RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00973

XXXXXXXXXX	COUNSEL: XXXXXXXXXX
	
	HEARING REQUESTED: NO 

APPLICANT’S REQUEST

1.  His letter of reprimand (LOR), dated 17 Oct 16, reprimanding him for a violation of Article 111 (drunken or reckless operation of a vehicle), of the Uniformed Code of Military Justice (UCMJ) be removed, to include any other references of this violation.

2.  His administrative demotion be reversed and his grade to staff sergeant (E-5) be restored with all pay and allowances.  

3. Medical Evaluation Board (MEB) proceedings be initiated to evaluate his eligibility for a medical retirement and he be awarded any back pay and allowances to which he is entitled. 

4.  His Department of Veterans Affairs (DVA) line of duty (LOD) determination be corrected to reflect his injuries occurred in the LOD (Authority outside of the Board’s purview).

APPLICANT’S CONTENTIONS

On 10 Jul 16, he was in a serious motorcycle accident, which caused a traumatic brain injury (TBI) and several other medical problems.  The traffic collision report indicated that alcohol was involved as an unsafe/unlawful contributing factor, and the report listed his blood alcohol content (BAC) as 0.12.  The report contained no other information regarding the allegation of driving under the influence (DUI), nor any explanation of the source of that BAC number.  Despite this lack of evidence and the relevant law enforcement agencies’ failure to file any charges of DUI, he received an LOR on 17 Oct 16 for a violation of Article 111, UCMJ.  Despite the lack of evidence regarding the DUI, his response to the LOR and the strongly written character statement, his command initiated an administrative demotion on 25 Oct 16, which reduced his rank from E-5 to E-4.  After he was discharged, the DVA conducted an LOD determination, based on treatment records which indicated BAC results of 0.12, and concluded that his TBI was the result of willful misconduct and the injuries caused by his accident had not occurred in the LOD.  Prior to discharge, he should have been considered for medical retirement or deemed eligible for DVA benefits.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force staff sergeant (E-5).  

On 17 Jul 09, according to DD Form 4, Enlistment/Reenlistment Document – Armed Forces of the United States, the applicant enlisted in the Air Force in the Delayed Entry/Enlistment Program (DEP) and on 23 Nov 09 he was discharged from the DEP and enlisted in the Regular Component of the Air Force.

On 17 Oct 16, an LOR provided by the applicant shows he was reprimanded for violation of Article 111, UCMJ for driving while intoxicated.

On 20 Oct 16, a response to the LOR provided by the applicant shows he took responsibility for his actions, asked for an extension on his current enlistment, and asked that his entire record be considered in the disposition of the LOR.

On 25 Oct 16, an Administrative Demotion of Airmen Memorandum, shows the commander recommended demotion to the grade of E-4 per AFI 36-2502, Airman Promotion/Demotion Programs, paragraph 6.3.4, specifically Item 14.

On 28 Oct 16, a Response to Administrative Demotion Action memo shows the applicant submitted a written statement on his behalf for the commander’s consideration before final disposition.  

On 31 Oct 16, the Administrative Demotion of Airmen Memorandum shows the commander recommended the demotion to the demotion authority.  

On 2 Nov 16, the Administrative Demotion of Airmen Memorandum shows the demotion authority found the demotion was appropriate and demoted the applicant to E-4 with a new date of rank of 2 Nov 16. 

On 22 Nov 16, DD Form 214, Certificate of Release or Discharge from Active Duty, shows the applicant was honorably discharged from the Air Force under authority of AFI 36-3208, Administrative Separation of Airmen, with narrative reason for separation of Completion of Required Active Service, with the corresponding separation code of MBK and reentry code 1J.

For more information, see the excerpt of the applicant’s record at Exhibit B.

AIR FORCE EVALUATION

HQ AFPC/JA recommends denying the applicant’s requests as there is no evidence of a material error or injustice relating to member’s voluntary separation. Both LOR’s and administrative demotions require a lower burden of proof than that required for conviction in criminal court.  Both require a preponderance of the evidence to show that the elements of a given offense were met.  Additionally, traditional rules of evidence applicable at a criminal trial do not apply to adverse administrative actions.  Given the apparent and alleged lack of an admissible BAC test, it is understandable that an entity with jurisdiction over the crime may choose not to prosecute for fear of not meeting the criminal burden of proof of beyond a reasonable doubt.  At the same time, there may be evidence to support the conclusion by a preponderance of the evidence that the applicant was operating his motorcycle while intoxicated and without a helmet.  In this case, the applicant’s statement to emergency medical technician (EMT) workers that “I have had a lot,” the fact he was returning from a bar, the medical report from the early morning after his crash that he smelled of alcohol, and his statement at his ophthalmology checkup that he was not wearing a helmet, are all bits of evidence the commander providing the LOR and the demotion authority could have used to reliably conclude the member had driven while intoxicated for purposes of administrative adverse action.  Next, the applicant did not submit any paperwork or documentation showing he should have been referred for an MEB by his local medical treatment facility (MTF).  In the medical records submitted, the applicant is contemplating whether or not to re-enlist, not concerned that he is unfit for continued duty.  Additionally, the medical providers do not appear to have concerns about his fitness for duty.  It is certainly possible for Airmen to suffer TBI, recover, and remain within medical standards.  Ultimately, the applicant’s medical providers are responsible for identifying unfitness for duty and preventing improper separation for unfit Airmen.  Finally, the Air Force does not control the DVA’s independent LOD investigation and finding. The AFBCMR has no authority to correct a DVA record whether it constitutes an error or injustice or not. The Secretary of the Air Force may only correct “any military record of the Department,” referring to the Department of the Air Force. AFI 36-2603, paragraph 1.1. The DVA record simply is not an Air Force record over which the Secretary has authorization to correct.

The complete advisory opinion is at Exhibit C.

ADDITIONAL AIR FORCE EVALUATION

The AFRBA Medical Advisor recommends denying the application and finds insufficient evidence to support the applicant’s requests for the desired changes to his records. Through many individual contentions, the applicant and counsel virtually desire all things associated with an alcohol incident (a.k.a. DUI) be removed from his records based on a “clear legal error” and the applicant being “confused” at the time of the accident.  The “Traffic Collision Report” is a local police report that is officially authored by a police officer who was present at the accident scene.  Regarding the Article 111, its specific verbiage is not strictly noting intoxication, but also that of operating a vehicle in a reckless manner as well.  The DVA conducted their own LOD investigation apparently using the same contested documents as reviewed and used by military leadership in rendering administrative actions.  The applicant and counsel rightfully pointed out that there was no evidence that the Air Force conducted its own LOD investigation into his accident.  In accordance with AFI 36-2910, LOD Determination, an LOD should have been performed on the applicant’s motorcycle accident and injuries.  Given the level of a BAC in the notice of report on an official police authored document and additionally bolstered by medical personnel hearing an admittance from the applicant at the scene, and lastly coupled by numerous mentioning and unchanging results in progressive medical records, it’s hard to consider that such a number was fabricated and remained so throughout many medical and non-medical reports.  Based upon the above, even if a LOD was conducted by the service, the outcome, more likely than not, would have concluded as being not in the LOD as the mishap was proximately caused by the member’s misconduct.       

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS

The Board sent a copy of the advisory opinion to counsel on 28 Jul 21 for comment (Exhibit E), and counsel replied on 22 Sep 21.  In his response, counsel again contended the only evidence of a DUI was an unsigned affidavit.  After the unsigned affidavit was created the applicant was never arrested and never charged with a DUI.  An unsigned affidavit is legally and factually meaningless particularly when it calls for arrest and the applicant was never arrested or charged.  In addition, the applicant also provided a response on 22 and 29 Sep 21 in which he clarifies he is not requesting that the BCMR overturn an LOD performed by the DVA since to his knowledge it is an entirely different organization under different authorities.  Also, he contends the medical advisory opinion describes events of which he has no memory, amongst other contentions. 

The applicant complete responses are at Exhibit F.

FINDINGS AND CONCLUSION

1.  The application was not timely filed.

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

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of HQ AFPC/JA and the AFRBA Medical Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2021-00973 in Executive Session on 13 Oct 21:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 15 Dec 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/JA, dated 17 Jun 21.
Exhibit D:	Advisory Opinion, AFRBA Medical Advisor, dated 19 Jul 21.
Exhibit E:	Notification of Advisories, SAF/MRBC to Counsel, dated 22 Sep 21.
Exhibit E:	Counsel and Applicant Responses, dated 22 Sep 21 and 29 Sep 21.

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