RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-00688
		COUNSEL:  NONE
		HEARING DESIRED: NO

	 

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APPLICANT REQUESTS THAT:

His records be corrected to reflect the following:

	a. His Article 15 that was rendered on 27 Oct 11 be removed.

	b. His promotion propriety action be reversed and he be 
promoted to the grade of colonel with an effective date of rank 
DOR) back to his original DOR with all pay and allowances with 
interest.

	c. His Officer Performance Reports (OPR) rendered for the 
period ending 7 April 2011, 7 January 2012, and 7 January 2013 
be voided.

	d. His Promotion Recommendation Form (PRF) be amended to 
delete the statement “Do not promote.”

	e. He be given a Time-In-Grade (TIG) waiver for retirement.

	f. He be able to negotiate a financial settlement to partially 
offset both him and his family for enduring suffering, future 
medical costs, loss of income, defamation, etc.

	g. As an alternative to receiving a financial settlement, he 
be provided a statement of opinion indicating that these epic 
failures by multiple organizations and individuals warrant a 
waiver of Sovereign Immunity and the various protections offered 
by the Feres Doctrine to both the government and to individuals 
responsible for this egregious injustice.

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APPLICANT CONTENDS THAT:

In a 24-page brief and an 11-page detailed account of events, 
the applicant provides the following key contentions:

1. He was wrongfully given an Article 15 and removed from the 
colonel’s promotion list due to an alleged assault and drunk and 
disorderly charge.  He plans to prove the following:

	a. The Belgian Federal Police thought that his behavior was 
the result of a medical problem and notified the Air Force.  
Governing instructions were not followed; no one conducted or 
even attempted to conduct a sobriety test, a Breathalyzer test, 
or blood alcohol test.

	c. The evidence will show that the Belgian Federal Police 
claims were not investigated or given any credibility.  It will 
also show that he had been suffering from a type of seizure that 
commonly mimics drunken behavior and results in many false 
arrests.  Further, he was suffering from these seizures in the 
months before, during, and the months after the alleged 
incident.  

2. The alleged incident occurred on 10 Sep 11 at a festival on 
the SHAPE NATO base in Belgium.  He was charged and found guilty 
of being drunk and disorderly and assault that resulted in him 
receiving an Article 15, fined $8,070.00, and removed from the 
colonel promotion list.  

3. He was charged with assault for biting, spitting, 
threatening, and cursing; these actions are rare occurrences 
even in alcohol related incidents.  After being apprehended and 
brought to the police station, it was noted that he was put in a 
cell and passed out in a bed.  However, once again he suddenly 
stopped acting in a belligerent manner.  The exhaustion felt 
after experiencing a seizure is indescribable, which was 
compounded by the struggle.  He experienced loss of bladder 
control at some unknown point, which is a side effect of having 
seizures, along with having speaking or understanding problems, 
experiencing sexual feelings and showing sexual behavior, 
screaming, swearing or crying out.

4. He submitted an Inspector General (IG) complaint stating that 
he remembered absolutely nothing except for a hard to describe 
pulsing sensation as if a strobe light were inside his body.  

5. He has since continued to experience odd health problems 
culminating in a series of documented seizures.  A military 
neurologist reviewed the witness statements from the alleged 
incident and concluded that “at this point is a reasonable 
conclusion” that the incident was a complex partial seizure due 
to the quirky and subtle odd behavior exhibited.  After being 
diagnosed and placed on medication for his complex partial 
seizure, he has not had a seizure in over seven months.  

6. On 11 Sep 12, a full year after the incident, the medical 
community diagnosed him with a form of Diabetes that is known as 
prediabetes, or impaired glucose tolerance.  People who have 
this condition do not normally notice any symptoms.  This type 
of Diabetes can result in someone experiencing that exact same 
symptoms as a drunken individual, frequently with erratic and 
violent behavior that even produces the smell of alcohol on your 
breath.  Only a blood test can differentiate between someone who 
is drunk and someone who is experiencing a diabetic seizure.     

7. He provides descriptions and symptoms from various institutes 
and studies that are related to individuals who have diabetes, 
hypoglycemia, pre-diabetes, seizure disorders, and even 
epilepsy.  

8. A brief summary of those findings, one of which is from the 
National Institute of Health that states, “Diphenhydramine and 
other antihistamines produce biphasic effects on drug 
disposition and lower seizure threshold.”  He had been taking 
diphenhydramine for years and then started suffering a variety 
of odd medical problems to include episodes of confusion and 
slurred speech.  All of those medical problems are specific 
symptoms of a seizure disorder.  

	a. His research shows that seizures can affect those with 
severe prolonged alcohol abuse and occur several days after 
binge drinking.  According to Epilepsy.com, “When alcohol is 
related to seizures, it has been found that it is nearly always 
the state of alcohol withdrawal that aggravates seizures, rather 
than drinking itself … These alcohol withdrawal seizures may 
begin between 6 and 72 hours after you stop drinking.  Studies 
suggest that alcohol withdrawal seizures most often occur 7 or 8 
hours after heavy or prolonged drinking has stopped”.  In his 
case, alcohol had nothing to do with the alleged incident 
because he had roughly the equivalent of a glass of wine in his 
system at the time he lost his memory.  

	b. According to the National Institutes of Health, “kissing is 
a symptom of complex partial seizures, along with “grabbing 
people” and “holding tightly onto things” which explains why he 
repeatedly tried grabbing the unidentified female’s shoulder.  
In addition, the Epilepsy Foundation states, “During this period 
a person is easily frightened, upset and unable to communicate 
effectively and may become belligerent or aggressive, especially 
when approached, as he or she may perceive this as a threat.”  

	c. According to the University of North Carolina School of 
Medicine, “Aggressive behavior … tends to be impulsive, 
unplanned, explosive with a rapid intensification of 
irritability and is frequently disproportionate to the trigger 
stimulus … the aggressive behavior may not appear instrumental, 
goal direct, or involve planning.”  The Stanford Center for 
Epilepsy states,  
“Someone experiencing a complex partial seizure lives in a 
moment-to-moment world.”  This fully explains why he 
instantaneously and permanently loses interest in the female.  

9. He requested a sleep study to be performed in March 2011 
because he developed so many strange medical issues that he 
thought were the result of his sleep problems.  On 12 Aug 11, he 
was diagnosed with Sleep Apnea, but not notified until 26 Sep 
11.  Sleep Apnea is linked to diabetes; people with this 
condition are nine times more likely to have diabetes than those 
without having Sleep Apnea.  He provides a timeline showing that 
he was suffering from increasingly severe blood glucose from 
July 2008 through 26 Dec 12.

10. After the Belgian police contacted the Air Force, an Air 
Force colonel provided the following statement:

“This officer informed me he considered it 
possible there were other issues – environmental, 
medical, or a combination of the two – that may 
better explain the Lt Col B’s behavior.  He 
speculated about a possible heat stress 
connection and questioned whether Lt Col B may 
have unknown/underlying medical conditions that 
contributed to his actions.”

The only proof against him is witnesses’ statements that say he 
was or appeared drunk; however, they offer no elaboration as to 
what specifically caused them to think he was drunk.  These 
witnesses only saw him for a few minutes whereas the police saw 
him for several hours.  He has no memory of any of the events.  
According to his attorney and based on what alcohol he had 
consumed, his blood alcohol content would have been .02-.03, 
which was well below the limits of causing anything remotely 
resembling that type of behavior.  

11. He continues to have unusual medical problems and has had 
several other incidents over the past 12 months with similar 
circumstances, most of which were prior to the alleged incident.  
The first incident, he had a tremendous headache followed by 
slurred speech and disorientation.  The second incident, he 
suddenly turned bright red in the face and became disoriented 
and had difficulty speaking; his colleagues insisted that he go 
to the emergency room.  Both incidents are documented in his 
medical file.  In another incident, he was on the phone, had a 
tremendous headache, and had trouble speaking on the phone; 
however, he did not go to the hospital.  Most recently, he had a 
seizure on-board an international flight where he suffered 
memory loss.  

12. On 22 Apr 12, he submitted an IG complaint relating to this 
matter.  On 17 May 12, the SAF/IG provided their response to his 
allegations stating, “… the 86 AW/CC’s decisions regarding your 
actions and his enforcement of the ARI Policy were neither 
arbitrary nor capricious, did not stifle your due process 
rights, and were vetted through the appropriate channels to 
ensure legal correctness of the actions.”  Although he does not 
agree with the findings, he responds to the IG findings in a 
letter, see page 10 at Exhibit A.  

13. He was unaware of the actions taken by the General Council 
of the Secretary of the Air Force (SAF/GC) behind the scene 
during the proceedings because he did not receive the promotion 
propriety action until after he filed his complaint with the IG.  
According to the promotion propriety action, the AF/JA and 
SAF/GC legal reviews should have been governed by the following 
note:  “Records that are legally sufficient should normally be 
reviewed without comment”.  SAF/GC had concerns about the 
validity of the charges, took unusual measures of asking for 
“additional information” from both 86 AW/CC and 3rd AF/CC, and 
made their recommendation after receiving the new evidence, 
which did not allow him to discredit their findings.  The 
governing instruction states that he should have seen the new 
evidence in order to respond.  In addition, the AF Form 4363, 
Record of Promotion Propriety, is biased because it does not 
have a block to check that the form is “not legally sufficient”; 
the form only has a block to check as “legally sufficient”.

14. The reason he did not submit an appeal to receiving the 
Article 15 because he and his attorney agreed that the lack of 
any discussion in person on the forthcoming promotion coupled 
with the highly unusual language of the Article 15 stating, “The 
stakes could not be any higher,” meant that his promotion was 
still on track.  Additionally, his wife was having a difficult 
time with this matter, so he decided that it was best to accept 
the Article 15 to give their family closure.  He believes if he 
had appealed the Article 15, he would be questioning the 
judgment of the 86 AW/CC and the 3rd AF/CC, making his appeal 
awkward as it appeared the 86 AW/CC was signaling that the 
promotion was still intact.  He requested an extension; however, 
his request was denied.  

15. The statements regarding his behavior of being drunk have no 
credibility as even emergency room personnel can misdiagnose 
this condition without clinical data.  He has had numerous 
documented seizures where no alcohol was involved; therefore, 
there is no basis to suggest the seizure was induced by alcohol 
consumption and he has provided evidence that these seizures are 
triggered by alcohol withdrawal, not consumption.  Further, he 
has been told by the subject matter experts opinion that he has 
not presented a compelling case to prove an error or injustice 
has likely occurred.  He has reviewed thousands of Air Force 
Board for Corrections of Military Records (AFBCMR) cases from 
the reading room and does not recall any case in which the 
accused was in such a comprehensive manner able to address every 
point, every single detail, of the prosecution’s case so 
thoroughly.  He would like to be fully cleared of these false 
charges.  

In support of his request, the applicant provides a copy of 
personal statements, a memorandum for record, a statement from 
his spouse, email communications, several different Articles, 
Medical Reports, the 96 AW/CC Calendar, SAF/IG Response, AF Form 
4363, a memorandum from the 86 AW/CC and 3 AF/CC, a redacted 
Memorandum for Record, Provost Marshal Report, Stars and Stripes 
Article, Kennesaw Hospital Report, and his IG Complaint.



His complete submission, with attachments, is at Exhibit A. 

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STATEMENT OF FACTS:

The applicant retired from the Regular Air Force in the grade of 
lieutenant colonel.

On 4 Nov 11, the applicant’s commander rendered him an Article 
15 for being in: 		

	Violation of Article 95, UCMJ:  On or about 10 Sep 11, he 
resisted being apprehended by a senior non-commissioned officer 
(SNCO) an armed forces police officer.

	Violation of Article 128, UCMJ:  On or about 10 Sep 11, he 
unlawfully grabbed a technical sergeant on the throat with his 
hands and assaulted a corporal, who had military law enforcement 
duties, by biting him on the hand with his teeth and kicked him 
in the chest.

	Violation of Article 134, UCMJ:  On or about 10 Sep 11, he 
wrongfully communicated a threat to a non-commissioned officer, 
to wit, “I will fucking kill you” or words to that effect, which 
conduct was prejudicial to good order and discipline in the 
armed forces.  He was drunk and disorderly, which conduct was of 
a nature that would bring discredit upon the armed forces.

The applicant accepted the Article 15 and waived his right to 
demand trial by court-martial.  On 1 Nov 11, the applicant 
responded to the non-judicial punishment.  On 4 Nov 11, the 86 
AW/CC decided that he had committed the offenses and imposed 
punishment consisting of a forfeiture of  $4,035.00 pay per 
month for 2 months and was reprimanded.  .

AF Form 4363, Record of Promotion Propriety Action, reflects the 
applicant’s name was removed from the colonel’s promotion list 
on 4 Jan 12.  He consulted with a lawyer and submitted a written 
statement on his behalf.  The promotion propriety action was 
deemed legally sufficient by the 3rd AF/JA and on 23 Jan 12, the 
3rd AF/CC recommended his name be removed from the promotion 
list.  The AF/JA and SAF/GC separately reviewed the record and 
found it legally sufficient.  On 12 Apr 12, the Secretary of the 
Air Force (SECAF) approved the removal of the applicant’s name 
from the promotion list.

The applicant filed a complaint with SAF/IGS; however, on 17 May 
12, they determined that the 86 AW/CC’s decisions regarding his 
actions and his enforcement of the Alcohol Related Incident 
(ARI) Policy were neither arbitrary nor capricious, did not 
stifle his due process rights, and were vetted through the 
appropriate channels to ensure legal correctness of the actions.  
SAF/IGS determined there was no credible evidence of misconduct 
on the part of any individual, to include the 86 AW/CC, and 
dismissed his complaint without further action.

The applicant did not file an appeal through the Evaluations 
Reports Appeals Board (ERAB) to have the contested evaluation 
reports removed from his records.

The applicant retired from the Regular Air Force on 1 Jun 14 in 
the grade of lieutenant colonel after serving 23 years, 5 
months, and 18 days on active duty.

The remaining relevant facts pertaining to this application are 
contained in the letters prepared by the appropriate offices of 
the Air Force, which is at Exhibit C, D, E, F, G, and H.

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AIR FORCE EVALUATION:

1. AFLOA/JAJM recommends the Board not take action with regard 
to the military justice matter in this case and defers to the 
appropriate agencies regarding the applicant’s military record.  

2. The applicant alleges injustice both during the investigation 
of his misconduct and the processing of his Article 15.  He 
alleges the information provided by the Belgian police and his 
time in jail was not considered; however, in reading the 
memorandum for record from a colonel who spoke with the Belgian 
authorities, all the Belgian authorities really stated was that 
it might be possible that there were other issues to include 
environment, mental or a combination of the two.  The applicant 
alleges the governing instructions were not followed as a 
sobriety test, Breathalyzer test or blood alcohol test were not 
administered.  Because of his actions, to include assaulting two 
individuals and resisting arrest, the ambulance refused to 
transport the applicant and any test at the time was likely 
impossible.  In addition, there was sufficient evidence (witness 
statements) that made it reasonable to conclude that he was 
drunk and acting under the influence of alcohol.

3. Also not considered or at the very least not given the weight 
it should have been given, as alleged by the applicant, was the 
statement from the medical provider that the applicant’s 
misconduct was a result of a type of seizure that mimics drunken 
behavior.  In fact, when you read the medical provider’s 
statement, it was his opinion that the “combination two 
different antihistamines used, dehydration, and alcohol led to 
the event that occurred.”  All of which were in his control, as 
he knew he was taking antihistamines, knew it was hot and could 
cause dehydration, and he chose to drink alcohol.  Lastly, the 
applicant alleges bias and an unauthorized personal stance on 
perceived alcohol related incidents by his commander who issued 
the Article 15.  However, there is no evidence that the 
applicant’s commander was biased.  Commanders are recommended to 
send an individual to visit Alcohol and Drug Abuse Prevention & 
Treatment (ADAPT) whenever there is an alcohol related incident.  
This is not particular to his commander, and it is the 
responsible action to take to prevent further alcohol related 
incidents.  As the applicant admits he did consume alcohol the 
day of the incident, thus being sent to ADAPT is a reasonable 
action by his commander.  

4. The applicant also alleges the governing instructions 
regarding timeliness and standard of proof were not followed.  
The statute of limitation for non-judicial punishment to be 
issued for certain misconduct is two years; that timeline has 
been met.  There is a metric to aim for, which is to complete 
all non-judicial punishments actions within 30 days with the 
commanders offering non-judicial punishment within 10 days of 
the date of discovery of the offense, but this metric is not 
always met.  In this case, the non-judicial punishment was 
offered on 27 Oct 11, 55 days after discovery of the offense.  
Though this case did not meet the metric, it was well within the 
statute of limitations of two years.  

5. By accepting the non-judicial punishment, the burden of proof 
standard for proving a person is guilty of an offense is much 
lower than the court-martial standard of proof beyond a 
reasonable doubt.  A commander must feel there is enough 
evidence to prove more likely than not the applicant committed 
the offenses he/she was charged with.  In this case, the 
commander looked at all the evidence, to include submissions 
from the applicant, and found he was guilty of the offenses he 
was charged with.  The commander exercised the discretion that 
the applicant granted him when the applicant accepted the 
Article 15 and found non-judicial punishment appropriate in this 
case.  Further, the legal review process showed that the 
commander did not act arbitrarily or capriciously in making his 
decision.  

6. In addition, during the processing of the applicant’s 
promotion propriety action, the non-judicial punishment was 
scrutinized under three separate legal reviews culminating in 
the SAF/GC review; see Attachment 17 of the applicant’s BCMR 
request.  All legal reviews found the non-judicial punishment 
legally sufficient.  Further, in the SAF/GC legal review, it was 
noted that the applicant provided “a plausible explanation for 
his behavior,” but ultimately was “satisfied that the member’s 
evidence was given appropriate consideration” and determined the 
Article 15 was appropriate.  Finally, the applicant does not 
make a compelling argument that the Board should overturn the 
commander’s original non-judicial punishment decision based on 
injustice.  

The complete JAJM evaluation is at Exhibit C.

1. AFPC/DPSID recommends denying the applicant’s request to void 
his contested reports.  In this regard, the applicant has not 
provided compelling evidence to show that the reports were 
unjust or inaccurate.  The applicant contends that his OPR with 
a closeout date of 7 Apr 11, and two subsequent referral OPRs, 
should be removed from his records because it mentions that he 
received an Article 15.  This is an action the applicant 
considers unjust and is appealing to have the report removed.  
He is also appealing to have the second referral OPR removed due 
to failing a fitness assessment.  

2. The applicant received a referral OPR that closed out on 7 
Jan 12 after receiving an Article 15 for being drunk and 
disorderly after finding him guilty of one specification of 
resisting arrest/apprehension, two specifications of assault 
consummated by battery, and one specification of communicating a 
threat.  The applicant believes that the Article 15 action was 
administered to him although he alleges and proposes medical 
theories as to the real underlying factor that caused the 
misconduct.  However, there is no concrete evidence or proof 
that suggests the evaluators were bias or impartial when the 
applicant received his rating.  There is no indication in this 
case that clearly demonstrates an error or an injustice, which 
caused the applicant to detract from the acceptable/minimum Air 
Force standard.  The applicant received an Article 15 for the 
substantiated misconduct and his rating chain appropriately 
chose to comment and document on the underlying wrongdoing, 
which caused the report to be referred to the applicant for 
comments and consideration to the next evaluator.  A final 
review of the contested OPR was accomplished by the additional 
rater and a subsequent agreement by the reviewer/commander 
served as a final “check and balance” in order to ensure the 
report was given a fair consideration in accordance with the 
established intent of the current Officer and Enlisted 
Evaluation System in place.  Therefore, based on the presumed 
sufficiency of the Article 15, they conclude that its mention on 
the contested OPR was proper and in accordance with any 
applicant Air Force policies and procedures.  

3. Additionally, after a careful review and consideration of the 
applicant’s request, it appears that the applicant is simply 
requesting that his 7 Apr 11 report be voided based on our 
presumed belief that the OPR lacked a stratification remark from 
the additional rater.  They can only presume this may be his 
motive as the report is not a referral report nor does it 
contain any derogatory comments because the applicant does not 
state a reason for removing this report.  Therefore, they 
contend that the OPR is accurate and valid as originally 
written.  The supporting documentation provided, or lack 
thereof, does not present any clear or concrete evidence of an 
error or injustice in the preparation or execution of the report 
in question.  

4. Regarding the applicant’s most recent referral OPR with a 
close out date of 7 Jan 13, the applicant does not state any 
valid reason or justification for removing this report from his 
records.  However, in reviewing the applicant’s Air Force 
Fitness Management Assessment (AFFMS) record, they found this 
report became a referral report based on his failed fitness 
assessment which was conducted on 19 Oct 12.  He received a 
composite score of “0” based on his 41.5-inch waist measurement.  
They do not understand why the applicant requested this report 
to be removed as he centers/focuses his contentions on the 
Article 15 he received during the previous reporting period and 
subsequent referral OPR for the alcohol related incident.  
Furthermore, after a review of the applicant’s fitness history, 
it is apparent he was struggling with maintaining a waist 
circumference of 39 inches during the last two years.  Although 
it appears the applicant performed satisfactorily in his 
accomplishments during the reporting period, the failed fitness 
assessment as of the closeout date caused the OPR to be a 
referral.

5. The applicant contends that his PRF rendered for the P0612B 
Central Selection Board was submitted unjustly based on the fact 
that it was linked to the Article 15 he received; however, the 
applicant provided no real explanation or justification for 
removing the contested PRF.  The applicant may not realize that 
the senior rater is the sole proprietor of the subject PRF and 
ultimately bears the responsibility of selecting what to include 
in the PRF, what to leave out, which portions of the officer’s 
career to concentrate on, and which portions to have supported 
by the record.  Moreover, he has provided insufficient evidence 
or proof to warrant removal of the existing P0612B PRF.  They 
believe the applicant was fairly competed and recommended by the 
subject Management Level Review (MLR) with a “DNP” 
recommendation; therefore, they reject the applicant’s assertion 
that he merits removal of the contested PRF.

The complete DPSID evaluation is at Exhibit C.

AFPC/DPSOO recommends denying the applicant’s request to be 
promoted to the grade of colonel.  The applicant contends there 
was a procedural problem in the processing of the propriety 
action in that any additional information provided because of a 
legal review should have been provided to him so that he could 
have committed on the new information; he could have discredited 
the findings.  

	a. It should be noted that a promotion is not a reward for 
past service; however, it is advancement to a position of 
greater responsibility based on the requirements of the Air 
Force and the officer’s future potential.  If an officer has not 
met the requirements for exemplary conduct set forth in 10 
U.S.C. 88583 or is not mentally, physically, morally, or 
professionally qualified to perform the duties in the next 
higher grade, it is in the best interest of the Air Force for 
the proper authority to initiate action to delay promotion, to 
find an officer not qualified for promotion, or to remove the 
officer from a promotion list.

	b. In this case, on  28 Dec 11, the 86 AW/CC initiated action 
to remove the applicant’s name from the CY10C Colonel Line 
promotion list for the reasons stated in the Statement of Facts 
of this Record of Proceedings.  On 23 Jan 12, the 3rd AF/CC 
concurred with the recommendation to remove the applicant’s name 
from the promotion list.  Additionally, at the request of 
SAF/GC, both 86 AW/CC and 3rd AF/CC provided a memorandum that 
gave their rationale for the decision to remove the applicant’s 
name from the promotion list.  Based on the rationale provided, 
SAF/GC was satisfied that the applicant’s evidence was given 
appropriate consideration and that under the rationale of either 
commander, both the Article 15 and removal action were 
appropriate.  Thereafter, the SECAF approved the removal from 
the promotion list.

	c. According to the governing instructions, an officer will be 
given the opportunity to comment on all derogatory information 
added after the officer first reviews and acknowledges the 
initial recommendation.  Since the content of the memorandums 
from the 86/CC and 3rd AF/CC contained only the commanders’ 
justification for their recommendations and deliberative 
processes and did not contain any new derogatory information it 
was not required to be referred to the applicant.  In addition, 
Air Force policy also states that formal rules of evidence do 
not apply to a promotion propriety action.

Finally, all actions were reviewed by Air Force legal offices 
and were found to be legally sufficient to warrant the action 
taken.  

The complete DPSOO evaluation is at Exhibit E.

1. AFPC/DPSOR does not provide a recommendation.  They were 
asked to address the issue of an associated active duty service 
commitment (ADSC) if rank is restored, and if that commitment 
can be waived.  With regard to the ADSC, officers do not incur 
an ADSC when promoted; however, in order to retire in the grade 
of lieutenant colonel or above, 10 U.S.C Section 1370 requires 
the officer to serve a minimum of three years in that grade.  
However, some waivers of time-in-grade are authorized.  10 
U.S.C. states “In order to be eligible for voluntary retirement 
under any provision of this title in a grade above major or 
lieutenant commander, a commissioned officer of the Army, Navy, 
Air Force, or Marine Corps must have served on active duty in 
that grade for not less than three years, except that the 
Secretary of Defense may authorize the Secretary of a military 
department to reduce such period to a period of not less than 
two years.”  

2. The SECAF is currently exercising this waiver authority 
through the FY14 Force Management Program.  Officers in the 
grade of colonel, serving in certain competitive categories, may 
apply to have their time-in-grade waived to two years.  

3. At the time of this advisory opinion, the applicant had a 
retirement pending effective 1 Feb 14.  Since this time, the 
applicant has retired in the grade of lieutenant colonel.  
However, if the Board restored his promotion to the grade of 
colonel, his date of rank would be 1 Feb 12, which would provide 
sufficient time-in-grade to support a waiver under the FY14 
Force Management Program.  There was also an Officer Grade 
Determination (OGD) pending to determine if he would be retired 
in the grade of lieutenant colonel, which he did.

The complete DPSOR evaluation is at Exhibit F.

1. AFPC/JA recommends denying the applicant’s entire application 
stating that throughout the processing of the applicant’s case, 
he has maintained that the misconduct that occurred on 
11 [sic] Sep 11 was the result of various medical problems as 
opposed to the overindulgence of alcohol.  

2. In support of those claims, he has offers numerous articles 
and medical journals describing the effects of diabetes, 
hypoglycemia, pre-diabetes, seizure disorders, and even 
epilepsy, suggesting all or a combination thereof were 
responsible for his misbehavior.  In fact, different medical 
theories have been offered at different points in the 
proceedings.  However, as determined by his commanders, these 
medical maladies have constituted nothing more than speculation, 
as no medical opinion offered by the applicant in his 
submissions diagnosed him with any of those diseases on the date 
of the incident, nor did they conclude that a medical condition 
was responsible for his behavior on that date.  The medical 
records documenting his visits to the military medical 
facilities on 4 Mar 11 and 9 Aug 11 (both visits before the date 
of the misbehavior) and on 26 Sep 11 (after the misconduct), 
contained the entry “Diabetes:  Not Applicable” or “No 
indication.”  In addition, the applicant’s medical appointment 
on 31 Oct 11, discussed alcohol use, he had gone from two drinks 
per week, to five drinks per week, and then to 10 drinks per 
week.  

2. The applicant relies on his latest medical malady defense 
(diabetes or epilepsy) based on a visit to the Landstuhl RMC in 
Germany, on 22 Apr 13, which was one year and a half after the 
incident.  The brain scan and other tests administered to the 
applicant on that date were described in the record of 
“unremarkable examinations.”  Contrary to the inference given by 
the applicant, his examining doctor did not diagnose him as 
having a medically caused seizure on 11 [sic] Sep 11, rather he 
stated, “From the description provided (emphasis added, as the 
description was provided by applicant), it is possible that a 
complex seizure could explain the event a year ago, but they 
have found no evidence of abnormal EEG or brain MRI.”  The 
applicant was released without limitations and with a discussion 
of the possible side effects of his medications.  His 29 May 13 
self-diagnosis stating that he suffered a “textbook complex 
partial seizure” is nothing more than pure speculation and 
conjecture.

3. The applicant reiterates his belief that he was denied a fair 
assessment in his Article 15 punishment and other adverse 
actions taken (removal from 0-6 promotion list, referral OPR, 
“do not promote” PRF) because of his commander’s inelastic 
attitude and policies regarding alcohol related incidents.  
Specifically, he complains that he is the victim of “abuse of 
authority and negligence of epic proportions, caused primarily 
by an illegal policy.”  These allegations were fully 
investigated by SAF/IG, who concluded there was no misconduct on 
the part of any individual in the applicant’s chain of command.  

4. The applicant also alleges that SAF/GC acted improperly in 
its review of his promotion removal action, when they requested 
further explanation of the commanders’ reasons for taking the 
actions they did.  What SAF/GC received in return was an 
explanation of the actions taken based on existing evidence of 
record – not new evidence that required the applicant be given 
an additional opportunity to respond; therefore, there was no 
error committed.

5. Finally, JA opines that the misconduct that formed the basis 
of the adverse actions in this case was the result of behavior 
that was within the applicant’s control and not due to any 
medical diseases or a command structure that was unfair, biased 
or unlawful in its actions.  

The complete JA evaluation is at Exhibit G.

1. The BCMR Medical Consultant recommends denying the 
applicant’s request to remove his Article 15 from his record and 
to restore his name on the colonel’s promotion list.  In this 
respect, the Medical Consultant has reviewed the several 
opinions presented across the spectrum of the legal community, 
and the lone memoranda from a medical provider, dated 31 Oct 11, 
and a neurologist on 22 Apr 13.  The former who has opined that 
the “combination of two different antihistamines used, [his 
presumed state of] dehydration, and alcohol led to the event 
that occurred” and the latter attributing the applicant’s 
behavior to a possible seizure disorder.  

2. The Medical Consultant concedes that there are several 
potential causes of altered human behavior, to include 
psychiatric illness [acute psychosis, certain personality 
disorders], metabolic defects [diabetes, thyrotoxicosis, 
anticholinergic toxicity, heat stroke, hypoxia, nitrogen 
narcosis] or toxicological [illicit drug-related, e.g. PCP, 
certain botanicals, alcohol withdrawal].  What has not been 
presented is the recognized statistical association with alcohol 
intoxication alone with aggressive or combative behavior, by 
inhibiting an individual’s ability to correctly perceive the 
negative consequences of one’s aggression; even without the co-
morbid effects of excessive heat, dehydration, certain 
medications, diabetes, a sleep disturbance, or seizure disorder.  
Among offenses, according to the Bureau of Justice Statistics on 
Alcohol and Crime, from 2002 to 2008, simple assault and 
intimidation were the most common.  That is to say, even in the 
absence of a core body temperature exceeding 104 degrees 
Fahrenheit necessary for heat stroke, diabetic shock, epilepsy, 
or a history of sleep apnea and sleep deprivation, an individual 
could very well have responded in words and physical acts, as 
described in the witness statements of record, when under the 
influence of alcohol.  

2. Unfortunately, the Medical Consultant does not have objective 
clinical data specifically on the applicant on the date of the 
event, upon which to determine whether he suffered from the 
acute effects of either of the proposed medical conditions.  
Nevertheless, the applicant recovered overnight and was released 
on his own recognizance, without the need for urgent medical 
intervention, e.g., intravenous hydration, rapid cooling, anti-
seizure medication, supplemental oxygen, or intravenous or oral 
glucose solution, which would be appropriate intervention for 
one or more of the clinical entities proposed in this case.  It 
is unfortunate that ambulance personnel did not transport the 
applicant to a medical facility to receive a proper evaluation, 
as the Consultant has also witnessed a ruptured cerebral 
aneurysm masquerading as aberrant behavior.  

3. Consequently, while these are all potential causes of 
aberrant or “out of character” behavior, a common feature in 
this case is the consumption of alcoholic drinks prior to the 
onset of the witnessed pattern of behavior; and more acutely, 
after consuming the “national drink” Aquavit.  The Medical 
Consultant opines the evidence does not sufficiently meet the 
burden of proof of error or injustice to warrant the desired 
change of the record.

The complete Medical Consultant evaluation is at Exhibit H.
________________________________________________________________
_

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In a 10-page brief, the applicant reiterates his original 
contentions and makes the following key rebuttal arguments with 
regard to the advisory opinions:

	a. In response to the BCMR Medical Consultant’s advisory 
opinion, he believes the Medical Consultant gave him fair 
consideration.  However, he would like to point out some issues 
with the opinion:

		(1) He does not believe the Medical Consultant 
reviewed his May 2013 Addendum as it is not referenced in his 
comments.  It is now clear that he experienced a complex partial 
seizure on the day in question.  He formally withdraws his 
theories about a diabetic seizure or any other cause because he 
believes it was epileptic or perhaps psychogenic as the 
extremely quirky symptoms of a complex partial seizure can fully 
explain his delusional behavior.  He provides detailed 
information that clearly indicates the alleged incident was 
caused by him suffering from a complex partial seizure.  

		(2) A military neurologist stated, based on the 
evidence, a complex partial seizure was the likely cause of the 
alleged event based on his history of seizures and medical 
problems as evidenced by his statement “it is a reasonable 
conclusion as this time”.  He would like to make sure the 
Medical Consultant realizes the neurologist was specifically 
talking about the alleged event that occurred on 10 Sep 11 and 
not some other seizure.  

		(3) The Medical Consultant quotes the 86 AW/CC 
memorandum to SAF/GCM that discusses the commander found him 
guilty after “careful consideration” and his [applicant] 
theories were “too remote”.  Nevertheless, he has submitted 
clear and concise evidence through the documents found in a 
Freedom of Information Act (FOIA) that the commander’s 
characterization of “careful consideration” constitutes 15 
minutes or less of actual consideration.  He submits that 15 
minutes of consideration is spectacularly preposterous, 
especially given what the Medical Consultant graciously states 
as an individual having “an encyclopedia of accolades”.  

		(4) The Medical Consultant states “Nevertheless, the 
applicant appears to have recovered overnight … without the need 
for … anti-seizure medicine”.  By his count, he has suffered 
from no less than seven seizures to date, several before the 
alleged incident, which at the time were not known to be 
seizures.  However, after experiencing a seizure he generally 
felt confused and had a headache; otherwise it is difficult to 
tell a seizure took place.  His research indicates that the only 
requirement for medical attention occurs during status 
epileptics, which he has never experienced.  According to the 
Epilepsy Foundation, “Although not an actual type of seizure, 
status epileptics is said to exist after 30 minutes of 
continuous seizure activity.  It is a true medical emergency 
requirement immediate treatment or rapid transport to a 
hospital.”

		(5) With regard to lack of findings of epilepsy, 
through his research he found that this is very common.  Sources 
indicate that up to 70 percent of epilepsy cases are never 
evidenced during an electroencephalogram (EEG).  As noted by his 
neurologist’s diagnosis of “transient alteration of awareness”, 
his seizures are transient.  Another very plausible explanation 
is that his seizures are not epileptic but instead psychogenic, 
which would never show up in an EER or Magnetic Resonance 
Imaging (MRI).  

		(6) The Medical Consultant states, “Unfortunately, the 
Medical Consultant does not have objective clinical data on the 
applicant specifically on the date of the event …”; he wishes he 
had clinical data as well and points out that this is through no 
fault of his own that he does not.  The governing instructions 
reflect that in a situation like his, there is a need to perform 
drug and alcohol tests; however, the instructions were not 
followed.  

	b. In response to the AFLOA/JAJM advisory opinion, he 
submits the following:

		(1) They state the “Applicant was afforded the 
opportunity to consult with defense council …” however, he was 
assigned a defense council who was located on a different 
continent and in a different time zone.  He submits this 
resulted in a lack of due process and significantly hindered his 
defense.

		(2) They state the accused believed his blood alcohol 
content was below the legal limit; however, this is inaccurate.  
His attorney conducted the analysis and provided him the blood 
alcohol content figures.  In addition, had the governing 
instructions been followed, he would not be in the position of 
his attorney trying to estimate his blood alcohol content as it 
would have been taken on the spot.

		(3) They do not discuss the rationale of him not 
appealing the Article 15.  This is an important point because 
the lack of an appeal was caused by a series of events that no 
instructions could anticipate, which resulted in lack of due 
process.

		(4) They talk about the semantics of the word 
“possible” from the Belgian Federal Police; however, he was face 
to face with the inspector who thought it was heat related or 
some other cause as he recovered so quickly and was acting so 
strangely.  Further, the word “possible” is used in a different 
connotation in the French speaking part of Belgium.  It does not 
mean “conceivable”.  The terms “impossible” and “possible” are 
used far more frequently than in the American vernacular and are 
not used to express either end of the spectrum.  The Belgian 
Federal Police officer was not allowed to render a medical 
opinion.  However, the officer told him that he did anyway; 
however, it was in a somewhat vague style presumably to protect 
him from police criticism.  Why would this officer bother to 
contact anyone if not to relay his serious doubts about the 
case?  The semantics of the “possible” would not be in question 
had someone taken five minutes out of their day to call the 
officer and investigate his claims.

		(5) The JAJM advisory opinion is 180 degrees out of 
sync with the Commander’s Handbook, the governing instructions, 
and the Manual for Courts-Martial (MCM) as they do not state or 
suggest “the burden of proof standard for proving a person 
guilty is much lower than the court-martial standard …” and “… a 
commander must feel there is enough evidence to prove more 
likely than not the applicant committed the offenses”.  They 
also note, “There is no evidence the applicant’s commander was 
biased …” He submits volumes of data on the commander’s bias and 
would like the Board to review his IG complaint, his appeal, his 
addendum to the appeal, and answers to other questions in his 
rebuttal.  In addition, he did not raise any questions with 
regard to ADAPT program; however, he notes that the 86 AW/CC did 
not refer him to ADAPT.

		(7) They state, “The legal review process showed that 
the commander did not act arbitrarily or capriciously in his 
decision”.  However, legal reviewers have no insight regarding 
any temporal dimension of any case they review.  Therefore, they 
are not informed nor qualified to render a legal opinion on the 
capricious actions of a commander with respect to bias, 
prejudice, or the appropriate time that should have passed 
before the commander makes a decision.  In addition, the legal 
reviewers would have no way of knowing that the 86 AW/CC and the 
86 AW/JA decided to schedule 4 Nov 11 for both his oral hearing 
and the verdict on his case before he had submitted any written 
matters relating to his defense.  This is improper, capricious 
in that it does not follow the law or proper procedure, and has 
resulted in violations of protections offered him by the United 
States Constitution.  SAF/GCM did introduce the temporal element 
by requesting information regarding “appropriate consideration”, 
and the 86 AW/CC responded in a less than truthful manner, which 
overlaps with his arguments regarding the AFPC/DPSOO advisory 
opinion that narrowly interprets AFI 36-2501, Officer 
Promotions, regarding the introduction of new evidence without 
the accused being able to respond.  The legal reviewer is now 
reviewing a new aspect to the case, which was not already 
included in the documentation that the legal reviewer prior to 
him reviewed.  In addition, the SECAF did not this information 
as evidenced by it not being included on the promotion propriety 
form and it was not given to him when the entire package was 
finalized, all of which results in a serious lack of due 
process.

		(8) The legal reviews were incestuous.  In this 
regard, the 3rd AF/JA rendered a “legal review” on his promotion 
propriety action; however, since his promotion propriety action 
was solely based on a single event, an event which 3rd AF/JA had 
already legally reviewed, he was not afforded a fresh set of 
eyes to conduct the initial legal review.  The same individual 
that legally reviewed his Article 15 also signed off as having 
legally reviewed his promotion propriety action.  

		(9) The legal reviews of his Article 15 are also 
fishy, somehow he ended up with two different “page 2” from AF 
Form 3070C’s, Record of Non-Judicial Punishment Proceedings.  
One of the pages has 3rd AF/JA signing off on 21 Nov 11; however, 
blocks 11, 12, and 13 had not been filled in.  The other “page 
2” has blocks 11, 12, and 13 with no signature in block 14.  How 
is this possible?  How did the 3rd AF/JA reviewer sign the 
document without seeing blocks 11, 12, and 13 signed off?  Block 
12 is the servicing Staff Judge Advocate (SJA) legal review.  
The GCMCA SJA administrative supervisory review should not have 
taken place without evidence of a servicing SJA legal review.  
Neither the 3rd AF/CC nor any legal reviewers saw his oral 
statements for the Article 15 hearing, which played a role in 
both the propriety action and the Article 15.  The oral 
statements were exceptionally important as the 86 AW/CC denied 
his request for an extension; he believes that due to 
negligence, his written response was hastily thrown together 
thereby needing significant oral explanation.  

		(10) SAF/GCM had doubts about the Article 15 itself 
and incidental to that, the resulting promotion propriety 
action.  The JA community is quick to point out that 
disciplinary and propriety actions are separate.  However, 
SAF/GCM clearly linked the two actions together as the promotion 
propriety action was only appropriate if further information 
from the 86 AW/CC and 3rd AF/CC was able to show the Article 15 
was appropriate.  In essence, in this situation, or for that 
matter any situation where a promotion propriety action takes 
place based on a single questionable disciplinary action, there 
is essentially no other recourse than to find the action 
“legally sufficient” as  otherwise it would open up an 
unprecedented situation governed by no Air Force Instruction.

		(11) The SECAF decided on his case without reviewing 
all documented facts that were available to the reviewers 
because AF Form 4364, Record of Promotion Delay Early 
Termination and – or Date of Rank Adjustment, did not include 
the official correspondence to SAF/GCM from both the 86 AW/CC 
and the 3rd AF/CC.  Further, AFBCMR Docket Number BC-2012-05168 
(see Exhibit B), the JA community points out the SECAF reviewed 
an additional memorandum added and attached the file because of 
SAF/GCM inquiries; however, he was not afforded that 
opportunity, which constitutes major lack of due process.  
Additionally, the SAF/GCM memorandum was not listed as an 
attachment to the promotion propriety for either.  The SECAF may 
have made a decision on the matter without seeing this 
memorandum as well.

	c. In response to the AFPC/DPSID advisory opinion, he 
submits the following:  

		(1) They offer no opinion on his guilt or innocence to 
the charges in question nor will they, as they are not the 
subject matter expert in that regard.  If his appeal is 
successful, the OPRs that have been written as a “lieutenant 
colonel” will need to be voided because his rank would have been 
“colonel”.  

		(2) With regard to his fitness assessments, he is 
unclear as to how he was struggling with any aspect of the 
fitness test prior to the alleged incident as evidenced by 
21 straight years without a single failure.

	d. In response to the AFPC/DPSOR advisory opinion, he 
submits the following:  

		With regard to “The applicant’s case is currently in 
coordination at the MAJCOM”, he underwent an OGD process whereby 
he would be retired either as a lieutenant colonel or as major.  
The Air Force negligently took 9 months to render a decision.  
To complicate matters, he was given a second assignment to Scott 
AFB despite him turning down the first assignment.  This put him 
in an ambiguous situation of not knowing which action took 
precedence.  Even worse, the Lieutenant Colonel Selective Early 
Retirement Board (SERB) came into play.  The cutoff to 
voluntarily retire under the SERB was 15 Nov 13; however, after 
receiving a “do not retain” Retention Recommendation Form (RRF) 
he found out that he was not eligible for the SERB.  The OGD was 
signed on 12 Nov 13 and presented to him on 15 Nov 13, notifying 
him that he would be retired in the grade of lieutenant colonel.  

	e. In response to the AFPC/DPSOO advisory opinion, he 
submits the following:  

		(1) He disagrees with the findings of AFBCMR Docket 
Number BC-2012-05168 with regard to the interpretation of the 
governing instructions.  There is no question that had he seen 
these memoranda and been able to respond he could have most 
likely stopped this injustice.  They state, “SAF/GC was 
satisfied that the applicant’s evidence was given appropriate 
consideration and that under the rationale of either commander, 
both the Article 15 and the removal action were appropriate” and 
‘Since the content of the memorandums for the 86 AW/CC and 3 
AF/CC contained only the commanders’ justification for their 
recommendations and deliberative process and did not contain any 
new derogatory information it was not required to be referred to 
the applicant”.  He vehemently disagrees with this finding.  
There was not a single reference in the documentation associated 
with this case regarding what constituted either commander’s 
deliberative process.  One of his major complaints associated 
with this case is the lack of a deliberative process thereby 
denying him due process.  

		(2) He is stuck in a catch-22 situation for 
complaining about a lack of due process with regard to the non-
deliberative handling of the case.  Both AFLOA/JAJM and DPSOO 
may well be entrenched in their positions that he had no right 
to question the memoranda to SAF/GCM and cannot question whether 
this was arbitrary or capricious as it was approved through 
legal reviews.  SAF/GCM only recommended his removal after he 
concluded “… the applicant’s evidence was given appropriate 
consideration …” It is easily apparent that my case was given 
nothing resembling “careful consideration.”  

His complete submission, with attachments, is at Exhibit J.

________________________________________________________________
_

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3. Insufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice warranting 
corrective action.  The applicant's contentions regarding due 
process are duly noted.  However, after thoroughly reviewing the 
evidence of record, to include the detailed legal and medical 
opinions, we are not persuaded that he has been the victim of an 
error or injustice.  Evidence has not been presented which would 
lead us to believe that there were procedural errors resulting 
in an injustice or improprieties in the processing of his 
promotion propriety action or that he was denied rights to which 
he was entitled.  Therefore, we adopt the opinions and 
recommendations of the Air Force offices of primary 
responsibility and the BCMR Medical Advisor as the basis for our 
determination that he has not been the victim of an error or 
injustice.  In the absence of persuasive evidence to the 
contrary, we find no compelling basis upon which to recommend 
granting the relief sought in this application.  Additionally, 
we took note of the applicant’s request for a financial 
settlement or, as an alternative, a waiver of Sovereign Immunity 
and various other protections that are offered by the Feres 
Doctrine.  However, the Board is not able to consider these 
requests as they are outside the Board’s purview.
________________________________________________________________
_

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-2013-00688 in Executive Session on 13 May 14, under 
the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 Jan 13, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 28 Mar 13.
    Exhibit D.  Letter, AFPC/DPSID, dated 13 May 13.
    Exhibit E.  Letter, AFPC/DPSOO, dated 27 Jun 13.
    Exhibit F.  Letter, AFPC/DPSOR, dated 13 Aug 13.
    Exhibit G.  Letter, AFPC/JA, dated 27 Aug 13.
    Exhibit H.  Letter, BCMR Medical Consultant, dated 14 Nov 13.
    Exhibit I.  Letter, SAF/MRBR, dated 15 Nov 13.
    Exhibit J.  Letter, Applicant, dated 21 Jan 14, w/atchs.




                                   
                                   Panel Chair