RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBERS:  BC-2005-03361
                                       INDEX CODE:  126.04
      XXXXXXXXXXXXXXXXX                      COUNSEL: NONE

                                             HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  1 June 2008


_________________________________________________________________

APPLICANT REQUESTS THAT:

His Article 15, Uniformed Code of Military Justice (UCMJ),  action,  imposed
on 26 July 2005, be set aside and removed from his record; his  former  rank
of master sergeant be  restored  with  all  back  pay  and  allowances;  the
military debt he incurred from his rank reduction  be  reimbursed;  and  his
Unfavorable Information File (UIF) be removed from his records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His conditions of Panic Disorder with Agoraphobia, Chronic  Post  –Traumatic
Stress Disorder, Personality Disorder, and Depression directly  precipitated
the circumstances  leading  to  his  non-judicial  punishment.   His  mental
breakdown  and  severe  anxiety  was  easily  avoided  with  proper  medical
attention which he repeatedly asked for.  He had  15  ½  years  of  blemish-
free, exemplary military service and job performance prior to  the  incident
that led to his Article 15.

In support of his application, the applicant provides a personal  statement,
and copies  of  the  non-judicial  punishment  documents,  medical  records,
personnel records, Military  Equal  Opportunity  (MEO)  Complaint,  physical
profiles,  Medical  Evaluation  Board  (MEB)  documentation,  and  character
statements.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 29 March 1990, the applicant enlisted in the Regular  Air  Force  at  the
age of 18 in the grade of airman basic (E-1) for a  period  of  four  years.
He was progressively promoted to the rank of master sergeant  (E-7)  with  a
date of rank of 1 May 2005.

The applicant initially presented to the Life Skills Support  Center  (LSSC)
on  25  August  2003  for  complaints  of  anxiety,  dysphoria,  and  panic.
Treatment records from a civilian therapist indicated he also had  fears  of
driving and flying.  Although  the  symptoms  had  been  occurring  for  six
months prior to his LSSC visit,  he  presented  because  they  had  recently
worsened.  At that time social impairment, but not  occupational  impairment
was noted.

On 1 July 2005, his commander  notified  the  applicant  of  his  intent  to
recommend the applicant be  punished  under  Article  15,  UCMJ,  for  being
absent, without authority, from his place of duty on or about 20  June  2005
to on or about 22 June 2005, and for being derelict in  his  performance  of
duties in that he negligently failed to secure about  $1200  in  the  Deputy
Disbursing Officer’s safe, as it was his duty  to  do.   On  26  July  2005,
after consulting with military defense counsel,  the  applicant  waived  his
right  to  demand  trial   by   court-martial   and   accepted   nonjudicial
proceedings.  He submitted a written presentation to  and  made  a  personal
appearance before his commander.  On 23 August 2005, having  considered  the
evidence and the applicant’s  response  to  the  Article  15,  the  imposing
authority  determined  the  applicant  did  commit  the  offenses   alleged.
Punishment consisted of a reprimand, reduction  in  grade  to  the  rank  of
technical sergeant with a new date of rank of 26 July 2005,  and  forfeiture
of $714 pay per month for two months.  That portion of punishment having  to
do with forfeiture of pay was  suspended  through  26  January  2006,  after
which time it was remitted without further action.  On 25 August  2005,  his
commander chose  to  file  the  record  of  nonjudicial  punishment  in  the
applicant’s  Senior  Non-Commissioned  Officer  Selection  Record.    On   7
September 2005, his commander established an  Unfavorable  Information  File
(UIF) on the applicant and placed the Article 15 in the UIF.

On  11  October  2005,  a  Medical  Evaluation  Board  (MEB)  diagnosed  the
applicant with  Panic  Disorder  with  Agoraphobia,  Post  Traumatic  Stress
Disorder, Depression, and Personality  Disorder  which  was  incurred  while
entitled to basic pay.   The  MEB  referred  the  applicant’s  case  to  the
Informal Physical Evaluation Board  (IPEB).   The  IPEB  findings,  dated  4
November 2004, indicate the applicant was found unfit for  duty  because  of
physical disability and recommended he  be  discharged  with  severance  pay
with a disability rating of ten (10) percent.   On  15  November  2005,  the
applicant disagreed with the findings of the  IPEB  and  demanded  a  formal
hearing.  The Formal Physical Evaluation  Board  (FPEB)  findings,  dated  5
January  2006,  indicate  the  applicant  was  found  unfit  for  duty   and
recommended he be placed on the Temporary Disability Retirement List  (TDRL)
with a disability rating of fifty (50) percent.

The applicant was honorably relieved from active duty effective 21  February
2006, and placed on the TDRL effective 22 February 2006 in the  retired  pay
grade of technical sergeant  with  a  compensable  percentage  for  physical
disability of fifty (50) percent.  He served 16  years,  8  months,  and  21
days on active duty.

_________________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical consultant is of  the  opinion  that  while  not  mandating
relief, the totality of evidence of record  including  medical  aspects  are
sufficient to support it.  The BCMR Medical  Consultant  states  this  is  a
complex case that is an  inseparable  mixture  of  bona  fide  anxiety/panic
disorder combined with evidence  of  a  desire  to  remain  in  place  while
continuing  his  Air  Force  career.   Evidence  of  the  record  shows  the
applicant was conflicted about his situation and sent mixed signals  to  his
providers and commanders that  on  balance  led  them  to  conclude  he  was
motivated and capable  of  continuing  his  Air  Force  career  despite  his
anxiety disorder, the symptoms of  which  had  been  largely  unapparent  to
supervisors even though they were aware  he  was  under  treatment  for  the
condition.  The period of  time  when  his  message  shifted  in  the  other
direction was during the few days prior to his crisis, leaving  little  time
to respond.  It is the BCMR Medical consultant’s  opinion  that  the  nature
and severity of the applicant’s  medical  condition  as  documented  in  the
medical records, combined  with  the  facts  of  the  documented  encounters
during the week prior to his conduct  and  his  long  history  of  exemplary
military  duty,  is  sufficient  for  the  Board  to  consider  his  medical
condition  as  significantly  mitigating  in  their  consideration  of   the
applicant’s request.

The BCMR Medical Consultant’s evaluation is at Exhibit C.

AFLOA/JAJM recommends denial of the applicant’s request  to  set  aside  his
Article 15.  JAJM states the applicant  alleges  that  a  nervous  breakdown
caused him to commit the offenses; however, the evidence  does  not  support
his allegations.  On  the  contrary,  the  medical  documentation  does  not
reveal any evidence that the applicant suffered from a mental  disease  that
impaired his ability to comprehend the wrongfulness of his actions  and  the
potential consequences at the time he went absent without leave  (AWOL)  and
left  government  funds  unsecured.   As  a  member  accepting  non-judicial
punishment proceedings, the applicant had the right to have a  hearing  with
the commander, to have a spokesman at  the  hearing,  to  request  witnesses
appear and testify, and to present evidence.  The applicant availed  himself
of all his rights.  After his  commander  found,  by  the  preponderance  of
evidence, that the applicant committed the  offenses  alleged,  he  had  the
right to contest the determination or the  severity  of  the  punishment  by
appealing to the next higher commander.  The appeal authority may set  aside
the punishment, decrease its severity, or deny the appeal.  With the  advise
of counsel, the applicant  appealed  the  action  at  two  separate  levels.
After  considering  all  the   evidence   as   well   as   the   applicant’s
presentations, the appeals were denied.  The applicant presents no  evidence
that he was denied due process or that the proceedings were unfair.

JAJM states the applicant should not prevail  here  absent  clear  error  or
injustice.  Commanders considering non-judicial punishment are  to  consider
the nature of the offense, the record of the service member, the  needs  for
good order and discipline, and the effect of good order  and  discipline  on
the service  member  and  the  service  member’s  record.   The  applicant’s
commander, having applied that standard to the individual  circumstances  of
the applicant’s case,  and  carefully  considering  the  matter  for  almost
twenty days, determined the Article 15 was warranted.  The commander had  to
weigh all the evidence before him to  make  that  decision.   The  commander
ultimately  resolved  the  issue  of  the  alleged  misconduct  against  the
applicant.  There is no evidence in the record  that  the  commander  abused
his discretion of authority.  A commander’s action should only be set  aside
when the evidence demonstrates an error or a clear injustice.  It is  JAJM’s
opinion that the applicant has not presented evidence of a meaningful  error
or injustice in the Article 15 process.

The JAJM evaluation is at Exhibit D.

AFPC/DPSO recommends  denial  of  the  applicant’s  request  to  remove  the
applicant’s UIF.  DPSO states  a  UIF  is  an  official  record  documenting
administrative,  judicial,  or  non-judicial  censures   and   consists   of
mandatory and optional documents.  The applicant is accused of taking  a  3-
day unauthorized absence from his place  of  duty.   He  alleges  a  nervous
breakdown caused him to commit the offenses; however, the evidence does  not
support his claim.   It  is  DPSO’s  opinion  that  the  applicant  has  not
provided substantial evidence showing an error or injustice  caused  by  the
Air Force; therefore; the UIF should be maintained.

The DPSO evaluation is at Exhibit E.

AFPC/DPPPWB  defers  to  the  recommendation  of  AFLOA/JAJM  regarding  the
removal of the applicant’s Article 15.  DPPPWB states JAJM has reviewed  the
applicant’s case and determined that there were no  legal  errors  requiring
corrective action regarding his non-judicial punishment and recommended  the
Board  deny  his  request.   However,  should  the  Board  set   aside   the
applicant’s reduction in rank as requested by the applicant;  his  effective
date of rank to master sergeant was 1 May 2005.

The DPPPWB evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responds that his case is underpinned by poor mental  health
care management, obvious errors, and omissions.  Over  the  18  months  of
treatment for his mental illness (September 2003  –  June  2005),  he  was
assigned ten different providers.  Manning issues  caused  the  base  Life
Skills (LS) to shuttle him between scores of providers, each with  his/her
own approach to his treatment.  He was often  caught  between  conflicting
treatment regimes/diagnoses between LS providers and his off-base  Tricare
providers.  As an example, LS diagnosed him with  a  personality  disorder
yet three off-base providers disagreed.  Over the course of treatment,  LS
never once coordinated treatment or requested information from his  actual
off-base psychiatrist, providers.  Not even  a  phone  call.   The  record
implies that he had a problem  with  his  assignment  to  Korea.   On  the
contrary,  he  was  pleasantly  surprised  and  also  admittedly  somewhat
apprehensive over  his  condition.   He  freely  signed  the  reassignment
paperwork.   The  obvious  question  is,  how  did  he  get  selected  for
reassignment in December 2004 since he was coded on a “4T”  profile  since
the initial onset of anxiety in September 2003 until June 2005?  LS failed
to forward any of his profile  to  the  military  support  squadron,  thus
leaving him open during  the  entire  time  period  for  reassignment  and
deployments.  So the assignment  to  Korea  should  have  never  happened.
Evidence of record clearly shows he was on a “4T” profile for over a year,
yet he got an assignment.  The profile and the subsequent April  2005  MEB
even prevented him from reenlisting.  Furthermore, in May 2005 he did  not
even have enough retainability in the Air Force to be reassigned to Korea.
 The assignment to Korea required a minimum of twelve months retainability
and his date of separation was September 2005.  However, he  freely  chose
to request the retainability, thus opening  himself  up  to  reassignment.
This extension request represents a second indication  of  his  intent  to
take the assignment if possible.  Yet the Air Force  leadership  contended
that his intent was to avoid reassignment.   Their  logic  is/was  without
merit.  The basis used  to  justify  the  unfair  non-judicial  punishment
action is totally unsupported by the actual facts surrounding the case.

The AFLOA/JAJM evaluation is unfair and misinformed in so many  ways.   It
fails to address glaring injustices that directly impact his  case.   This
opinion appears to purposely omit areas that do not support its  position.
JAJM contends there is no legal basis for relief.   He  totally  disagrees
with the opinion based on the substantiating  medical  evidence.   He  has
shown  that  the  medical  evidence   overwhelmingly   substantiates   his
contention that the actions that led to his non-judicial  punishment  were
100% precipitated by mental illness.  A clear  error  and  injustice  took
place from the start in his case.  He gave the Air Force a 100% effort for
15 ½ years, with flawless results.  Yet, he was not given the  benefit  of
doubt even with clearly documented ongoing medical  issues.   The  clearly
mitigating issues were not even entertained and he was given  the  hardest
punishment allowed.  Most saddening to him is that he was not even treated
with the decency that his documented faithful service deserves  -  or  the
care that his illness warranted.  He was discarded and forgotten  like  so
many other soldiers that become medically disabled.  He only asks that his
military record be restored as  a  testimony  to  fairness,  decency,  and
faithful service.

The applicant’s rebuttal, with attachments, is at Exhibit H.

_________________________________________________________________

THE BOARD CONCLUDES 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 injustice to  warrant  partial  relief.   After  a  thorough
review of the evidence of record,  we  find  no  error  in  the  commander’s
decision to impose Article 15  punishment  when  the  applicant  went  AWOL;
however, given the comments provided by the  BCMR  Medical  Consultant,  the
Board has  doubts  whether  the  applicant’s  medical  condition  was  given
appropriate consideration by  the  commander  in  deciding  the  appropriate
level of punishment to impose.  The BCMR  Medical  Consultant  contends  the
nature and severity of the applicant’s medical condition was  a  significant
mitigating factor which led  to  his  behavior  and  subsequent  nonjudicial
punishment.  While the Board concurs  with  the  BCMR  Medical  consultant’s
opinion,  the  applicant  has  failed  to  provide  sufficient  evidence  to
convince the Board the commander’s decision to punish  the  applicant  under
Article 15 was arbitrary or capricious.  We note the  applicant’s  chain  of
command allowed him to be promoted to the grade of master  sergeant.   After
his promotion, it was not unreasonable for the applicant’s chain of  command
to expect him to perform at the higher grade.  However, based on our  review
of the evidence, it appears the applicant’s medical treatment  was  somewhat
disjointed and the commander may not have had all the information he  needed
to make the appropriate decisions regarding the applicant.  It  appears  the
applicant should have been placed  into  the  disability  evaluation  system
earlier, which, possibly, would have avoided the need for  the  Article  15.
Nevertheless, as previously stated, we do not think the  commander’s  action
was  arbitrary  or  capricious.   Given  the  applicant’s  medical   issues,
however, we believe the decision to demote him  under  the  Article  15  may
constitute an injustice, particularly  when  the  general  rules  concerning
retirement or separation under disability are applied.  We note  that  under
disability rules, if an individual holds a line number for  promotion  to  a
higher grade and is either retired or separated for  disability,  it  is  at
the higher grade, unless  the  promotion  was  terminated  for  cause.    We
believe if the applicant had been  placed  into  the  disability  evaluation
system  earlier,  he  may  have  retained  his  promotion  pursuant  to  the
disability rules.  At any rate, given his  overall  exemplary  service,  the
doubt raised regarding his medical issues, and to remove what we believe  is
an injustice, we recommend his records be corrected to the extent  indicated
below.

4.  In reference to the applicant’s request to remove his UIF, we  note  the
establishment of a UIF in this case was mandatory since his  punishment  was
for more than 31 days.  However, in accordance with  Air  Force  Instruction
36-2907, his UIF was removed after two years; therefore, there is  no  basis
for us to act on this portion of the applicant’s request.
5.  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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be corrected to  show  that  the  portion  of  his  nonjudicial
punishment pertaining to reduction in rank under the  provision  of  Article
15, Uniform Code of Military Justice (UCMJ), imposed on  26  July  2005,  be
declared void and expunged from his records,  and  all  rights,  privileges,
property, and pay of which he may have been deprived be restored.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 1 November 2007 under the provisions of AFI 36-2603:

                 Mr. Michael K. Gallogly, Panel Chair
                 Ms. Mary C. Puckett, Member
                 Ms. Debra K. Walker, Member

All  Board  members  voted  to  correct  the  record  as  recommended.   The
following documentary evidence was  considered  in  connection  with  AFBCMR
Docket Number BC-2005-03361:

      Exhibit A.  DD Form 149, dated 21 Oct 05, w/ atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, BCMR Medical Consultant, dtd 30 Nov 06.
      Exhibit D.  Letter, AFLOA/JAJM, dtd 15 Jan 07.
      Exhibit E.  Letter, AFPC/DPSO, dtd 7 Feb 07.
      Exhibit F.  Letter, AFPC/DPPPWB, dtd 23 Feb 07.
      Exhibit G.  Letter, SAF/MRBR, dtd 30 Mar 07.
      Exhibit H.  Applicant’s Letter, dated 22 Apr 07, w/atchs.




                                                   MICHAEL K. GALLOGLY
                                                   Panel Chair


AFBCMR BC-2005-03361




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 XXXXXXXXXXXXXXXXXXXXXX, be corrected to show that the portion
of his nonjudicial punishment pertaining to reduction in rank under the
provision of Article 15, Uniform Code of Military Justice (UCMJ), imposed
on 26 July 2005, be and hereby is, declared void and expunged from his
records, and all rights, privileges, property, and pay of which he may have
been deprived be restored.







  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency