RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2002-04091
                                       INDEX CODE:  112.10, 134.00
      XXXXXXXXXXXXXXXXXX                COUNSEL: NONE

      XXXXXXXXXX                        HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His Article 15 action imposed on 23 April 1998 be deleted from  his  records
and his reenlistment eligibility (RE) code of 2X be changed  to  enable  him
to enlist in the Reserves.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His medical condition of Sleep Apnea was misdiagnosed  during  his  term  of
service.  As a result  he  received  an  Article  15  punishment  for  being
consistently late for work and a reenlistment code that  prevents  him  from
entering the Guard or Reserves.  Had he been correctly diagnosed with  sleep
apnea, he wouldn’t have received the Article 15 or an RE Code of 2X.   Since
his diagnosis, he has been  using  a  Continuous  Positive  Airway  Pressure
(CPAP) appliance and it has made a dramatic change in  the  quality  of  his
life.  He is now well rested in the morning, full of energy  all  day  long,
and able to perform any task at any time.

In support of his application, the applicant provides copies of his DD  Form
214, Certificate of Release or Discharge From Active Duty; a civilian  sleep
evaluation  dated   13   March   2002;   and   military   sleep   evaluation
documentation.  The applicant’s complete submission,  with  attachments,  is
at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 3 January 1996, the applicant enlisted in the Regular Air  Force  at  the
age of 19 in the grade of airman basic (E-1) for a  period  of  four  years.
He  was  progressively  promoted  to  the  grade  of  senior  airman  (E-4),
effective and with a date of rank  of  3  January  1999.   He  received  two
enlisted performance  reports  (EPRs)  during  the  period  3  January  1996
through 1 September 1998 with promotion recommendations of 4 and 5.

On 16 April 1998, the applicant was  offered  nonjudicial  punishment  under
Article 15, Uniformed Code of Military Justice (UCMJ), for failure to go  at
the time prescribed to his place of duty on 3 and  10  April  1998.   On  21
April 1998, the applicant acknowledged  receipt,  consulted  legal  counsel,
waived  his  right  to  demand  trial  by  court-martial  and  accepted  the
nonjudicial proceedings under Article 15,  UCMJ.   On  23  April  1998,  his
commander imposed punishment of reduction to the grade of airman  (E-2)  and
forfeiture of $250 pay per month for two months,  both  suspended  until  22
October 1998, after which  time  they  would  be  remitted  without  further
action unless sooner vacated; 30 days extra  duty;  and  a  reprimand.   The
applicant chose not to appeal the decision.  On 29  April  1998,  the  judge
advocate found the record to be legally sufficient.  On  18  May  1998,  the
applicant’s punishment of $250 pay per month for two months was vacated  for
dereliction of duty by not having his dormitory room ready for inspection.

An AF Form 418, Selective Reenlistment  Program  Consideration,  shows  that
the applicant was recommended and selected for reenlistment  on  22  October
1998.

The applicant’s service  medical  records  are  not  available  for  review;
however, the medical documentation provided by the  applicant  indicates  he
presented to a military  medical  clinic  on  1  July  1998  complaining  of
problems with  falling  asleep  at  work,  snoring,  and  feeling  un-rested
despite an adequate amount of sleep.  The applicant’s  weight  at  the  time
was 190 pounds, well within Air Force standards  (maximum  allowable  weight
for his height of 72 inches was 205 pounds).   The  applicant  was  referred
for a sleep study to diagnose any sleep disorders.  The  sleep  lab  results
reported the applicant as “substantially normal” but did show some  abnormal
hypopneas  (decreased  breathing)  not   sufficient   enough   to   diagnose
obstructive sleep apnea.  The sleep lab recommended weight  loss,  avoidance
of alcohol, and a follow-up sleep evaluation in six months.  On  2  November
1999, the applicant underwent both a  polysomnogram  and  a  multiple  sleep
latency test.  At the time of the test, he weighed  228  pounds,  23  pounds
over his maximum allowable weight  and  reported  symptoms  consistent  with
obstructive sleep apnea.  He was diagnosed with  “atypical  narcolepsy”  and
prescribed an  effective  medication.   The  sleep  specialist  initiated  a
medical evaluation board to review the applicant’s  case.   After  reviewing
his case, the Board recommended the applicant be returned to duty.

Following completion of his term of service,  the  applicant  was  honorably
discharged effective 13  December  1999  under  the  Holiday  Early  Release
Program with a reentry  code  of  2X  (first-term,  second-term,  or  career
airman considered but not selected  for  reenlistment  under  the  selective
reenlistment program).  He had served 3 years, 11  months  and  11  days  on
active duty.

_________________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical Consultant  is  of  the  opinion  that  no  change  in  the
applicant’s records is warranted.  The BCMR Medical Consultant  states  that
the applicant provided documents from a civilian  sleep  lab  indicating  he
was diagnosed with severe sleep apnea during a  sleep  evaluation  performed
on 13 March 2002, over two years after his discharge.  At the  time  of  his
evaluation, the applicant weighed 240 pounds (35 pounds over his  Air  Force
maximum allowable weight).  The findings of the  three  polysomnograms  with
regard to the severity of sleep apnea correlate with the applicant’s  weight
gain.

The applicant is not medically qualified for reenlistment at this time  base
on his diagnosis of severe obstructive sleep apnea and a  weight  gain  that
exceeds Air Force standards.  Absence of  the  applicant’s  medical  records
makes it impossible to  determine  if  the  primary  reason  for  denial  of
reenlistment was due to problems  related  to  his  sleep  disorder  or  his
overweight condition.

It is the BCMR Medical Consultant’s opinion that actions and disposition  in
this case were proper and equitable reflecting  compliance  with  Air  Force
directives that implement the law.  The BCMR evaluation is at Exhibit C.

AFLSA/JAJM recommends no relief be granted.  JAJM states that the  applicant
has not provided sufficient evidence to  demonstrate  a  material  error  or
injustice.  It is JAJM’s opinion that the  applicant  wants  it  both  ways;
that the Air Force should accept as  fact  his  contention  that  he  had  a
medical condition that prevented him from reporting  to  work  on  time  and
that his Article 15 should therefore be set aside; but that, when  it  comes
to reenlistment, the Air Force should ignore  the  same  medical  condition.
Changing the applicant’s reenlistment code to  ignore  a  medical  condition
would violate Air Force policy and directives.  The JAJM  evaluation  is  at
Exhibit D.

AFPC/DPPAE recommends the applicant’s request be denied.  DPPAE  states  the
RE code of 2X is correct.  The RE code is illustrative  of  the  applicant’s
status at the time of his discharge from the Air Force based on  commander’s
judgment.  The DPPAE evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 15 August 2003, copies of the Air Force  evaluations  were  forwarded  to
the applicant for review and response within 30  days.   As  of  this  date,
this office has received no response.

_________________________________________________________________

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 probable error or injustice.

      a.  Evidence has not been presented which would  lead  us  to  believe
that the nonjudicial punishment, imposed on 23  April  1998,  was  improper.
We find no evidence of error in this case  and  after  thoroughly  reviewing
the documentation provided in support of his appeal, we do  not  believe  he
has suffered an injustice.  In cases of this nature, we are not inclined  to
disturb the judgments of commanding officers  absent  a  strong  showing  of
abuse of discretionary authority.   We  have  no  such  showing  here.   The
evidence indicates that during  the  processing  of  this  Article  15,  the
applicant was offered every right to which he was entitled.   The  applicant
has not provided any evidence showing that the  imposing  commander  or  the
reviewing  authority  abused  their  discretionary   authority,   that   his
substantial rights were violated during the processing of  this  Article  15
punishment, or that the punishment exceeded the maximum  authorized  by  the
UCMJ.  Therefore, we defer to the opinion of legal authority regarding  this
issue and find no evidence of error or injustice.

      b.  The applicant also requests that his RE code  be  changed  to  one
that would allow his enlistment in a Reserve  component.   His  records  are
incomplete; however, from his separation document, it appears that  sometime
during his last year  of  service,  he  was  nonselected  for  reenlistment.
Based on the available documents, we believe it is safe to assume  that  the
nonselection was based on his medical problems or with his  weight  gain  or
both issues.  We believe it must  be  noted  that  the  applicant’s  medical
condition, sleep apnea,  is  medically  disqualifying  for  enlistment.   In
cases of this  nature,  absent  a  showing  of  error  or  injustice  by  an
applicant, regularity is presumed in the conduct  of  governmental  affairs.
Other than his own assertions, the applicant has provided no  evidence  that
would lead us to believe that his RE code is erroneous or unjust.

      c.  In view of the foregoing, we conclude that no  basis  exists  upon
which  to  recommend  favorable  action  on  the  relief  sought   in   this
application.

_________________________________________________________________

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 this application in  Executive
Session on 1 October 2003, under the provisions of AFI 36-2603:

      Mr. Frederick R. Beaman III, Panel Chair
      Mr. Michael K. Gallogly, Member
      Mr. Michael J. Maglio, Member

The following documentary evidence was considered in connection with  AFBCMR
Docket Number BC-2002-04091:

      Exhibit A.  DD Form 149, dated 5 Dec 02, with attachments.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, BCMR Medical Consultant, dtd 1 May 03.
      Exhibit D.  Letter, AFLSA/JAJM, dated 5 Jun 03.
      Exhibit E.  Letter, AFPC/DPPAE, dated 7 Aug 03.
      Exhibit F.  Letter, SAF/MRBR, dated 15 Aug 03.




                                                   FREDERICK R. BEAMAN III
                                                   Panel Chair