RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-03765

XXXXXXXXX	COUNSEL: XXXXXX
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.  His 4 Dec 20 non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), and all associated documents be removed from his military personnel record.

2.  His rank be restored to airman (E-2) and he receive all associated back pay and allowances.  

APPLICANT’S CONTENTIONS

He twice received NJP under Article 15 for sleeping on post; however, prior to the incidents he expressed issues with staying awake and sought medical treatment after receiving the first Article 15.  The medical treatment initially revealed a suspected diagnosis of hypersomnia, a medical condition that makes it difficult to stay awake.  Despite, the fact that his leadership became aware of his medical condition during the proceedings of the second Article 15, he was still issued NJP. Furthermore, after he was issued the second Article 15, he was given assurances that he would be moved to a different shift, but his schedule was never changed. 

He has since gone through further sleep studies from Banner Health University and the Balboa Naval Medical Center and has now been officially diagnosed with “Circadian rhythm sleep disorder of shift work type,” and “Insufficient sleep syndrome.”  Even though both his medical conditions explain why he was falling asleep at work, his commander maintained the Article 15s and has since recommended him for an administrative discharge.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman (E-2).  

On 28 Sep 20, the applicant received NJP, pursuant to Article 15 in violation of UCMJ Article 92, Failure to obey order or regulation.  Specifically,  on or about 18 Sep 20, the applicant came into work while under the influence of alcohol for which he was given a reprimand and reduced in rank from airman first class (E-3) to airman (E-2) with a new date of rank of 28 Sep 20.

On 4 Dec 20, the applicant received NJP pursuant to Article 15 in violation of the UCMJ Article  95, Offenses by sentinel or lookout.  Specifically, on or about 9 Nov 20, while posted as a sentinel, he was found sleeping at his post for which he was given a reprimand and was reduced again in rank from airman (E-2) to airman basic (E-1) with a new date of rank of 4 Dec 20.

On 3 Jun 21, the applicant received NJP pursuant to Article 15 in violation of the UCMJ Article 95, Offenses by sentinel or lookout.  Specifically, on or about 15 Apr 21, while being posted as a sentinel, he was found sleeping upon his post for which he was given a reprimand and 5 days extra duty.

On 14 Jun 21, the applicant prepared and submitted a DD Form 149, Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552, making the request to remove the above specified NJP action and to restore his rank.  

On 10 Aug 21, the applicant was notified by his commander that he was being recommended for an Under Honorable Conditions (General) discharge.  The reason for this action included the aforementioned Article 15s; two Letters of Counseling (LOCs) for being absent from his place of duty; and one Letter of Reprimand (LOR) for being absent from his place of duty and for being so intoxicated the night prior to his absence that he had to be taken to the hospital.  

On 13 Aug 21, the AFBCMR Board Analysis Division informed the applicant of the closing of his case since his referenced documentation was not part of his official military record.  Moreover, the provided NJP action requested to be removed from his record did not appear to be finalized.  He was advised to return his application with the requested correction and/or supporting documentation to have his case reopen and the processing resume.    

On 6 Dec 21, the applicant prepared and submitted an additional DD Form 149, making the same request to remove the above specified NJP action and to restore his rank.  

On 20 Jan 22, according to the applicant’s DD 214, Certificate of Release of Discharge from Active Duty, he was discharged from the Air Force with a character of service as “Under Honorable Conditions-(General)” and issued a narrative reason for separations as “Misconduct (Minor Infractions)”.

On 21 Jan 22, the applicant submitted a memorandum from a Pulmonary Critical Care Program Director, dated 11 Jan 22, indicating the applicant’s care and treatment for circadian rhythm sleep disorder and the difficulty in determining how his condition may impact him on any given day.  

On 2 Feb 22, the applicant’s case dated 14 Jun 21 was closed since it presented the same request annotated on his 6 Dec 21 application.    

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibit C and Exhibit D.
 
AIR FORCE EVALUATION

SAF/MRBC Medical Advisor finds insufficient evidence to support the applicant’s request.   

The applicant appears to propose a solid connection between his falling asleep in class as well as on duty to an adverse medical condition.  He sought medical assistance for ‘sleep issues’ after reporting increased stress at work and school with added stressors of being ‘washed back’ and receiving multiple adverse reprimands.  He received three varying non-specific diagnosis over a 10 month period, Feb 20 through Nov 20.  The diagnosis’s of both a sleep disorder and that of hypersomnia (excessively tired) were both identified as either ‘unspecified’ or ‘not otherwise specified’ due to not finding a legitimate medical reason for said fatigue.

To ensure all possible medical conditions were considered and to rule out a central sleeping disorder that would be unfitting for continued military service, the Medical Standards Directory (MSD) required a sleep study be performed at a certified DoD sleep laboratory.  The DoD sleep study revealed no adverse sleep conditions that would be disqualifying for continued military service and documented a final diagnosis of ‘snoring.”  As such, this condition is neither unfitting nor disqualifying for continued military service and his claim of the two sleep disorders are without merit and provide no basis for overturning the Article 15.  

The complete advisory opinion is at Exhibit C.

DAF/JA recommends denying the application.  The record contains insufficient evidence or allegation of error or injustice tending to undermine the applicant’s NJP action or imposed punishment.  There are a total of three NJPs on the applicant’s record: 28 Sep 20 for coming to work under the influence of alcohol; 9 Nov 20 for being found asleep posted as an armed sentinel; and 15 Apr 21 where he was again found asleep while on post as an armed sentinel.  For the first NJP action, he was punished with a reduction in rank from E-3 to E-2 and given a reprimand.  He received a further reduction in rank from E-2 to E-1 and a reprimand for his 2nd NJP action.  Lastly, for the 3rd NJP action, he received five days of extra duty and a reprimand.

The applicant states that subsequent to the 9 Nov 20 incident resulting in the 4 Dec 20 Article 15, he received a sleep disorder of hypersomnia.  He also states that his commander did not speak with his medical provider prior to administering punishment.

The applicant’s factual allegations to support his allegations of error or injustice are unverified.  Specifically, there was no unfitting/disqualifying medical diagnosis either before or after the NJP (4 Dec 20) in question; furthermore his commander did not disregard this alleged diagnosis as the applicant’s commander, who issued the NJP, was contacted and stated that he did speak with the applicant’s physician multiple times.  Additionally his commander stated that after the second NJP for sleeping on duty, the applicant had “further alcohol issues and was not returned to flight.”

The applicant has not submitted any new evidence or information that casts doubt on the legal sufficiency of the NJP.  The commander did not abuse his discretion in administering the NJP.  The punishment imposed was within the permissible range for the applicant’s offense.  Furthermore, after being advised by counsel, the applicant could have demanded court-martial in lieu of NJP, but waived his right to do so.  Therefore we find no basis to set aside the applicant’s NJP.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinions to the applicant on 13 Jan 22 for comment (Exhibit E), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was 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 rationales and recommendations of both the SAF/MRBC Medical Advisor and DAF/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Specifically, the Board notes that the applicant’s medical condition was neither unfitting nor disqualifying for continued military service and his claim of the two sleep disorders are without merit and provide no basis for overturning the NJP.  As such, the Board finds the evidence presented did not demonstrate an error or injustice warranting removal of the NJP or that the NJP was unjust or inaccurate as written.  Furthermore, the Board finds the NJP action was within the commander’s authority.  Therefore, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, 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-2021-03765 in Executive Session on 15 Mar 22:

, 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 6 Dec 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, SAF/MRBC Medical Advisor, dated 10 Jan 22.
Exhibit D:	Advisory Opinion, DAF/JA, dated 13 Jan 22.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 13 Jan 22.

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.