RECORD OF PROCEEDINGS 
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-03054
		
 			COUNSEL: NONE 

			HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

1.	The vacation action dated 16 November 2009, resulting in a 
demotion from E-6 to E-5 be set aside, and the difference in pay 
from July 2009 to present be restored.

2.	He be reimbursed $2819.56 due to his reduction in grade from 
E-6 to E-5 (July through November).

________________________________________________________________

APPLICANT CONTENDS THAT:

On 20 July 2009, he was served an Article 15 as a result of 
multiple instances of being late for work.  His punishment was 
forfeiture of one half month of pay and a suspended demotion for 
6 months.

In the aftermath of the Article 15, he requested a referral to 
the sleep clinic.  He was diagnosed with Moderate Obstructive 
Sleep Apnea.  He believes this diagnosis could have been a 
mitigating factor had he known of this medical condition prior 
to, or during the Article 15 process - mitigating enough to have 
prevented his demotion.  There are numerous side effects of this 
condition to include hypertension, difficulty waking up and 
excessive daytime sleepiness.  

He was also diagnosed with Attention Deficit Hyperactivity 
Disorder (ADHD) in March 2007.  He was prescribed medication to 
assist with managing the disorder and began seeing a 
psychiatrist in May 2010.  This is significant as sleep apnea 
can further aggravate ADHD.  The combinations of these two 
conditions have significantly impaired his ability to function 
at his fullest potential.  

He believes his case deserves a second review because this 
information was not available at the time of the Article 15.  He 
was recently notified that he will undergo a Medical Evaluation 
Board (MEB) and cannot be promoted.  He respectfully requests 
the vacation action from November 2009 be eliminated and his 
rank to E-6 be restored.

In support of his appeal, the applicant provides AF Form 3070, 
Record of Nonjudicial Punishment, AF Form 366, Record of 
Proceedings of Vacation of Suspended Nonjudicial Punishment, e-
mail correspondence, debt letter and other supporting 
documentation.

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

________________________________________________________________

STATEMENT OF FACTS:

The applicant is a staff sergeant in the active Air National 
Guard. 

On 13 July 2009, he was notified of his commander’s intent to 
impose nonjudicial punishment under Article 15 for violation of 
Article 86, of the Uniform Code of Military Justice (UCMJ).  
Specifically, the applicant was accused of failing to go to the 
appointed place of duty, at the prescribed time without 
authority on three occasions.  On 16 July 2009, the applicant 
noted on the AF Form 3070 that he consulted counsel, waived his 
right to trial by court-martial and submitted matters on his 
behalf.  The applicant did not request a personal appearance 
before the commander.  

On 20 July 2009, the commander found that he committed one or 
more of the offenses as alleged and imposed punishment of a 
suspended reduction to the grade of staff sergeant, forfeiture 
of $1475.00 pay per month for one month and a reprimand.  The 
applicant did not appeal the punishment.

On 16 November 2009, the applicant’s commander notified him that 
he was considering vacating the suspended punishment.  On 
20 November 2009, the applicant waived his right to counsel, 
provided a written presentation and requested a personal 
appearance before the commander. On 24 November 2009, the 
commander found the applicant had violated Article 86, UCMJ, on 
1 October 2009 by failing to go to his appointed place of duty 
at the prescribed time (without authority) and vacated the 
suspension in rank.  His new date of rank to staff sergeant was 
20 July 2009.

________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  Between on or about 23 June and 
26 June 2009, the applicant was alleged to have failed to go to 
his appointed place of duty on three occasions, in violation of 
Article 86, UCMJ.  On 16 July 2009, the applicant waived his 
right to court-martial and accepted non-judicial punishment 
proceedings.  He attached a written presentation, but did not 
make a personal statement before the commander.  After 
considering the evidence in the case and matters submitted by 
the applicant, the commander concluded the applicant committed 
the offense and imposed punishment consisting of suspended 
reduction in rank from technical sergeant to staff sergeant, 
forfeiture of $1475.00 per month for one month and a reprimand.  
The applicant did not appeal the decision.

On or about 1 October 2009, the applicant was alleged to have 
again violated Article 86, UCMJ, by failing to go to his 
appointed place of duty.  As a result, on 16 November 2009, his 
commander notified the applicant that he was considering 
vacating the suspended punishment.  On 20 November 2009, the 
applicant waived his right to counsel, provided a written 
presentation and requested a personal appearance before the 
commander.  After considering the evidence in this case, the 
commander concluded the applicant committed the offense and 
vacated the suspension in rank.  

Ordinarily, applicants must file an application within three 
years after the error or injustice was discovered, or with due 
diligence, should have been discovered.  The Article 15 and 
vacation action occurred in 2009.  The sleep study and diagnosis 
took place in the spring of 2010; therefore, the application is 
untimely.

Nonjudicial punishment is authorized by Article 15 of the UCMJ 
and governed by the Manual for Courts-Martial (MCM) and AFI 51-
202, Nonjudicial Punishment.  This procedure allows commanders 
to dispose of certain offenses without trial by court-martial 
unless the service member objects.  A commander considering a 
case for disposition under Article 15 exercises personal 
discretion in evaluating the case, both, as to whether non-
judicial punishment is appropriate, and if so, as to the nature 
and amount of punishment.  

Vacation of a previously suspended demotion is likewise 
permitted by Article 15, UCMJ and governed by the MCM.  This 
procedure permits commanders to vacate a punishment that was 
previously suspended under nonjudicial punishment proceedings if 
the member violates any conditions of the suspension or commits 
an offense chargeable under the UCMJ.  The member has the right 
to be notified of the process, to review the evidence, consult 
an attorney and to submit matters in extenuation.  

In this case, the applicant admits the underlying conduct, but 
seeks relief based on alleged medical issues.  Even assuming all 
of the information provided by the applicant is accurate, there 
is not sufficient evidence to demonstrate these issues rose to 
the level of being a disability that would relieve the applicant 
of his duty adhere to a basic military obligation of showing up 
for work on time.  If such a condition exists, the Medical 
Evaluation Board is the organization best suited to determine 
the type of disability it represents and whether such a 
disability makes the applicant unsuited to continue with 
military service.

The evidence is sufficient for the commander to have found the 
applicant committed the offenses.  The commander was in the best 
position to evaluate all of the evidence before making a 
decision and the Board should not overturn that decision 
lightly.

The complete AFLOA/JAJM evaluation is at Exhibit C.

NGB/SGPA recommends denial.  On 20 July 2009, the applicant 
received an Article 15 after multiple instances of being late 
for work.  The applicant had received numerous counseling 
statements beginning 2006 from various supervisors regarding 
being late to work before receiving the Article 15.  He 
acknowledged he was working a part time job in the evening for 
several years.  While there is no proof that the part time job 
in the evening had any effect on the applicant’s tardiness, it 
is important to note.  As a part of the Article 15, the 
applicant agreed not to be late for work anymore.  He was again 
late on 1 October 2009 and was unable to be reached by his 
supervisor.  He received notification of 24 November 209 that he 
was demoted from E-6 to E-5 due to his continued tardiness.   

The applicant was diagnosed with Moderate Obstructive Sleep 
Apnea in April 2010.  He states his newly diagnosed condition is 
the cause of his tardiness.  He also states he was diagnosed 
with ADHD in 2007, which has exasperated from his Obstructive 
Sleep Apnea.  Had he known about his condition, he could have 
received treatment.

Obstructive Sleep Apnea can cause symptoms that include daytime 
sleepiness and difficulty waking up.  The condition itself does 
not preclude the member from performing his duty or arriving on 
time.  The applicant underwent a Medical Evaluation Board to 
determine his fitness for duty and was found unfit by the IPEB 
on 13 December 2013.

The complete NGB/SGPA evaluation is at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the Air Force advisory stating his 
intent in submitting this request was not to imply that he was 
not late in those instances, rather to ask the Boards 
consideration based on the issue of fairness.

After being diagnosed with sleep apnea, he was approached by 
several people asking if he would submit this request.  In 
addition, during leadership training, this exact scenario was 
discussed.  While most of his classmates felt a person being 
late should be written up, his instructor stated that the first 
step is to rule out any medical conditions.  He has had a 
lifelong struggle with sleep and timeliness.  He did not make 
the connection that there may be a chance he had a sleep 
disorder.  He does not fit the normal stereotype of someone that 
would exhibit the symptoms:  overweight, large neck etc.  

He also asks the Boards consideration on another issue.  When 
his suspension was vacated, he believes the effective date of 
the vacation was updated incorrectly.  According to the 
regulation, the demotion action’s effective date is the date of 
the vacation, while the date of rank is the date of the original 
Article 15.  In his case, the vacation action occurred on 
24 November 2009, yet it was updated for 20 July 2009 subjecting 
him to a debt for overpayment of rank. 

The applicant’s complete response, with attachments, is at 
Exhibit F. 

________________________________________________________________

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.  We took notice 
of the applicant's complete submission and the available 
evidence of record in judging the merits of the case; however, 
we find insufficient evidence that the applicant was denied any 
rights entitled to under the Article 15 and subsequent vacation 
action processes.  We do not find the commander abused his 
discretionary authority, during either process, or that his 
actions were arbitrary or capricious.

4.  Notwithstanding the above determination, we believe some 
relief is warranted.  We note the applicant’s date of rank (DOR) 
and demotion effective dates were updated as 24 November 2009.  
Although the DOR is correct, the effective date was not 
correctly established in accordance with AFI 51-202, para 5.15.  
As such, while we find no error or injustice with the 
commander’s actions in administering the Article 15, an error 
did occur in the applicant’s demotion effective date.  
Therefore, we recommend the applicant’s record be corrected to 
the extent indicated below.

________________________________________________________________



THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air 
Force relating to APPLICANT, be corrected to show that he was 
demoted to the grade of staff sergeant (E-5) with a date of rank 
of 20 July 2009 and a promotion effective date of 24 November 
2009, rather than 20 July 2009.

________________________________________________________________

The following members of the Board considered AFBCMR Docket 
Number BC-2013-03054 in Executive Session on 10 April 2014, 
under the provisions of AFI 36-2603:

   
All members voted to correct the records, as recommended.  The 
following documentary pertaining evidence to AFBCMR Docket 
Number BC-2013-03054 was considered:

	Exhibit A.	DD Form 149, dated 5 Jun 13, w/atchs.
	Exhibit B.      Letter, Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFLOA/JAJM, dated 19 Aug 13.
	Exhibit D.	Letter, NGB/SGPA, dated 16 Sep 13.
	Exhibit E.	Letter, SAF/MRBR, dated 15 Oct 13.
	Exhibit F.	Letter, Applicant’s Response, dated 14 Nov 13.