RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-04858 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His Article 15, Uniform Code of Military Justice (UCMJ) punishment, dated 7 April 2007, be removed from his record. 2. His grade of airman first class (E-3) be restored. 3. He be promoted to the grade of senior airman (E-4). ________________________________________________________________ APPLICANT CONTENDS THAT: His commander retaliated against him after he was removed from deployment status due to him seeking mental health counseling. The applicant does not provide any additional evidence in support of his appeal. The applicant’s complete submission is at Exhibit H. ________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Regular Air Force who served on active duty from 5 February 2002 to 4 October 2007. He was progressively promoted to the grade of senior airman (E-4), effective and with a date of rank (DOR) of 22 July 2004. On 28 October 2004, the applicant received Article 15 punishment for being drunk and disorderly; and, striking another airman. His punishment consisted of a reduction in grade to airman first class with a new DOR of 28 October 2004, and forfeiture of $747.00 pay per month for two months, suspended until 27 April 2005. On 15 November 2004, his suspended non-judicial punishment was vacated because the applicant failed to go to his appointed place of duty. On 21 September 2005, the applicant received a Letter of Reprimand (LOR) for making a verbal threat to a member of his unit on 17 September 2005. On 30 September 2005, the applicant received Article 15 punishment for being derelict in his performance of duties by willfully refraining to remove a security screen of a patrol vehicle as it was his duty to do. He received punishment consisting of reduction to the grade of airman (E-2) with a new DOR of 30 September 2005, forfeiture of $692.00 pay, suspended until 29 March 2006, restriction to the limits of the base for 60 days, and a reprimand. On 13 November 2006, the applicant received an LOR for being detained at the United States/Mexico border for curfew violation on 11 November 2006. On 27 February 2007, the applicant was diagnosed with Bipolar disorder as a result of an assessment of military fitness for duty. As a result, he was referred to be evaluated through the disability evaluation system (DES). On 2 April 2007, the applicant was accused of being derelict in the performance of his duties by willfully failing to obtain a government issued passport for an upcoming deployment, in violation of Article 92, Uniform Code of Military Justice (UCMJ); and, making a false official statement regarding turning in his passport paperwork, in violation of Article 107, UCMJ. The applicant consulted with counsel, waived his right to a court-martial, and accepted non-judicial punishment proceedings. On 9 April 2007, after considering the available evidence and matters submitted by the applicant, the squadron commander found the applicant committed the alleged offenses. As a result, the applicant received Article 15 punishment consisting of reduction in grade from airman first class to airman basic (E-1) with a new DOR of 9 April 2007, 15 days extra duty, and a reprimand. The applicant appealed the squadron commander’s decision; however, the group commander denied his appeal on 19 April 2007. On 7 May 2007, the applicant was notified of his commander’s intent to recommend him for a general (under honorable conditions) discharge for Misconduct: Minor Disciplinary Infractions, under the authority of Air Force Program Directive (AFPD) 36-32 and Air Force Instruction (AFI) 36-3208, paragraph 5.49. The applicant acknowledged his commander’s intent and submitted a statement in his own behalf On 25 May 2007, a Medical Evaluation Board (MEB) referred the applicant to an Informal Physical Evaluation Board (IPEB) for evaluation of his condition of Bipolar Disorder. On 2 July 2007, the IPEB diagnosed the applicant with Bipolar Disorder Not Otherwise Specified, with Social and Industrial Adaptability Impairment rated as considerable. On 28 August 2007, the IPEB recommended the applicant be temporarily retired with a 50 percent disability rating. However, further evaluation by Mental Health personnel, subsequently ruled-out the applicant’s diagnosis of Bipolar Disorder and indicated his symptoms supported a diagnosis of Personality Disorder. As a result, the IPEB changed its diagnosis to Personality Disorder which was not separately unfitting and not compensable or ratable; and, found the applicant fit to be returned to duty. On 14 September 2007, the applicant submitted an appeal to the IPEB findings and requested a Formal Physical Evaluation Board (FPEB). On 25 September 2007, Secretary of the Air Force Personnel Counsel disapproved the applicant request for a FPEB. The applicant was involuntarily released from active duty on 4 October 2007 with a general (under honorable conditions) discharge. He served 5 years, 7 months, and 29 days on active duty. A Department of Veterans Affairs (DVA) rating decision, dated 14 May 2008, indicates the applicant was granted service connection for Bipolar Disorder with a 30 percent disability rating. On 13 July 2010, the applicant appealed to the AFBCMR to change his characterization of discharge from general (under honorable conditions) to honorable, his narrative reason for separation to temporary disability, and his reentry (RE) code and separation codes be changed accordingly. After considering the applicant’s requests, the Board granted the applicant’s appeal to change his discharge characterization to honorable, his narrative reason for separation to “Secretarial Authority,” and his reentry code to “2C” (Involuntary Separation with Honorable Discharge). However, the Board denied his request for a medical retirement. For an accounting of the rationale of the earlier Board’s decision, please see the Record of Proceedings at Exhibit G. ________________________________________________________________ _ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states the applicant does not make a compelling argument as to why the Board should overturn the commander’s non-judicial punishment decision on the basis of an error or injustice. The complete JAJM evaluation is at Exhibit C. AFPC/DPSOE defers to AFLOA/JAJM. DPSOE states that since JAJM has found no error or injustice, they defer to the JAJM recommendation to deny the removal of the applicant’s 9 April 2007 Article 15. The complete DPSOE evaluation is at Exhibit D. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: A one-hour interview and review of medical records cannot support a decision to completely reverse the IPEB decision and push a discharge for misconduct. The facts and circumstances surrounding the commander-driven retaliation is mandated to remove his Article 15, dated 7 April 2007; reinstatement of his grade of airman first class; and promotion to the appropriate rank of senior airman due to his time-in-grade and time–in- service. The applicant’s complete rebuttal, 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 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 an error or an injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of AFLOA/JAJM adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. We note the applicant’s contentions that his commander retaliated against him after he was removed from deployment status; however, we are not persuaded by the evidence that the actions taken against the applicant in this case were arbitrary, capricious or not within the commander’s discretionary authority. Therefore, we do not find the actions serve to make the applicant the victim of error or injustice. Accordingly, in the absence of evidence to the contrary, we do not find it in the interest of justice to recommend granting the relief sought in this application. 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 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-2013-04858 in Executive Session on 3 June 2014, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered for AFBCMR Docket Number BC-2013-04858: Exhibit A. DD Form 149, dated 16 Oct 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 5 Dec 13. Exhibit D. Letter, AFPC/DPSOE, dated 20 Dec 13. Exhibit E. Letter, SAF/MRBR, dated 18 Apr 14. Exhibit F. Letter, Applicant, not dated, w/atchs. Exhibit G. ROP, dated 30 Aug 11. 4 5 6