IN THE CASE OF:	  

		BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100018858 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests removal of the field grade Article 15 he received on
18 March 2010 and restoration of his rank.

2.  The applicant states he was diagnosed with narcolepsy and he had been prescribed many medications.  His chain of command was informed of his condition and knew that he was trying all medications possible to get well.  He had two issues -- falling asleep during duty hours and staying awake in the mornings to be on time for physical training (PT) at 0600 hours.  He was given an Article 15 for being late too many times.  His JAG (Judge Advocate General's Corps) officer told him to appeal if he was given the maximum punishment.  When he told the sergeant major he wanted to appeal his punishment from the Article 15 he was told the brigade commander could increase his punishment.  He states he knew he did not have sufficient time to collect as much information as he could to help his case so he decided to not appeal.  He instead submitted an application to the Army Board for Correction of Military Records (ABCMR).

3.  The applicant provides copies of a memorandum from the Senior Defense Counsel at Fort Polk, LA, dated 16 June 2010, with six enclosures.

CONSIDERATION OF EVIDENCE:

1.  With prior service in the Army National Guard for a period of 2 years,
11 months, and 5 days, the applicant enlisted in the Regular Army on 27 July 

2004 for a period of 3 years.  He reenlisted on 2 February 2006 and again on
19 October 2009.  He currently holds military occupational specialty 13B (Cannon Crewmember).  He was promoted to the rank/grade of sergeant (SGT)/
E-5 effective 1 October 2008.

2.  On 22 September 2009, the applicant was placed on a temporary physical profile for narcolepsy with an expiration date of 18 December 2009.  His limitations included "not to handle weapons or drive a military motor vehicle."

3.  On 17 November 2009, the applicant was again placed on a temporary physical profile for narcolepsy with an expiration date of 14 February 2010.  However, he now "may operate military vehicle or POV [privately owned vehicle] for up to two hours at a time and able to carry and fire individual assigned weapon."

4.  The applicant was formally counseled on 30 November 2009 and on               8 February, 18 February, and 15 March 2010 for being late for work.

5.  An email from Dr. M------d A. Z---o, dated 15 March 2010, stated that after he had examined and evaluated the applicant, it was his opinion that the applicant's sleep disorder did not affect his ability to arrive at work on time.  The doctor stated if the applicant employed proper sleep hygiene and good sleep habits, he should have no trouble waking up and arriving at work in the mornings.

6.  On 18 March 2010, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for five specifications of failing to go at the time prescribed to his appointed place of duty.  The applicant did not demand trial by court-martial.  His punishment consisted of reduction to E-4; forfeiture of $1,146.00, suspended for 6 months; extra duty for 45 days; and a written reprimand.  He did not appeal his punishment.  The applicant's commander directed the DA Form 2627 be filed in the restricted section of the applicant's official military personnel file (OMPF).

7.  On 16 June 2010, the Senior Defense Counsel at Fort Polk submitted a memorandum on behalf of the applicant.  Counsel stated that after talking to the applicant, reviewing his medical files, and talking to his treating physician,
Dr. Z---o, he believed the root cause of his repeated failure to be on time for work stemmed from narcolepsy.  He contacted the applicant's commander who directed a commander's inquiry before taking action.  The results of that inquiry are not available for the Board's review.

8.  Counsel stated he learned the applicant had received an Article 15 for failing to report for duty on time.  Counsel stated the brigade's trial counsel stated the key piece of evidence was an email received from the applicant's treating physician.  He stated the applicant's platoon sergeant had contacted Dr. Z---o and asked him questions about the applicant's condition.  Dr. Z---o's opinion was that the applicant's sleep disorder did not affect his ability to arrive at work on time.  Counsel was concerned about the email in that he felt the doctor had violated doctor-patient privilege and that it was inappropriate for his platoon sergeant to be asking questions about the applicant's medical condition.

9.  Counsel spoke to Dr. G----d F---t, the consulting physician and a sleep disorder specialist, and discussed the applicant's condition and the email from Dr. Z---o.  Dr. F---t faxed a letter, dated 29 April 2010, to counsel explaining his position.

	a.  Dr. F---t stated the applicant was referred to Dr. Z---o for sleep therapy.
Dr. F---t stated he was informed the applicant had received disciplinary action including a loss of rank because of an inability to get out of bed and report to PT on time on multiple occasions.

	b.  Dr. F---t stated that until his sleep disorder is adequately controlled it would be instructive for him to have regular sleep/work hours and be initiated on Xyrem therapy and be followed to see that Xyrem is efficacious.  He was told he could not drink alcohol and take Xyrem on the same evening.

	c.  Dr. F---t stated they have offered to speak personally with both the applicant's physicians and his JAG.  He stated that based on what he knew about this case it was his feeling that the disciplinary action, at least from a sleep medicine standpoint, should be reconsidered in lieu of his severe sleep disorder. 

10.  After speaking with Dr. F---t, counsel is convinced the applicant's commander relied on a flawed medical opinion gathered under questionable circumstances.

11.  Narcolepsy is a sleep disorder marked by excessive sleepiness during the day or recurring, uncontrollable episodes of sleep during normal waking hours, plus sudden episodes of muscle weakness (cataplexy).  Sometimes sleep paralysis, vivid dreams, and hallucinations while falling asleep or waking up from sleep also occur.  Symptoms usually begin during adolescence or young adulthood and persist throughout life.  Only about 10 percent (%) of people with narcolepsy have all the symptoms.  Most people have only a few.  All have 

excessive daytime sleepiness (EDS).  [Merck Manual, Home Edition for patients and caregivers]

12.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  

	a.  Paragraph 3-4 states that a commander will personally exercise discretion in the nonjudicial punishment process by:

		(1)  evaluating the case to determine whether proceedings under Article 15 should be initiated;

		(2)  determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial; and

		(3)  determining the amount and nature of any punishment, if punishment is appropriate.

	b.  Paragraph 3-36 states that when punishment is imposed under Article 15, UCMJ, all action taken, including notification, acknowledgements, imposition, appeal, action on appeal, or any other action would be recorded on a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ).  The decision to file the original DA Form 2627 in the performance section or the restricted section in the OMPF will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is subject to review by any superior authority.  However, the superior authority cannot direct that an Article 15 be filed in the performance section when the imposing commander directed it to be filed in the restricted section.

	c.  Paragraph 3-28 states that setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  Nonjudicial punishment is “wholly set aside” when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.

	d.  The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed.  When a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set aside action.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the field grade Article 15 he received on
18 March 2010 should be removed from his OMPF and that his rank be restored was carefully considered and found to be without merit.

2.  The defense counsel seemed concerned about a possible violation of doctor-patient privilege when the applicant's command (platoon sergeant) contacted his treating physician in trying to determine whether the applicant's medical condition contributed to his misconduct.  However, the action by the platoon sergeant verifies the commander's efforts to evaluate the applicant's case to determine whether proceedings under Article 15 should be initiated.  Based on the opinion provided by the treating physician, the commander continued with the Article 15 proceedings.

3.  Narcolepsy is defined as a chronic sleep disorder characterized by EDS in which a person experiences extreme fatigue and possibly falls asleep at inappropriate times, such as while at work or at school.

4.  The applicant's treating physician, Dr. Dr. Z---o, specifically stated that after examining and evaluating the applicant, his sleep disorder did not affect his ability to arrive at work on time.  The consulting physician, Dr. F---t, provided an overview of the applicant's condition and felt the applicant's disciplinary action should be reconsidered in lieu of his severe sleep disorder.  However, he stopped short of saying the sleep disorder was the cause of the applicant's not being able to get to work.  Counsel contended the applicant's commander relied on a flawed medical opinion; however, there is no evidence to support this contention.  Therefore, there is an insufficient basis to show an injustice occurred in the reduction in grade imposed on the applicant.

5.  There is no evidence showing the letter from Dr. F---t was submitted to the applicant's commander for consideration of restoration of the applicant's grade.

6.  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, the Article 15 was appropriately filed in the restricted section of the applicant's OMPF.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  __X____  __X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100018858



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ABCMR Record of Proceedings (cont)                                         AR20100018858



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