RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  01-03675
            INDEX NUMBER:  131.09;111.00
      XXXXXXXXXXX      COUNSEL:  Kirk B. Obear

      XXX-XX-XXXX      HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Officer Performance Report (OPR) rendered on him  for  the  period
 30 Jan 90 through 29 Jan 91 be removed from his personnel record.

He be retroactively promoted to major as if selected by  the  Calendar
Year (CY) 1999A Central Major Selection Board.

He be awarded pay and allowances retroactive to the date that he would
have been promoted to major if selected by  the  CY99A  Central  Major
Selection Board.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In a five-page brief  of  counsel,  with  attachments,  the  applicant
asserts that the contested  OPR  was  a  contributing  factor  to  his
nonselection for promotion to major.  Since the period of the  report,
he has been diagnosed with an obstructive sleep apnea disorder.  If he
had been able to obtain appropriate  treatment  and  therapy  for  his
condition at the time his OPR was written  in  1991,  his  performance
report for that period would  have  been  consistent  with  the  other
reports in his career.

It would be in the interest of justice to  retroactively  promote  him
since the delayed diagnosis of the sleep apnea problem  prevented  him
from  realistically  competing  for  promotion  to  major   when   the
opportunity presented itself.  Based on the balance of the applicant’s
military record, there is  no  other  cause  for  his  failure  to  be
promoted other than  the  contested  OPR,  which  presents  an  unfair
reflection of his otherwise exemplary record.

The applicant’s complete submission, with attachments, is  at  Exhibit
A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty 14 Aug 92.  He had previously served
7 years, 5 months, and 23 days on active duty.  He was diagnosed  with
sleep apnea after a sleep study in Jan 99.  He was considered but  not
selected for promotion to major by the CY99A Central  Major  Selection
Board (8 Mar 99).  A review of the applicant’s OPRs indicates  overall
ratings of “meets standards.”

On 5 May 99, a Medical Evaluation Board  diagnosed  the  applicant  as
having Obstructive Sleep Apnea.  The  applicant  was  referred  to  an
Informal Physical Evaluation Board (IPEB) for final  disposition.   On
11 Jun 99, an IPEB was convened to consider the applicant’s condition.
 The IPEB diagnosed the applicant with the ratable unfitting condition
of Obstructive Sleep Apnea with excessive daytime  somnolence  and  an
unratable condition of  hypertension  associated  with  non-neophrotic
range proteinuria.  The IPEB recommended that the applicant be  placed
on the Temporary Disability Retired  List  (TDRL)  with  a  rating  of
30 percent.   On    15  Jun  99,  the  applicant  concurred  with  the
recommendation of the IPEB.  The applicant  was  placed  on  the  TDRL
effective 8 Sep 99 with a compensable disability rating of 30 percent.
 The applicant was scheduled for a periodic examination on 19 Dec  00.
As a result of his periodic examination, he was referred  back  to  an
IPEB.  On 27 Jan 01,  the  IPEB  diagnosed  the  applicant  as  having
Obstructive Sleep  Apnea,  improving  on  continuous  positive  airway
pressure, and recommended his removal from the  TDRL.   The  applicant
did not concur with the recommended findings of the IPEB and requested
to appear before a  formal  PEB  (FPEB).   On  19  Apr  01,  the  FPEB
diagnosed the applicant as having  Obstructive  Sleep  Apnea,  Chronic
Fatigue.  The FPEB recommended permanent retirement with a compensable
rating of 30 percent.  The applicant concurred with the  findings  and
recommended disposition of the FPEB on 19 Apr 01.  The  applicant  was
removed from the TDRL and permanently retired effective 15 Jul  01  in
the grade of captain.

_________________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical  Consultant  recommends  denial  of  the  applicant’s
complete appeal.  The applicant was diagnosed with  Obstructive  Sleep
Apnea (OSA) in Jan 99, a  condition  that  can  adversely  affect  job
performance, and clearly was adversely affecting his duty  performance
at the time it was diagnosed.  A clear, discrete time for onset of OSA
symptoms severe enough to significantly impair duty performance cannot
be determined with certainty.  There appears to have been a pattern of
milder, intermittent symptoms until severe and persistent ones brought
the applicant to  the  clinic.   The  applicant  gives  a  history  of
excessive daytime drowsiness that predates his military service but in
a   4 Mar 94 clinic appointment he reported “however it has  not  been
problematic since high school until the past three or four months when
he  noticed   an   increase…   (Patient   concerned   about   possible
narcolepsy).”  The  applicant  contends  his  OSA  was  a  significant
contributor to his poor OPR closing Jan 91.  However,  there  were  no
complaints of excessive drowsiness recorded in clinic entries  neither
during that  time,  nor  during  a  periodic  medical  exam  in  1992.
Although headaches may be a symptom, he appeared  to  have  infrequent
headaches and he reported none during the 1992 periodic medical  exam.
The applicant’s subsequent OPRs  lacked  any  phrases  that  might  be
considered negative.  If ongoing OSA was a significant contribution to
the contested OPR, it might be reasonable to  expect  to  see  similar
themes in at least one subsequent OPR at the same duty location.

There is no evidence in the medical records to  suggest  that  medical
personnel should have suspected the applicant’s OSA at the time of the
contested OPR.   In  addition,  had  the  applicant’s  condition  been
diagnosed earlier, was found to interfere with  duty  performance  and
required treatment with continuous positive airway pressure, it  would
have resulted in a Medical Evaluation  Board  (MEB),  leading  to  his
physical disqualification and medical separation from service.

A complete copy of the evaluation is at Exhibit C.

AFPC/DPPPE recommends denial of the applicant’s request  to  void  his
OPR.  Air Force policy is that an OPR is accurate as written  when  it
becomes a matter of record.  A report evaluates performance  during  a
specific period and reflects performance, conduct,  and  potential  at
that time in that position.   Reports  are  not  erroneous  or  unjust
because they are inconsistent with other reports.

The complete evaluation is at Exhibit D.

AFPC/DPPPO recommends denial of the  applicant’s  request  for  direct
promotion to major.  They also concur with the Air  Force  evaluations
above.

The complete evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In  response  to  the  Air  Force  evaluations,  applicant’s   counsel
submitted a 17-page  response  prepared  by  the  applicant.   In  his
submission  the  applicant  provides  answers   to   three   questions
essentially stated as below:

          a.  Why did you not know you had sleep  apnea  at  the  time
your contested OPR was written?  The applicant responds  by  providing
an info sheet on sleep apnea.  He  also  explains  why  his  being  an
unmarried Catholic Priest may have contributed to the delay.

          b.  How was  it  that  your  condition  affected  your  duty
performance during the period of the contested report and not at other
duty locations?  The applicant provides an example of his  performance
of duties as a priest during the period of the contested  report.   He
also states that the effects of sleep apnea are misunderstood (It  was
thought  that  the  sleepiness  and  tiredness  were  jet  lag).   The
applicant notes that not one infraction of being a  priest,  chaplain,
or officer is specified in the contested OPR.

          c.  What was the process by which he sought to discover  the
nature of his problems and what efforts were taken by him to obtain  a
diagnosis?  The applicant discusses the problems he continued to  have
during his assignments after the period of the contested  report.   He
was encouraged by his fellow Catholic priests and parishoners  to  see
his Air Force doctor about his daytime tiredness and  sleepiness.   He
discusses the steps he went through, which eventually led to  a  sleep
study and the determination that he had some type of sleep disorder.

The applicant’s complete submission, with attachments, is  at  Exhibit
G.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was not  timely  filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinions and  recommendations  of  the  Air
Force offices of primary responsibility and adopt their  rationale  as
the basis for our conclusion that  the  applicant  has  not  been  the
victim of an  error  or  injustice.   Therefore,  in  the  absence  of
evidence to the contrary, we find no  compelling  basis  to  recommend
granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not  been
shown  that  a  personal  appearance  with  or  without  counsel  will
materially  add  to  our  understanding  of   the   issues   involved.
Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of material error  or  injustice;  that  the
application was denied without a personal  appearance;  and  that  the
application will only be reconsidered upon  the  submission  of  newly
discovered relevant evidence not considered with this application.

________________________________________________________________
The following members of the Board considered Docket  Number  01-03675
in Executive Session on 4 September 2003, under the provisions of  AFI
36-2603:

      Ms. Patricia D. Vestal, Panel Chair
      Ms. Nancy Wells Drury, Member
      Mr. Robert H. Altman, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 19 Dec 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, BCMR Medical Consultant,
                dated 7 Mar 02.
    Exhibit D.  Memorandum, AFPC/DPPPE, dated 6 Jun 02.
    Exhibit E.  Memorandum, AFPC/DPPPO, dated 6 Jun 02.
    Exhibit F.  Letter, SAF/MRBR, dated 14 Jun 02.
    Exhibit G.  Letter, Applicant’s Counsel, dated 11 Jul 03,
                w/atchs.




                                   PATRICIA D. VESTAL
                                   Panel Chair