RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  01-03646
            INDEX CODE:  111.00, 126.04
            131.00
            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His nonjudicial punishment under Article  15  of  the  Uniform  Code  of
Military Justice (UCMJ) be removed from his records.

2.  His former rank of technical sergeant (E-6) be restored  with  back  pay
and allowances.

3.  He be promoted to the grade of master sergeant (E-7) with back  pay  and
allowances.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was given an Article 15 for making a false statement which  he  does  not
recall doing.  Two MRIs of his brain have showed atrophy bilaterally in  his
occipital lobes.  He was found to have a cognitive  disorder,  which  causes
source confusion, false positive and intrusion errors, which  surfaced  late
in his career and is clearly the effects of  this  physical  condition  that
resulted in his disciplinary action.

He was an exemplary NCO, hand-picked by his superiors as a  role  model  for
first term  airmen.   He  was  the  man  with  “encyclopedic  knowledge  and
experience of both medical standards and requirements.”   He  was  requested
by  flight  surgeons  and  technicians  alike  for  advice   regarding   the
qualifications and dispositions of  individuals  with  questionable  flying,
special duty, and world wide medical qualifications.  By 1997  or  1998,  he
began to notice some problems with his memory.  Prior to this time,  he  had
managed all his appointments, and meetings in his head. He  began  to  start
using his desk calendar to keep track of  appointments.   He  carried  small
notebooks  in  his  uniform  pocket  so  he   could   compensate   for   his
deteriorating memory.  He would use  them  to  keep  track  of  anything  he
needed to remember.  The more stressed  he  got  about  his  condition,  the
worse it got.  He began to have episodes of being “lost.”  He knew where  he
was but everything around him seemed unfamiliar.

A Neuropsychological Assessment prepared by the Clinical  Neuropsychologist,
reported he had “executive difficulties characterized by  source  confusion,
false positive and intrusion errors.”  This testing  was  done  just  a  few
months after his Article 15.  These  conditions  obviously  did  not  appear
overnight and must be the cause of the incident that led to the Article  15.
 To this day, he does not remember the charges  brought  against  him.   His
Area Defense Counsel urged him to request a trial by  court-martial  because
the Judge Advocate General had not addressed a mandatory area of the  charge
(intent).  He chose to trust his commander would be fair and would at  least
consider the fact that he did not even remember  the  alleged  conversation.
In less than six months, his commander who gave him the Article 15 signed  a
letter to the Medical Evaluation Board indicating that his condition was  so
severe that he should be medically retired.

In support of his request, applicant provides a personal statement;  medical
documents associated with the  MRI  and  the  neuropsychological  assessment
services;  copy  of  his  DD  Form  214;   certificates   and   letters   of
appreciation; documents  associated  with  his  appeal  of  his  nonjudicial
punishment and copies of his performance reports.  His complete  submission,
with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 1 June 2000, the applicant was retired in the  grade  of  staff  sergeant
for length of service.  He was credited 20 years and 3 days of  active  duty
service.   Prior  to  his  retirement,  the  Secretary  of  the  Air   Force
determined he had not served satisfactorily in any higher grade  than  staff
sergeant and that he would not be advanced under  provisions  of  10  U.S.C.
8964.

On 22 July 1999, the applicant’s commander  imposed  nonjudicial  punishment
on the applicant, who was then serving in the grade of  technical  sergeant,
for making a false  official  statement.   The  punishment  consisted  of  a
reduction in grade to staff sergeant and forfeiture  of  $150.00  per  month
for two months.  The portion of the punishment pertaining to  the  reduction
in grade and forfeiture of $150.00  for  1  month  was  suspended  until  21
January 2000, at which time, unless sooner vacated,  it  would  be  remitted
without further action.  He appealed  the  punishment  and  his  appeal  was
denied by a superior commander.  On 29 October 1999, the  commander  vacated
the  suspended  portion  of  the  nonjudicial  punishment   based   on   his
determination that the applicant had made another false  official  statement
and for failure to go to his appointed place of duty on two occasions.   The
foregoing proceedings were reviewed and  found  legally  sufficient  by  the
wing judge advocate on 4 November 1999.

The remaining relevant facts pertaining to this application, extracted  from
the applicant's military medical  records,  are  contained  in  the  letters
prepared by the AFBCMR Medical Consultant at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical Consultant states that the facts  support  the  applicant's
contention that he was suffering from a cognitive disorder,  Post  Traumatic
Stress Disorder (PTSD) and  depression  at  the  time  he  was  accused  and
disciplined  with  an  Article  15  by  his  supervisors  for  making  false
statements and failure to  go.   Additionally,  there  is  evidence  in  the
available medical records that alcohol abuse may have  been  a  contributing
factor but there is no evidence  that  at  the  times  of  his  disciplinary
occurrences in May and October 1999 that alcohol was  ever  suspected  as  a
factor.  The BCMR Medical Consultant states  that  it  is  likely  that  the
documented  cognitive  dysfunction  experienced   by   the   applicant   was
multifactorial in etiology  and  included  PTSD,  depression,  and  possibly
alcohol abuse.  Additionally, the applicant was also subsequently  diagnosed
in January 2001 with severe Obstructive Sleep Apnea, a  condition  that  can
cause excessive daytime drowsiness, cognitive impairment and can  result  in
marked occupational impairment.  It  is  likely  but  not  certain  that  he
suffered from Obstructive Sleep Apnea for several years prior  to  diagnosis
and  may  have  been  a  contributing  factor  to  the  reported   cognitive
impairment in 1999; however, the records reflect  the  primary  problems  as
depression, PTSD and  related  cognitive  disorder.   The  applicant's  duty
performance in 1999 was in stark contrast to his previous record and can  be
concluded to be largely the result of  PTSD,  depression,  and  the  related
cognitive disorder.

The BCMR Medical Consultant is of  the  opinion  that  there  is  sufficient
evidence to conclude that the applicant's medical  condition  was  a  direct
and  substantial  causative  factor  for  the  behavior  that  lead  to  his
nonjudicial punishment.  There is no evidence that this  was  considered  at
that time.  The BCMR Medical Consultant recommends  that  this  evidence  be
strongly considered in  considering  the  applicant's  request  for  setting
aside the Article 15 and restoring him  to  his  highest  grade  held,  E-6.
Although the nonjudicial punishment he received prevented him  from  testing
for promotion to E-7, his cognitive  disorder  at  that  time  rendered  him
noncompetitive for promotion even if he had  not  received  an  Article  15.
The BCMR Medical Consultant evaluation is at Exhibit C.

AFLSA/JAJM reviewed applicant's request and states that a  member  accepting
nonjudicial punishment proceedings may have a hearing  with  the  commander.
The member may have a spokesman at the hearing, may request  that  witnesses
appear and testify, and may present evidence.  The commander  must  consider
any information offered  during  that  hearing  and  must  be  convinced  by
reliable evidence that the member  committed  the  offense  before  imposing
punishment.  Members who wish to contest their commander's determination  or
the severity of the  punishment  imposed  may  appeal  to  the  next  higher
commander.   The appeal authority may set  aside  the  punishment,  decrease
its severity, or deny the appeal.  The applicant's appeal was  unsuccessful.


AFLSA/JAJM  is  not  prepared  to  conclude  that  the  applicant's  medical
condition constituted a legal excuse for the  applicant's  behavior-that  is
the applicant had a severe mental  disease  or  defect  and  was  unable  to
appreciate  the  nature  and  quality  or  the  wrongfulness  of  his  acts.
AFLSA/JAJM does agree that a reasonable commander, if  presented  with  this
medical evidence at the time, would have most likely elected to address  the
applicant's  behavior  outside  of   the   nonjudicial   punishment   forum.
AFLSA/JAJM is satisfied that, based on the information then  available,  the
commander had sufficient basis to impose  both  the  nonjudicial  punishment
action and  then  vacate  the  suspension  for  the  subsequent  misconduct.
AFLSA/JAJM states that the information does not show clear  error;  however,
if the  Board  concludes  that  the  evidence  presented  by  the  applicant
demonstrates  an  injustice,  setting  aside  the  Article  15   action   is
warranted.

The AFLSA/JAJM evaluation is at Exhibit D.

AFPC/DPPRRP reviewed applicant's request and states  that  on  5 July  2000,
the applicant submitted an application for voluntary retirement,  requesting
an effective date of retirement of 1 June 2001.  In accordance with  Section
8961, Title 10, United States Code, the applicant was correctly  retired  in
the grade of SSgt,  which  was  the  grade  he  held  on  the  date  of  his
retirement.  On 11 August 2000, the SAFPC made  the  determination  that  he
did not serve satisfactorily on active duty in any grade higher  than  SSgt.
DPPRRP states that there are no other provisions of  law  that  would  allow
for advancement of enlisted members.  All criteria  of  the  pertinent  laws
have been met in this regard and no error  or  injustices  occurred  in  his
retirement,  grade  determination  or  advancement   action.    The   DPPRRP
evaluation, with attachments, is at Exhibit E.

AFPC/DPPPWB reviewed applicant's  request  and  states  that  based  on  the
applicant's DOR to TSgt of 1 February 1995, the first time he  was  eligible
for promotion consideration to MSgt was cycle 97E7.  He was a nonselect  for
cycles 97, 98 and 99E7.  He was ineligible for promotion  consideration  for
cycle 00E7 due to his reduction to the grade of SSgt  on  29  October  1999.
DPPPWB states that if the Board feels there was an injustice and sets  aside
the  Article  15,  he  would   be   entitled   to   supplemental   promotion
consideration for cycle 00E7.  However, since the applicant never served  in
the grade of MSgt, there is no valid reason  to  authorize  a  promotion  to
this grade.  The DPPPWB evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant specifically responded to the issue  for  promotion  to  the  next
higher grade (E-7).  He states that his long-term memory-those parts of  his
memory, which were learned prior to the onset of his  condition,  are  still
sufficiently intact that he would have been able to test competitively  with
his peers for E-7 in the absence of overwhelming stress,  and  given  proper
treatment for his conditions.  The materials he would  have  tested  on  for
his next stripe, E-7, consist of much of  the  same  materials  he  used  to
construct the on-the-job training course for airmen.  The  Skills  Knowledge
Test section requires recall of information he has  had  superior  knowledge
of for the majority of his Air Force career, a fact that cannot be argued.

He feels that a medical  opinion  stating  that  the  applicant’s  cognitive
disorder “at that time rendered him non-competitive for  promotion  even  if
he had not received the Article 15” does not  take  into  consideration  the
incredible amount of stress  he  was  placed  under,  and  how  this  stress
exacerbates the condition he suffers.   Since  his  retirement,  his  stress
level has decreased geometrically.  He does not  lead  a  stress-free  life,
but he no longer gets lost while  driving  in  familiar  places.   He  still
suffers from global memory loss (most notably  in  his  short-term  memory),
cognitive disorder, and has trouble finding words, but with less  frequency.
 He still has sharp and accurate recall of  virtually  all  of  his  medical
knowledge.  He was an Air Force qualified EMT, but voluntarily  allowed  his
National Registry to lapse due to his PTSD.  It would be a  clear  injustice
to him, a man who gave everything he has to the Air Force  and  the  country
he loves so much to not give him the benefit of the doubt.  If  he  had  not
gotten the Article 15, he wouldn’t have been  under  such  horrible  stress.
If he hadn’t been under such horrible stress, there is  no  way  anyone  can
predict with any certainty whether he  would  or  wouldn’t  have  made  E-7.
After all he has been through, wouldn’t it be in the interest of justice  to
give him the benefit of the doubt?

The applicant’s complete statement is at Exhibit H.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of an error or injustice warranting partial  relief.  With  regard
to the Article 15, we note the assessment of the  BCMR  Medical  Consultant,
who indicates that the applicant was suffering from  a  cognitive  disorder,
Post Traumatic Stress Disorder (PTSD) and depression  at  the  time  he  was
accused and disciplined with an Article 15 for making false  statements  and
failure to go.  After a thorough review of the facts  and  circumstances  of
this case, we are persuaded  that  the  applicant’s  actions  for  which  he
received  the  Article  15  were  the  result  of  the  applicant’s  medical
condition and were  a  direct  and  substantial  causative  factor  for  the
behavior that lead to  his  nonjudicial  punishment.   It  appears,  and  we
believe, that the underlying misconduct, which precipitated the  nonjudicial
punishment, was attributable to his medical ailments.   There  is  no  other
way to explain the abrupt change in his behavior and his sudden tendency  to
act in a manner so contrary to his own  best  interests.   In  view  of  the
above, the applicant’s otherwise outstanding and dedicated service,  and  to
remove an error and an injustice,  we  recommend  that  the  Article  15  be
declared void and he be retired in the grade of technical sergeant.

4.  Notwithstanding the above, we are not inclined  to  recommend  that  the
applicant be promoted to  the  grade  of  master  sergeant.   The  applicant
believes that because of the circumstances surrounding the Article 15  i.e.,
undue stress, he should receive a direct promotion  to  master  sergeant  by
this Board.  We do not agree.  We have reviewed  the  available  record  and
AFPC/DPPPWB evaluation and note that the applicant tested for promotion  for
cycles 97E7, 98E7 and 99E7 and was a nonselect.   Therefore,  based  on  the
available evidence of record,  we  are  not  persuaded  that  he  should  be
promoted to master sergeant.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT,    be corrected to show that:

      a.  The nonjudicial punishment under Article 15,  UCMJ,  initiated  on
12 July 1999 and imposed on 29 October 1999, be declared void  and  expunged
from his records, and all rights, privileges and property of  which  he  may
have been deprived be restored.

      b.  On 1  June  2001,  he  was  retired  in  the  grade  of  technical
sergeant, rather than staff sergeant.

_________________________________________________________________

The following members of the Board considered  Docket  Number  in  Executive
Session on 6 February 2003, under the provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Vice Chair
      Mr. Mike Novel, Member
      Ms. Rita Looney, Member

All members voted to correct the records  are  recommended.   The  following
documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 9 Dec 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 2 Apr 02.
    Exhibit D.  Letter, AFLSA/JAJM, dated 29 Jul 02.
    Exhibit E.  Letter, AFPC/DPPRRP, dated 3 Oct 02 w/atchs.
    Exhibit F.  Letter, AFPC/DPPPWB, dated 14 Aug 02.
    Exhibit G.  Letter, SAF/MRBR, dated 11 Oct 02.
    Exhibit H.  Applicant's Letter, dated 8 Nov 02.




                                   THOMAS S. MARKIEWICZ
                                   Vice Chair

AFBCMR 01-03646




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

      The pertinent military records of the Department of the Air Force
relating to XXXXXXXXXXXXX, be corrected to show that:

            a.   The nonjudicial punishment under Article 15, UCMJ,
initiated on 12 July 1999 and imposed on 29 October 1999, be, and hereby
is, declared void and expunged from his records, and all rights,
privileges, and property of which he may have been deprived be restored.

            b.   On 1 June 2001, he was retired in the grade of technical
sergeant, rather than staff sergeant.






    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency