F. Letter, AFPC/DPSOR, dated 13 Aug 13. Exhibit G. Letter, AFPC/JA, dated 27 Aug 13. Exhibit H. Letter, BCMR Medical Consultant, dated 14 Nov 13. Exhibit I. Letter, SAF/MRBR, dated 15 Nov 13. Exhibit J. Letter, Applicant, dated 21 Jan 14, w/atchs. 1 2