RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03054 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. The vacation action dated 16 November 2009, resulting in a demotion from E-6 to E-5 be set aside, and the difference in pay from July 2009 to present be restored. 2. He be reimbursed $2819.56 due to his reduction in grade from E-6 to E-5 (July through November). ________________________________________________________________ APPLICANT CONTENDS THAT: On 20 July 2009, he was served an Article 15 as a result of multiple instances of being late for work. His punishment was forfeiture of one half month of pay and a suspended demotion for 6 months. In the aftermath of the Article 15, he requested a referral to the sleep clinic. He was diagnosed with Moderate Obstructive Sleep Apnea. He believes this diagnosis could have been a mitigating factor had he known of this medical condition prior to, or during the Article 15 process - mitigating enough to have prevented his demotion. There are numerous side effects of this condition to include hypertension, difficulty waking up and excessive daytime sleepiness. He was also diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) in March 2007. He was prescribed medication to assist with managing the disorder and began seeing a psychiatrist in May 2010. This is significant as sleep apnea can further aggravate ADHD. The combinations of these two conditions have significantly impaired his ability to function at his fullest potential. He believes his case deserves a second review because this information was not available at the time of the Article 15. He was recently notified that he will undergo a Medical Evaluation Board (MEB) and cannot be promoted. He respectfully requests the vacation action from November 2009 be eliminated and his rank to E-6 be restored. In support of his appeal, the applicant provides AF Form 3070, Record of Nonjudicial Punishment, AF Form 366, Record of Proceedings of Vacation of Suspended Nonjudicial Punishment, e- mail correspondence, debt letter and other supporting documentation. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is a staff sergeant in the active Air National Guard. On 13 July 2009, he was notified of his commander’s intent to impose nonjudicial punishment under Article 15 for violation of Article 86, of the Uniform Code of Military Justice (UCMJ). Specifically, the applicant was accused of failing to go to the appointed place of duty, at the prescribed time without authority on three occasions. On 16 July 2009, the applicant noted on the AF Form 3070 that he consulted counsel, waived his right to trial by court-martial and submitted matters on his behalf. The applicant did not request a personal appearance before the commander. On 20 July 2009, the commander found that he committed one or more of the offenses as alleged and imposed punishment of a suspended reduction to the grade of staff sergeant, forfeiture of $1475.00 pay per month for one month and a reprimand. The applicant did not appeal the punishment. On 16 November 2009, the applicant’s commander notified him that he was considering vacating the suspended punishment. On 20 November 2009, the applicant waived his right to counsel, provided a written presentation and requested a personal appearance before the commander. On 24 November 2009, the commander found the applicant had violated Article 86, UCMJ, on 1 October 2009 by failing to go to his appointed place of duty at the prescribed time (without authority) and vacated the suspension in rank. His new date of rank to staff sergeant was 20 July 2009. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. Between on or about 23 June and 26 June 2009, the applicant was alleged to have failed to go to his appointed place of duty on three occasions, in violation of Article 86, UCMJ. On 16 July 2009, the applicant waived his right to court-martial and accepted non-judicial punishment proceedings. He attached a written presentation, but did not make a personal statement before the commander. After considering the evidence in the case and matters submitted by the applicant, the commander concluded the applicant committed the offense and imposed punishment consisting of suspended reduction in rank from technical sergeant to staff sergeant, forfeiture of $1475.00 per month for one month and a reprimand. The applicant did not appeal the decision. On or about 1 October 2009, the applicant was alleged to have again violated Article 86, UCMJ, by failing to go to his appointed place of duty. As a result, on 16 November 2009, his commander notified the applicant that he was considering vacating the suspended punishment. On 20 November 2009, the applicant waived his right to counsel, provided a written presentation and requested a personal appearance before the commander. After considering the evidence in this case, the commander concluded the applicant committed the offense and vacated the suspension in rank. Ordinarily, applicants must file an application within three years after the error or injustice was discovered, or with due diligence, should have been discovered. The Article 15 and vacation action occurred in 2009. The sleep study and diagnosis took place in the spring of 2010; therefore, the application is untimely. Nonjudicial punishment is authorized by Article 15 of the UCMJ and governed by the Manual for Courts-Martial (MCM) and AFI 51- 202, Nonjudicial Punishment. This procedure allows commanders to dispose of certain offenses without trial by court-martial unless the service member objects. A commander considering a case for disposition under Article 15 exercises personal discretion in evaluating the case, both, as to whether non- judicial punishment is appropriate, and if so, as to the nature and amount of punishment. Vacation of a previously suspended demotion is likewise permitted by Article 15, UCMJ and governed by the MCM. This procedure permits commanders to vacate a punishment that was previously suspended under nonjudicial punishment proceedings if the member violates any conditions of the suspension or commits an offense chargeable under the UCMJ. The member has the right to be notified of the process, to review the evidence, consult an attorney and to submit matters in extenuation. In this case, the applicant admits the underlying conduct, but seeks relief based on alleged medical issues. Even assuming all of the information provided by the applicant is accurate, there is not sufficient evidence to demonstrate these issues rose to the level of being a disability that would relieve the applicant of his duty adhere to a basic military obligation of showing up for work on time. If such a condition exists, the Medical Evaluation Board is the organization best suited to determine the type of disability it represents and whether such a disability makes the applicant unsuited to continue with military service. The evidence is sufficient for the commander to have found the applicant committed the offenses. The commander was in the best position to evaluate all of the evidence before making a decision and the Board should not overturn that decision lightly. The complete AFLOA/JAJM evaluation is at Exhibit C. NGB/SGPA recommends denial. On 20 July 2009, the applicant received an Article 15 after multiple instances of being late for work. The applicant had received numerous counseling statements beginning 2006 from various supervisors regarding being late to work before receiving the Article 15. He acknowledged he was working a part time job in the evening for several years. While there is no proof that the part time job in the evening had any effect on the applicant’s tardiness, it is important to note. As a part of the Article 15, the applicant agreed not to be late for work anymore. He was again late on 1 October 2009 and was unable to be reached by his supervisor. He received notification of 24 November 209 that he was demoted from E-6 to E-5 due to his continued tardiness. The applicant was diagnosed with Moderate Obstructive Sleep Apnea in April 2010. He states his newly diagnosed condition is the cause of his tardiness. He also states he was diagnosed with ADHD in 2007, which has exasperated from his Obstructive Sleep Apnea. Had he known about his condition, he could have received treatment. Obstructive Sleep Apnea can cause symptoms that include daytime sleepiness and difficulty waking up. The condition itself does not preclude the member from performing his duty or arriving on time. The applicant underwent a Medical Evaluation Board to determine his fitness for duty and was found unfit by the IPEB on 13 December 2013. The complete NGB/SGPA evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant responded to the Air Force advisory stating his intent in submitting this request was not to imply that he was not late in those instances, rather to ask the Boards consideration based on the issue of fairness. After being diagnosed with sleep apnea, he was approached by several people asking if he would submit this request. In addition, during leadership training, this exact scenario was discussed. While most of his classmates felt a person being late should be written up, his instructor stated that the first step is to rule out any medical conditions. He has had a lifelong struggle with sleep and timeliness. He did not make the connection that there may be a chance he had a sleep disorder. He does not fit the normal stereotype of someone that would exhibit the symptoms: overweight, large neck etc. He also asks the Boards consideration on another issue. When his suspension was vacated, he believes the effective date of the vacation was updated incorrectly. According to the regulation, the demotion action’s effective date is the date of the vacation, while the date of rank is the date of the original Article 15. In his case, the vacation action occurred on 24 November 2009, yet it was updated for 20 July 2009 subjecting him to a debt for overpayment of rank. The applicant’s complete response, with attachments, is at Exhibit F. ________________________________________________________________ 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. We took notice of the applicant's complete submission and the available evidence of record in judging the merits of the case; however, we find insufficient evidence that the applicant was denied any rights entitled to under the Article 15 and subsequent vacation action processes. We do not find the commander abused his discretionary authority, during either process, or that his actions were arbitrary or capricious. 4. Notwithstanding the above determination, we believe some relief is warranted. We note the applicant’s date of rank (DOR) and demotion effective dates were updated as 24 November 2009. Although the DOR is correct, the effective date was not correctly established in accordance with AFI 51-202, para 5.15. As such, while we find no error or injustice with the commander’s actions in administering the Article 15, an error did occur in the applicant’s demotion effective date. Therefore, we recommend the applicant’s record be corrected to the extent indicated below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that he was demoted to the grade of staff sergeant (E-5) with a date of rank of 20 July 2009 and a promotion effective date of 24 November 2009, rather than 20 July 2009. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-03054 in Executive Session on 10 April 2014, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary pertaining evidence to AFBCMR Docket Number BC-2013-03054 was considered: Exhibit A. DD Form 149, dated 5 Jun 13, w/atchs. Exhibit B. Letter, Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 19 Aug 13. Exhibit D. Letter, NGB/SGPA, dated 16 Sep 13. Exhibit E. Letter, SAF/MRBR, dated 15 Oct 13. Exhibit F. Letter, Applicant’s Response, dated 14 Nov 13. 1 2