RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-05364

XXXXXXXXXXXX	COUNSEL: NONE

	HEARING: NO

APPLICANT REQUESTS THAT:

His Date of Rank (DOR) to the grade of senior airman (E-4) be reinstated to 9 May 2011.

APPLICANT CONTENDS THAT:

He was accused of avoiding duty by faking symptoms of vertigo, double vision and blurry vision.  However, he was subsequently retired with a disability rating of 100 percent for the same symptoms.  In addition, he has documentation to support that his convalescent leave was valid.  The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a former Air Force senior airman, retired for disability.  On 10 November 2008, the applicant enlisted in the Air Force and was promoted to senior airman on 9 May 2011.

In April 2016, the applicant underwent ear surgery.  Claiming afterward that he suffered severe symptoms, he made multiple requests for convalescent leave, quarters, or a change to half workdays.  While on convalescent leave, the applicant was observed visiting a local arcade without displaying any of the symptoms, such as using a cane and keeping one eye closed, that manifested when he visited his duty section.  His symptoms also appeared to subside when he flew to a gaming conference in another state, which he did without assistance (e.g., he was observed wrangling his own luggage, again without his cane).

On 31 August 2016, based on witness statements and video evidence showing behavior by the applicant that was inconsistent with his claims, the applicant’s squadron commander offered him nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for malingering (feigning symptoms to avoid duty).  The applicant consulted with defense counsel, accepted the NJP, and waived his right to demand trial by court-martial.  The applicant provided a written presentation, in which he gave a detailed history of his medical problems and explained that the videos of him acting normal were instances when he was able to fight through the pain.  He maintained that he did experience vision problems and extreme vertigo.  In addition, he provided character statements from his friends, roommates, and a local video game arcade owner.

On 9 September 2016, the commander decided that the applicant had committed the charged offense and imposed punishment, consisting of a reprimand and a reduction to the grade of airman first class (E-3).  The applicant then appealed to the maintenance group commander, the appellate authority in his case.  In the legal review provided to the group commander, the staff judge advocate (SJA) noted the applicant was on extended convalescent leave because he stated his vertigo and double vision were so severe that he could not work.  However, several people witnessed him off base, on two different days, acting normal and not displaying symptoms.  The SJA also noted the YouTube videos of the applicant acting as if nothing was wrong.  Even the applicant’s Primary Care Manager had stated that, although subjective symptoms like vertigo and double vision are impossible to quantify, the video evidence of the applicant was not consistent with the symptoms he asserted.  The appellate authority denied the appeal on 16 September 2016.

On 29 March 2017, the Informal Physical Evaluation Board (IPEB) found the applicant unfit for continued military service and recommended he be permanently retired with a 100 percent disability rating for (1) Permanent Right Sensorineural Hearing Loss and Persistent Vertigo with Right Sigmoid Sinus Thrombus (Blood Clots), Requiring Ongoing Anticoagulation with Xarelto; and (2) Right Knee Pain, with History of Osteochondritis Dissecans.  Regarding the applicant’s post-operative complaints of vertigo, double vision, and blurry vision, the IPEB noted there was some inconsistency in the presence of the symptoms, and “ophthalmology ruled out any pathology.”  The IPEB also noted that the applicant’s “headaches and vision changes” were “not severe or persistent enough to be unfitting for duty.”  Nonetheless, the IPEB found the applicant’s medical condition on the whole was “not compatible with the long-term rigors of military service.”

In a memorandum dated 19 August 2013, AFPC/DPFDD requested the Secretary of the Air Force Personnel Council (SAFPC) provide a grade determination for retirement.  SAFPC did so on 4 April 2017, finding that the applicant did serve satisfactorily in the grade of senior airman.  The applicant’s retirement was effective 29 May 2017.

Excerpts from the applicant’s record are at Exhibit B.

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denying the application because there is no evidence of error or injustice.  The commander, at the time of the NJP action, had the best opportunity to evaluate the evidence and determine what action would best maintain good order and discipline and promote a positive behavior change in the applicant.  The commander’s ultimate decision to impose NJP was based on the evidence of the case, and his punishment decision was well with the limits of his authority and discretion.
 
The applicant presents evidence of his vertigo diagnosis from the IPEB.  He also provides medical documentation from August 2016 discussing the symptoms that led to his vertigo diagnosis on 29 September 2016.  However, there was no official diagnosis of vertigo at the time of the NJP action.  The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 10 September 2018, for comment (Exhibit D), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.   After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFLOA/JAJM and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  Therefore, the Board recommends against correcting the applicant’s records.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2017-05364 in Executive Session on 4 October 2018:

, Panel Chair
, Panel Member
, Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 13 September 2018.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFLOA/JAJM, dated 29 June 2018.
Exhibit D:	Notification of Advisory, SAF/MRBC to applicant, dated 10 September 2018.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.