RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03744 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: The non-judicial punishment (NJP), he received under Article 15, and two Letters of Reprimand (LORs) be removed from his record, and he be restored to the grade of staff sergeant (SSgt, E-5). APPLICANT CONTENDS THAT: He received an Article 15 and two LORs and while he provided rebuttal information for each incident, he was unable to accurately express his state of mind in these incidents. He was recently diagnosed with Autism Spectrum Disorder (Asperger’s) and believes this has affected how he processes information and thoughts. He acknowledges his actions were unprofessional and under normal circumstances, the action and punishment his commander took would be just. But, he believes his Asperger’s Syndrome diagnosis contributed to his making irrational choices. He also believes his ability to function at a satisfactory level has been significantly impacted by his diagnoses of Obstructive Sleep Apnea and Shiftwork Disorder. He has not had any disciplinary infractions in his current position. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 23 Jun 09, the applicant commenced his enlistment in the Regular Air Force and is currently serving in the grade of senior airman (SrA) E-4. A Chronological Record of Medical Care, dated 20 Mar 14, provided by the applicant, notes diagnoses of sleep apnea and organic circadian rhythm sleep disorder-shift work type. On 1 Apr 14, the applicant’s commander offered him nonjudicial punishment (NJP) proceedings under Article 15 UCMJ for one specification of a violation of Article 92, for failing to come to a complete stop and proceeding into the installation without security forces authorization. On 4 Apr 14, the applicant acknowledged receipt of the offered NJP proceedings and provided a written response and requested a personal appearance before the commander. On 9 Apr 14, his commander imposed the NJP and the applicant acknowledged receipt. The applicant’s imposed punishment was reduction to the grade of senior airman (SrA), E-4, with a new date of rank (DOR) of 9 Apr 14, forfeiture of $1,164.00 per month for two months, suspended through 8 Oct 14, after which time it will be remitted without further action, unless vacated and a reprimand. On 15 Apr 14, the applicant appealed the NJP and on 18 Apr 14, his commander granted the appeal. The AF Form 3070A was amended to note that the commander granted the appeal in full and that portion of the punishment which called for reduction to the grade of SrA with new DOR of 9 Apr 14 is changed to reduction to the grade of SrA, suspended through 8 Oct 14, after which time it will be remitted without further action, unless sooner vacated. On 28 Jul 14, the applicant received a LOR for dereliction in performance of his duty as Installation Control member because he failed to maintain positive control of an individual attempting entry on the Air Force Base. On 29 Jul 14, he acknowledged receipt of the LOR and provided a rebuttal. The Flight Sergeant reviewed the rebuttal and deemed the LOR appropriate. The applicant acknowledged the Flight Sergeant’s final decision. On 7 Aug 14, the applicant received a second LOR for failure to obey an order or regulation by abandoning his post. On the same date, he acknowledged receipt of the LOR. On 10 Aug 14, he provided his rebuttal and on 12 Aug 14, the Operations Superintendent reviewed the rebuttal and deemed the LOR appropriate. On the same day, the applicant acknowledged the Operation Superintendent’s final decision. On 13 Aug 14, the applicant received an AF Form 366, Record of Proceedings of Vacation of Suspended Nonjudical Punishment, for leaving his post before being relieved and failure to maintain positive control of an individual attempting to enter the base. This AF Form 366 vacated his previous suspended grade punishment. On 18 Aug 14, he acknowledged receipt of the AF Form 366 and provided a written statement. On 20 Aug 14, the commander imposed his decision. The applicant acknowledged receipt on the same day. The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C, D, E and F. AIR FORCE EVALUATION: AFLOA/JAJM recommends denial, with respect to the applicant’s requests for removal of the Article 15 and LORs, indicating there is no evidence of an error or an injustice. Nonjudicial punishment (NJP) is authorized by Article 15, Uniform Code of Military Justice (UCMJ), and governed by the Manual for Courts-Martial and AFI 51-202, Nonjudicial Punishment. This procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects. The service member first must be notified by their commanders of the nature of the charged offenses, the evidence supporting the offenses, and the commander's intent to impose the punishment. The service member may consult with a defense counsel to determine whether to accept the NJP or demand trial by court-martial. Nonjudicial punishment is also not, when imposed, a criminal conviction. All legal requirements and due process were met in the case at hand. The applicant does not make a compelling argument that the Board should overturn the commander’s original, NJP decision on the basis of injustice. The commander’s decision on the NJP action is firmly based on the evidence of the case and the punishment decision was well within the limits of the commander’s authority and discretion. Given the applicant’s law enforcement training and experience in the Air Force, he should have known to stop at the gate and show his identification before proceeding onto the installation. The applicant was a non-commissioned officer at the time and had come through entry points on installations for years prior to this incident without any issues. He claims his recent diagnosis of Asperger’s Syndrome, for which he provides no medical documentation, caused this aberration. However, he provides no evidence to support that claim. As such, the commander’s decision to give NJP and his subsequent punishment are appropriate and should not be removed from his record, nor should the applicant’s grade be restored to SSgt, E-5. The applicant’s demand for relief with respect to his LORs is very similar to the analysis for his demand to remove his NJP from his record. The LORs are authorized by AFI 36-2907, Unfavorable Information File (UIF) Program, and “commanders, supervisors, and other persons in authority can issue administrative counseling, admonitions, and reprimands. These actions are intended to improve, correct, and instruct subordinates who depart from standards of performance, conduct, bearing, and integrity, on or off duty, and whose actions degrade the individual and unit's mission.” Just because a service member receives an LOR does not mean that it becomes part of his permanent record. A commander has the option of placing an LOR in a UIF, but an LOR only stays in a UIF for a maximum of two years. Both LORs were appropriate reprimands and contain language to help improve and correct the applicant’s performance in accordance with AFI 36-2907. Placing both the LORs in the applicant’s UIF was appropriate since he had received NJP a few months before these incidents. In addition, the UIF is temporary and the LORs can be removed at any time before the two-year mark. The appropriate way to remove the LOR from a UIF is to petition the commander, otherwise, they will automatically be out of the UIF in two years and as a result, not retained in his permanent record. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSIM recommends denial indicating there is no evidence of an error or an injustice. The applicant is requesting removal of his NJP and LORs from his record. He is also requesting reinstatement of his rank to the grade of staff sergeant (SSgt). The applicant contends that his rebuttal to the punishments was significantly impaired due to his recent diagnosis with Autism Spectrum Disorder. Also, the combination of his sleep insufficiency, obstructive sleep apnea, and shift working, affected his ability to function at a satisfactory level. On 28 Jul 14, the applicant received a LOR for dereliction in performance of his duty as Installation Entry Controller. On 7 Aug 14, the applicant received a LOR for failure to obey an order or regulation for abandonment of his post. Additionally, he received an AF Form 366, for leaving his post before getting relieved and failure to maintain positive control of an individual attempting to enter the base. This AF Form 366 vacated his previous suspended rank reduction. They are unable to state if the applicant's leadership’s actions were just or not, they can only identify whether or not proper procedures were followed in the administration of the punishment. With respect to the applicant’s request to remove his NJP, AFI 51- 202, Nonjudicial Punishment states, “following full and fair consideration of the evidence including any matters presented by the member, the commander indicates the member committed one or more of the offenses alleged and imposed punishment as listed in Item 14 of the AF Form 3070A, Record of Nonjudicial Punishment Proceedings. The commander lines out and initials any offense(s) for which NJP is not appropriate or which the member did not commit. If the member committed one or lesser included offenses, the commander consults with the staff judge advocate (SJA) before changing an alleged offense to a lesser included offense.” DPSIM is unable to state if the commander’s action was just or not, they can only identify whether or not proper procedures were followed in the administration of the action. After careful review, they have determined the evidence presents that proper procedures were followed in the administration of the NJP. With respect to the applicant’s request to remove his LORs, AFI 36-2907, Unfavorable Information File, states, “Administer a counseling, admonition, or reprimand, verbally or in writing. If written, the letter states: What the member did or failed to do, citing specific incidents and their dates, what improvement is expected, that further deviation may result in more severe action. That the individual has three (3) duty days to submit rebuttal documents for consideration by the initiator. The person who initiates the RIC, LOC, LOA, or LOR has three (3) duty days to advise the individual of their final decision regarding any comments submitted by the individual. The person who initiates a RIC/LOC, LOA, or LOR may send it to the member’s commander or superiors for information, action, or for their approval for file in the Unfavorable Information File (UIF) or Personal Information File (PIF). Include the member’s written acknowledgment and any documents submitted by the member.” They are unable to state if the commander's action was just or not, they can only identify whether or not proper procedures were followed in the administration of the action. After careful review and based on the evidence presented, they have determined proper procedures were followed in the administration of the action, and the LORs were properly issued in accordance with applicable instructions. With respect to the applicant’s request to restore his grade to SSgt E-5, AFI 51-202, Vacation of Suspension, states, “a commander may vacate all or a portion of the suspended punishment. Following full and fair consideration of the evidence, including any matters presented by the member, the commander indicates one of the following actions in item 4a of the AF Form 366 by marking or initialing the appropriate block on the AF Form 366. The commander lines out and initials any violations for which vacation of the suspended punishment is not appropriate or which the member did not violate.” According to the evidence provided by the applicant, the AF Form 366 was accomplished properly and according to the applicable guidance. After careful review, they determined the evidence presented shows proper procedures were followed in the administration of the administrative actions and punishment. A complete copy of the AFPC/DPSIM evaluation is at Exhibit D. AFPC/DPSOE recommends denial with respect to the applicant’s request for restoration to the grade of staff sergeant (SSgt), E- 5, indicating there is no evidence of an error or injustice. DPSOE states they have no equity in the decision regarding removal of the NJP and therefore defer to AFLOA/JAJM's recommendation. However, should the Board grant the applicant’s request, his grade would be staff sergeant (SSgt) with a date of rank (DOR) of 1 Aug 13. A complete copy of the AFPC/DPSOE evaluation is at Exhibit E. The AFBCMR Medical Consultant recommends denial of the applicant’s full petition, indicating there is no evidence of an error or an injustice. The applicant contends that his sleep-related and circadian rhythm-related disturbances significantly impacted his ability to function at a satisfactory level, the Medical Consultant is aware of the consequences of insufficient sleep time, whether due to untreated obstructive sleep apnea (OSA) or from interruptions of an individual’s circadian rhythm sleep cycle; which may then result in fatigue, reduced cognitive focus, and changes in mood; as well as influences upon complex physiologic neuroendocrine functions. When considering the nature of the applicant’s offenses, wrongfully failing to come to a complete stop at a base entry gate, allowing an authorized vehicle to enter base while serving as a sentry, and leaving his post are not offenses, which this advisor can definitively attribute to a medical disorder beyond the applicant’s ability to placate. Albeit possible that a sleep deprived individual typically may doze-off during a period of less stimulating activity, e.g., stopped at a traffic light, the Medical Consultant is unable to determine whether the applicant experienced a lapse in alertness, e.g., near narcolepsy, at the time he approached the base gait as the reason he failed to come to a complete stop; or whether he experienced a similar lapse in alertness or situational awareness when he allowed an individual to enter the base without proper identification. Similarly, the Medical Consultant acknowledges that Asperger’s Syndrome, now subsumed under the unifying diagnosis of Autism Spectrum Disorder, may present with deficits in social communication and interaction, a restricted or repetitive pattern of behavior, interests, or activities, e.g., repetitive motor movements, insistence on sameness with extreme distress at small changes (greeting rituals, need to take same route or eat same food every day). Absent a ritualistic pattern of seeking lunch at Domino’s Pizza, the Medical Consultant did not consider the applicant’s decision to leave his post a definitive result of a mental deficit affecting his judgment, which was not within his span of control. However, the Medical Consultant could not rule out the possibility that either a pre-existing Attention Deficit Hyperactivity Disorder (ADHD) or Autism Spectrum Disorder, both developmental in origin, may have contributed to the applicant’s preoccupation with another activity, resulting in the authorized entry of a vehicle into the base; likely during an unintended lapse in attention. Finally, reflecting upon the applicant’s failure to properly disclose his prior treatment for a mental condition, the Medical Consultant opines that the failure to do so constitutes a fraudulent entry to military service. While neither of these conditions (Asperger’s Syndrome, Autism Spectrum Disorder, ADHD, Circadian Rhythm Sleep Disturbance) automatically warrants a separation action, if the applicant’s behavior can be attributed to one or more of these condition, if not brought under control, then that raises a question of his suitability for continued military service; particularly in the Security Forces career field, notwithstanding that he has since been prescribed continuous positive airway pressure (CPAP) device and his duty schedule has been stabilized. This might warrant mitigation of one of his LORs. Nevertheless, since the applicant was diagnosed with a mental disorder while in military and alleges his misconduct relates to the behavioral consequences of a mental disorder and other medical conditions, the Medical Consultant opines that an advisory opinion from a psychologist or psychiatrist should be obtained. A complete copy of the AFBCMR Medical Consultant’s evaluation is at Exhibit F. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In further support of his requests the applicant notes his failure to stop at the gate and present his identification card was caused by sleep insufficiency, his CPAP machine not being correctly titrated, obstructive sleep apnea, idiopathic hypersomnia and shiftwork disorder. The documents from his physician show that he had all of these conditions. His Asperger’s Syndrome played a role in the sense that the decision involved was a decision made on impulse. The facts are that he had only gotten four hours of sleep prior to the 12-hour night shift he had worked prior to the gate runner incident. He had also lost a lot of sleep leading up to the day of the incident. Thus creating what is called a sleep debt. A sleep debt is where you owe your body sleep. His sleep disorders compounded and exacerbated the problem. He was unable to think logically and was cognitively impaired. This incident was the result of these sleep related issues. He believes that if he had not been put on the night shift the whole incident could have been avoided. Both his squadron leadership and the medical community refused to help him as he kept reporting to them many times throughout the first week on night shift that he was having sleep attacks as he was driving home after work. It was noted in his medical records that his physician would not give him a profile from working night shift due to his living so far away. He had legitimate medical issues and how far away he lives should have no bearing on his receiving a duty hour limitation profile. He eventually was able to get a profile with the eight-hour shift limitation from a different Primary Care Manager even though his home address has not changed. The applicant reiterates his previous contention that the two incidents involving the LORs were caused partially because of the Asperger’s Syndrome, and his not getting sufficient sleep. He was still working a 12-hour shift but the only difference was that it was in the day. Secondly, his mind was still used to working at the Visitor Control Center (VCC). He worked in the VCC from October 2012 until January 2014. At the VCC personnel were freely able to leave their post and walk to Domino’s after only notifying someone else working there that they were going to go there. This was the pattern he was accustomed to and he had a hard time adjusting to a new routine that involved more asking for permission rather than having more freedom of movement. Regarding comments on his 2013-2014 enlisted performance report (EPR), he contends that the EPR was falsified and he has been in the process of trying to get that EPR removed. Specifically, the EPR was not accomplished by the person who he knew as his rater. This is a violation of AFI 26-2406, Officer and Enlisted Evaluation Systems. His squadron admitted that TSgt T. was never recorded as his supervisor in the military personnel data system (MilPDS) and that TSgt B. remained as his supervisor of record. As for the discussion comments on his case, he had worked at the VCC from October 2012 until January 2014. He also had worked at S4 with the person who was the Vehicle Control Officer from January 2014 until March 2014. When he was put back on flight in March 2014, he had a very hard time adjusting to the new way of doing things because he was still used to how things were done at the VCC. The VCC pattern was still ingrained in him and was completely different from the pattern done on flight. With the VCC, if you worked there, you would just tell your coworker that you were going to Domino's and you would just go there and come back. The flight had a similar policy but it seems like he was the only one who has gotten in trouble for walking to get food at that establishment. After the incident, he was told by the flight chief that he was supposed to ask for permission to leave his post. He apologized and explained that he was not aware of that rule and that he was still used to the policies of the VCC and was having a hard time adjusting to the rules on flight. Regarding the comment that he failed to disclose prior treatment for a mental condition, he clearly remembers disclosing that in the documentation he filled out when he enlisted, but the recruiter had him fill out another form and instructed him to mark “no” for those particular questions. The recruiter took the original form and shredded it. While he disagrees with the Medical Consultant's recommendations for the most part, he does agree that an independent, unbiased assessment by a psychologist or psychiatrist before the board renders a decision should be submitted. He thinks that this psychological assessment will shed further light on how his medical conditions have contributed in altering his ability to make decisions, which led to his nonjudicial punishment. The applicant’s complete response, with attachments, is at Exhibit H. AIR FORCE EVALUATION: The AFBCMR Mental Health Consultant recommends denial indicating there is no evidence of an error or injustice. The Mental Health Consultant reviewed the applicant’s complete submission, his military personnel and medical records, and concurs with the evaluation rendered by the AFBCMR Medical Consultant. The Medical Consultant’s evaluation was accurate and comprehensive from a mental health perspective. Furthermore, the Mental Health Consultant concurs with the Medical Consultant’s assessment that the applicant has not provided sufficient evidence to conclude that an error or injustice has been committed sufficient to warrant granting the applicant’s requests that his Article 15, non-judicial punishment (NJP), and two Letters of Reprimand be removed from his record along with restoration of his grade to SSgt, E-5. A complete copy of the AFBCMR Mental Health Consultant’s evaluation is at Exhibit I. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In his response the applicant indicates the Mental Health Consultant either did not see, or ignored his rebuttal of the Medical Consultant’s assessment and the additional information that was provided regarding his case. Overall, the Mental Health Consultant is not an independent and unbiased mental health professional. He is employed by the military, and is affiliated with the AFBCMR. An independent and unbiased mental health professional would be someone who is neither affiliated with the government, military, himself or the AFBCMR. The applicant requests to be seen by a neurological mental health psychologist or psychiatrist who has no affiliation with the AFBCMR, the government, the military or himself to serve as the mental health consultant who can do the independent, unbiased assessment before the board renders a decision. An independent psychological assessment will shed further light on how his medical conditions have contributed in altering his ability to make decisions. The Mental Health Consultant never specified what information would be required to show sufficient evidence to substantiate his claim. The tests Maintenance of Wakefulness Test (MWT) and the Multiple Sleep Latency Test (MSLT) that his physician conducted are the industry standard tests approved by the American Academy of Sleep Medicine (AASM) to diagnose sleep problems in people. The MWT test proves that he had a hard time staying awake and it is widely known in the sleep medicine community that sleep disorder issues impair cognitive function. Also, having Asperger’s Syndrome compounds the decision-making impairments caused by the sleep disorders. He requests the AFBCMR get a consultation from a sleep medicine specialist who is a member of the American Academy of Sleep Medicine before rendering a decision. He believes this will provide the Board fair and impartial advice from qualified professionals who are very familiar with the sleep disorders and neurological mental health conditions. He reiterates that he has not had any disciplinary issues since the Letter of Reprimand in August 2014. He believes this adds credence to his claim about the working conditions on flight impairing his ability to function and make decisions at the appropriate level. He believes the Mental Health Consultant did not give a fair assessment regarding the mental health perspective; and further believes that having an unbiased representative who is a specialist in sleep disorder medicine and neurological mental health will give the board the clearest picture regarding his issues. The applicant’s complete response, with attachments, is at Exhibit K. 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, to include his rebuttals, in judging the merits of the case; however, based on the available evidence of record, it appears the administrative actions were properly processed in accordance with the appropriate Air Force instructions. We find no evidence that indicates the applicant’s substantive rights were violated, he was coerced to waive any of his rights, or the commander abused his discretionary authority. The applicant’s contentions that his Asperger’s Syndrome, Shift Work Disorder and Obstructive Sleep Apnea diagnoses affected how he processes information and thoughts as well as his ability to function at a satisfactory level are duly noted. However, the applicant has not provided sufficient evidence to establish his misconduct relates to the behavioral consequences of a mental disorder and other medical conditions and warrants the requested relief. Based on the above comments, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPR) and the AFBCMR Medical and Mental Health Consultants and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. Therefore, in the absence of persuasive evidence to the contrary, we find no basis to recommend granting the requested relief. 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-2014-03744 in Executive Session on 1 Feb 16, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-03744 was considered: Exhibit A. DD Form 149, dated 12 Sep 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFLOA/JAJM, dated 6 Nov 14. Exhibit D. Memorandum, AFPC/DPSIM, dated 18 Dec 14. Exhibit E. Memorandum, AFPC/DPSOE, dated 16 Jan 15. Exhibit F. Memorandum, AFBCMR Medical Consultant, dated 4 Mar 15. Exhibit G. Letter, SAF/MRBR, dated 17 Mar 15. Exhibit H. Letter, Applicant, undated, w/atchs. Exhibit I. Memorandum, AFBCMR Mental Health Consultant, dated 29 Dec 15. Exhibit J. Letter, SAF/MRBR, dated 4 Jan 16. Exhibit K. Letter, Applicant, undated, w/atchs.