RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03225
            INDEX CODE:  129.04
            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect that he was retired in the grade of  E-5
and he be entitled to all back pay and benefits thereof.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was unjustly demoted from E-5 to E-4 due to  impairments  that  were  the
result of a brain injury that had not been identified.

Applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant, a prior service enlistee, reenlisted in the Regular Air Force  on
11 Jan 82.  He was progressively promoted to the  grade  of  staff  sergeant
having assumed that grade effective and with a date of rank  of  1  Aug  86.
Applicant was retired under the  Temporary  Early  Retirement  Authority  on
1 Oct 94.  He served 16 years, 8 months, and 20 days on active duty.

The applicant received nonjudicial  punishments  under  Article  15  of  the
Uniformed Code  of  Military  Justice  in  September  1981  for  failing  to
properly retrieve classified material, with a  suspended  reduction  to  the
grade of airman first class and forfeiture of $100 pay; in October 1988  for
drunk driving at Clark AB, PI, with a suspended reduction to  the  grade  of
sergeant and forfeiture of $350 pay per month for 2  months;  in  June  1992
for two instances of failing to report to work, with a  forfeiture  of  $100
pay and 30 days extra duty; in April 1993  for  drunk  driving  at  Anderson
AFB, Guam, with a  suspended  reduction  to  the  grade  of  senior  airman,
forfeiture of $150 pay per month for 2 months and 30 days  extra  duty;  and
in November 1993 for being drunk and  disorderly,  using  indecent  language
and assault, with a reduction in grade to senior airman and  30  days  extra
duty.

On 2 Mar 94, the Secretary of  the  Air  Force  Personnel  Council  (SAF/PC)
determined that he served  satisfactorily  in  the  higher  grade  of  staff
sergeant within the meaning  of  Title  10  USC  and  directed  that  he  be
advanced to that grade on the retired list on 10 Jan 08.

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AIR FORCE EVALUATION:

The BCMR Medical  Consultant  recommends  denial.   The  Medical  Consultant
states on 29  Jul  87,  while  performing  his  duties  with  communications
equipment,  lightning  struck  a  grounded  antenna.   He  was  using  radio
equipment and received an  electric  shock  associated  with  the  lightning
strike.   However,  there  is  no  evidence  of   loss   of   consciousness,
respiratory arrest, cardiac arrest, burns, or brain  injury.   Brain  injury
sufficient to  cause  occupational  impairment  manifests  immediately,  not
years later.  Thorough neurologic evaluation three years after the  incident
failed to find any evidence of brain injury, a conclusion confirmed  by  two
Veterans Affairs neurologists in 2001.   Furthermore,  performance  reports,
including  his  final  report,  do  not  reflect   evidence   of   cognitive
difficulties in  the  performance  of  his  duty.   The  Medical  Consultant
evaluation is at Exhibit C.

AFLSA/JAJM recommends denial.  JAJM states the underlying  action  to  grant
his request would be to set aside his November 1993 nonjudicial  punishment.
 JAJM states the application is  untimely  and  should  be  denied  on  that
basis.  His argument is without merit.   The  available  evidence  does  not
support his contentions regarding "impairments" causing him to be drunk  and
disorderly, to use indecent  language,  and  to  assault  someone.   He  was
struck by lightning in 1987 and the  misconduct  in  question  occurred  six
years later.  A thorough evaluation of his fitness for duty  was  undertaken
and resulted in a determination that he was fit for  duty  and  no  concerns
were noted.  Unless it is shown that the commander's finding  regarding  the
Article 15 was arbitrary or capricious, it  should  not  be  disturbed.   No
such evidence exists and in fact, the applicant  had  numerous  disciplinary
problems prior to the misconduct in question all of which,  except  for  the
1981 dereliction of duty occurred after his accident.  During the times  the
misconduct occurred, he continued to have excellent performance at work  and
no other documented episodes of losing control.  This is  inconsistent  with
a conclusion that impairment from a lightning strike caused his  misconduct.
 The DVA notes the he has a long  history  of  "polysubstance  abuse."   The
basis for his request is insufficient to warrant setting aside  the  Article
15 action and does not demonstrate an inequitable  basis  for  relief.   The
JAJM evaluation is at Exhibit D.

AFPC/DPPPWB recommends denial.  DPPPWB  states  the  demotion  action  taken
against the applicant was procedurally correct and there is no  evidence  of
any irregularities or that his case was mishandled.  The  DPPPWB  evaluation
is at Exhibit E.

AFPC/DPPRRP recommends denial.  DPPRRP states he was  previously  considered
by SAF/PC for advancement to the grade of staff
sergeant and he will be advanced to that grade effective  10  Jan  08.   The
DPPRRP evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the  applicant  on  24
Dec 03 for review and comment 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 error or injustice that would warrant  corrective  action.   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
been the victim of an injustice.  The Board notes that  in  accordance  with
the decision of the Secretary  of  the  Air  Force  Personnel  Council,  the
applicant's grade will be advanced to staff sergeant  on  the  retired  list
for pay purposes on 10  January  2008.   With  respect  to  his  nonjudicial
punishments, which resulted in his reduction  in  grade,  evidence  has  not
been presented which would lead us to believe that the  punishments  imposed
on the applicant were improper or unjust.  His contentions are  duly  noted;
however, we are not  persuaded  by  his  assertions  that  his  disciplinary
problems were the result of a medical condition, which impaired his  ability
to distinguish between right and wrong.   The  opinions  of  the  Air  Force
offices of primary responsibility appear to be  based  on  the  evidence  of
record and have not been refuted by  the  applicant.   Therefore,  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.   In
the absence of persuasive evidence to the contrary, we find  no  basis  upon
which to favorably consider 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 AFBCMR Docket Number  BC-2003-
03225 in Executive Session on 31 MAR 04, under the  provisions  of  AFI  36-
2603:

      Mr. Thomas S. Markiewicz, Chair
      Ms. Leslie E. Abbott, Member
      Ms. Renee M. Collier, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 24 Apr 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 9 Sep 03.
    Exhibit D.  Letter AFLSA/JAJM, dated 14 Nov 03.
    Exhibit E.  Letter AFPC/DPPPWB, 2 Dec 03.
    Exhibit F.  AFPC/DPPRRP, 16 Dec 03, w/atchs.
    Exhibit G.  Letter, SAF/MRBR, dated 24 Dec 03.




                                   THOMAS S. MARKIEWICZ
                                   Chair