RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01162

XXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

1.  His Nonjudicial Punishment (NJP), Article 15 be removed.

2.  His grade to staff sergeant (E-5) be reinstated.

3.  His Personnel Reliability Program (PRP) certification and security clearance be reinstated.

4. His Air Force Specialty Code (AFSC), 3P071 (Security Forces) be reinstated, and his badge and beret be returned.

APPLICANT’S CONTENTIONS

He was diagnosed with narcolepsy to which his leadership was aware.  Even after written submission of a note from his sleep specialist noting "based on the objectively obtained information that was based on practice parameter set forth by the American Academy of sleep medicine, this patient has an unavoidable propensity to fall asleep,” he received an Article 15, was demoted, and was discharged for falling asleep on duty.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a medically retired Air Force senior airman (E-4).

On 13 Jul 16, AF Form 3070, Record of Nonjudicial Punishment Proceedings, indicates the applicant received NJP, Article 15 for dereliction of duty.  He received a reduction in grade to senior airman (E-4), with a new date of rank of 13 Jul 16.  On 18 Jul 16, the applicant appealed the decision in writing but the appeal was denied by his commander on 22 Jul 16.

On 8 Nov 16, AF Form 356, Informal Findings and Recommended Disposition of USAF Physical Evaluation Board (IPEB), indicates the applicant was found unfit due to his medical conditions of jaw and facial pain, and narcolepsy without cataplexy with a combined disability compensation rating of 80 percent with a recommendation of “Permanent Retirement.”  
Dated 3 Jan 17, Special Order ACD-00771, indicates the applicant was permanently retired with compensable percentage for physical disability of 80 percent, effective 17 Feb 17.

On 16 Feb 17, DD Form 214, Certificate of Release or Discharge from Active Duty, reflects the applicant was honorably discharged in the grade of senior airman (E-4) after serving six years and six months of active duty.  He was discharged, with a narrative reason for separation of “Disability, Permanent (Enhanced).”

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

AIR FORCE EVALUATION

AFPC/DP3DW recommends denying the applicant’s request to reinstate his AFSC, 3P071 finding no evidence of an error or injustice of the AFSC disqualification or within the applicant’s DD Form 214.  The applicant had a valid AFSC Disqualification Case dated 22 Dec 15 for removal of AFSC 3P051 to Reporting Identifier 9A500 (Enlisted Airman Temporarily Ineligible for Retraining – Disqualified for Reasons beyond Control).  The applicant was medically disqualified from AFSC 3P051.  For an AFSC reinstatement, the conditions warranting the disqualification would have to be deemed as no longer existing for the applicant. Since the condition was for medical, the medical authorities would have to make the determination if the condition(s) still exist for the applicant.  Furthermore, the highest skill level the applicant held prior to disqualification was a 5-skill level.  Therefore, the DD Form 214 is an accurate reflection of the applicant’s primary specialty of AFSC 3P051 during his active service period.

The complete advisory opinion is at Exhibit C.

DAF/JA recommends denying the applicant’s request to set aside his NJP.  Even if the Board opts to grant relief, such relief should not include any of the applicant’s requests outside of rank restoration. The reinstatement of the applicant’s PRP certification, reinstatement of his security clearance, reinstatement of his Security Forces specialty code, and the return of his badge and beret would pose a grave risk to the Air Force based on his medical condition.  The applicant was retired with an 80 percent disability compensation rating specifically because his narcolepsy made him unfit to be on active duty, so a reinstatement of certifications and statuses that would give him access to weapons and security apparatuses would be inappropriate and dangerous.  

The interpretation of the applicant’s allegations of error is a legal question of whether he committed the charged offense of negligently failing to remain alert and awake while on duty.  A definition of “negligence” applied by military courts and accepted by the Court of Appeals for the Armed Forces, the highest military appeals court, is "an act or failure to act by a person under a duty to use due care which demonstrates a lack of care which a reasonably prudent [emphasis added] person would have used under the same or similar circumstances." See United States v. Blanks, 77 M.J. 239, 241 (2018).  To be sure, the applicant’s submission shows he was diagnosed with narcolepsy prior to the underlying NJP offense which occurred on 6 Jun 16.   On 11 Apr 16, a medical report stated that the applicant’s symptoms began in 2013.  However, this fact can be interpreted one of two ways: 1) since the applicant had a diagnosis, he was not negligent when he slept on duty; or 2) since the applicant had a diagnosis, he should have managed his medical condition and was therefore negligent when he slept on duty.  On the one hand, the commander could have reasonably concluded that the applicant was not negligent due to his medical diagnosis.  On the other hand, the commander also could have reasonably interpreted the “reasonably prudent person” standard to conclude that a reasonably prudent person would have used the appropriate medical strategies to prevent falling asleep while on duty, or use other means to avoid being in a position to be derelict in his duties.  After all, the 19 Sept 16 notes in the medical report state he was doing “substantially better” with his prescribed medicine.  It is outside the scope of this legal review to conduct a de novo review of the facts of the offense.  In other words, this legal review applies the principle of “presumption of regularity” and gives deference to the commander, and therefore only examines whether there existed a reasonable factual basis that supported the commander’s determination.  The interpretation of facts and the needs of the command as the commander knew them at the time are not second-guessed unless they are not grounded in any reasonable interpretation, which is not the case here.  Based on this narrow scope of review, I conclude that such a reasonable factual basis did exist, and consequently the NJP was not erroneous or unjust.  His commander’s conduct could have reasonably interpreted the applicant’s conduct to be negligent, and he could have reasonably determined that the needs of his command required the punishment he administered.  In fact, in the thorough appellate review of the NJP, the commander’s consideration of the needs of the command was noted on more than one occasion.  My review indicates the commander did not abuse his discretion in administering the NJP, finding the applicant committed the offense as alleged, or imposing punishment.  The punishment imposed was within the permissible range for the applicant’s offense.  He has not submitted any new evidence or information that casts doubt on the legal sufficiency of the NJP.  After the advice provided by counsel, he could have demanded court-martial in lieu of NJP and presented his case and any evidence before a jury of his peers, which he opted against.  

The complete advisory opinion is at Exhibit D.

The AFBCMR Medical Advisor recommends denying the application as there is sufficient evidence to support the applicant’s assertion that his medical condition, narcolepsy, could have potentially impacted the events precipitating his NJP.  However, from a medical perspective, if the Board would like to consider granting the applicant’s request for relief, it may wish to note that he continues to be symptomatic from the same conditions that were found to be unfitting for continued military service in 2016 and led to his permanent retirement with an 80 percent disability rating, and that these same conditions limited him from bearing arms, compromised his suitability for the PRP, and severely limited his capacity to perform Security Forces duties.  The applicant was found unfit for military service and permanently retired on the basis of his narcolepsy (and facial pain), which he did not contest.  From a medical perspective, this fact would not support his request for a reinstatement of his AFSC.  Per the memorandum to the BCMR from AFPC/DP3DW, dated 24 Jun 21: “For an AFSC reinstatement, the conditions warranting the disqualification would have to be deemed as no longer existing for the applicant.”  The evidence clearly shows that the “conditions warranting the disqualification,” namely, his narcolepsy, persist to the present day, and the applicant continues to receive medical treatment.  Furthermore, regarding the applicant’s request to reinstate his PRP certification and security clearance, a review of the available records indicated that he was suspended from PRP due to well documented medical concerns surrounding his sleep disturbance and mental health issues.  Per the DoDM 5210.42, Nuclear Weapons Personnel Reliability Program, in effect at the time of the applicant’s retirement, and the subsequent DoDM 5210.42_AFMAN 13-501, Nuclear Weapons Personnel Reliability Program, and DoDI 5210.42, DoD Nuclear Weapons Personnel Reliability Assurance, all pertaining to the Department of Defense Nuclear Weapons Personnel Reliability Assurance, periodic medical evaluations must be conducted to determine a member’s suitability for inclusion and continued participation in the PRP.  “When an individual’s performance may be impaired by medical care or the use of prescribed medication or short-term stress, the certifying official will be notified to decide in the individual needs to be removed from these duties.”  As previously noted, the applicant still continues to suffer from at least some of the same conditions that precipitated his suspension from PRP, so from a medical perspective, there is no reason to alter the recommendation for suspension.  

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 24 Oct 21 for comment (Exhibit F), and the applicant replied on 26 Oct 21.  In his response, the applicant submits further medical evidence which shows his he should not have been placed on a rotating shift due to his medical condition.  This information was provided to his commander but he proceeded to issue the NJP regardless.  The applicant states “It is not my intention to return to active duty, as I agree with the Air Force’s assessment that I am unfit for active duty, I am only requesting that my retirement AFSC be what it was, 3P071, Security Forces, and that I have my rank, badge and beret, and associated loss of pay returned to me, as they were taken due to the NJP.”

The applicant’s complete response is at Exhibit G.

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 recommendations of AFPC/DP3DW, DAF/JA, and the AFBCMR 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-2021-01162 in Executive Session on 23 Nov 21 and 25 Jan 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 10 Jan 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP3DW, w/atchs, dated 24 Jun 21.
Exhibit D:	Advisory Opinion, DAF/JA, dated 9 Jul 21.
Exhibit E:	Advisory Opinion, AFBCMR Medical Advisor, dated 23 Jul 21.
Exhibit F:	Notification of Advisory, SAF/MRBC to Applicant, dated 24 Oct 21.
Exhibit G: Applicant’s Response, w/atchs, dated 26 Oct 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.