RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-00366
		INDEX NUMBER:  131.00

	XXXXXXXXXXXX	COUNSEL:  XXXXX

	XXX-XX-XXXX	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

The letter of Reprimand (LOR) issued to him on 13 Nov 97 for unsatisfactory progress in the Weight Management Program (WMP) be voided and removed from his records.

His promotion to technical sergeant (TSgt) (E-6) be restored and he be retroactively promoted with all backpay and benefits.

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APPLICANT CONTENDS THAT:

Applicant’s counsel submitted a 21-page Brief of Counsel with 17 exhibits to show that the applicant suffered an injustice when his squadron commander failed to completely implement his medical waiver from participation in the Air Force WMP and, subsequently issued him a LOR for unsatisfactory progress in the WMP resulting in the applicant losing his promotion to TSgt.

Despite strong medical evidence showing that the applicant was suffering from Major Depression and Fibromyalgia and was therefore unable to make satisfactory progress in the WMP, the applicant’s Squadron Commander, Group Commander, and Wing Deputy Inspector General failed to take corrective action regarding the Squadron Commander’s decision.

The applicant’s physician issued him a physical profile and medical waiver effective 28 Oct 97 to 17 Mar 98 that was accepted by the applicant’s squadron commander and should have invalidated the applicant’s third unsatisfactory weigh-in that took place on 4 Nov 97.

The applicant’s commander’s decision to accept the profile but to invalidate only the 15 Dec 97 weigh-in can only be considered an arbitrary and capricious act and abuse of their discretion as commander.

Counsel’s complete submission, with exhibits, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant entered active duty on 6 Dec 82.  A resume of his last ten Enlisted Performance Reports follows:

	Closeout Date			Overall Rating

	 13 Feb 90				4
	 31 Dec 90				4
	 31 Dec 91				5
	 31 Dec 92				5
	 19 Jan 94				5
	 19 Jan 95				5
	 19 Jan 96				5
	 19 Jan 97				5
	 20 May 97				5
	 20 May 98				4

According to a copy of the Air Force Form 393, Individual Record for Weight Management and Fitness Improvement Training Programs, provided by the applicant, he was entered into Phase I of the WMP on 8 Sep 95 at a weight of 299.5 pounds and 28% bodyfat, 50.5 pounds over his maximum allowable weight (MAW) (248 pounds) and two percent in excess of his maximum allowable bodyfat (MABF) (24%).  The applicant was required to lose a total of 5 pounds or 1% bodyfat monthly to be considered as making satisfactory progress.  The applicant had the following scheduled weigh-ins with the results indicated:

Date Weighed    Weight/Bodyfat Gain/Loss   Actions Taken

	8 Oct 95           -7.25/-1%			   N/A
	8 Nov 95           +3.00			   Verbal Counseling
	8 Dec 95           -6.00			   N/A
	8 Jan 96           -1.25/-1%			   N/A
	8 Feb 96           +6.25			   Verbal Reprimand
	8 Mar 96           -7.75			   N/A
	8 Apr 96           -7.00			   N/A
	8 May 96           +1.75/-2%			   N/A
	7 Jun 96           +1.00/-1%			   N/A
	8 Jul 96            0.00/-1%			   N/A
	8 Aug 96           -1.00/-2%		        Entered into Phase II
  9 Sep 96           Meets Standards (MS)  N/A
  9 Oct 96           MS			        N/A
  9 Nov 96           MS			        N/A
  9 Dec 96           MS			        N/A
  9 Jan 97           MS			        N/A
  7 Feb 97           MS			        Entered into Probation 
  4 Nov 97           +2% (2% over MABF)	   LOR
 15 Dec 97           -2/+2%		        No Action Taken

On 29 Aug 97, Doctor XXXXX evaluated the applicant and concluded that due to social/mental stressors the applicant should be given a 3 month deferral to adequately adjust and begin to bring down his weight.  On 10 Sep 97, Doctor XXXXX evaluated the applicant again and this time concluded that the applicant did not have a medical/physical problem justifying a waiver, but did qualify as having an adjustment disorder which may have contributed to his lack of attention to WMP.  It was determined that it was a limited condition and that the 3 month deferment should be cancelled and the applicant instead be given an additional 45 days on a 30 day waiver scheduled to end 12 Sep 97.  The release date of the new waiver was 27 Oct 97.

The applicant tested and was selected for promotion to TSgt during the 97E6 cycle (15 Jan-15 Mar 97) with a scheduled pin on of 1 Jan 98.  On 4 Nov 97, the applicant failed his third weight check, received a LOR, and had his promotion to TSgt cancelled.  On 15 Dec 97, the applicant failed his fourth weight check.  The applicant went in to see Doctor XXXXXX the same day to discuss his medical condition, problems with the WMP, and consideration of a further extension of his waiver from the WMP.  Doctor XXXXX concluded that a mental health evaluation, as he and the applicant had previously discussed, was necessary and that based on the results he would make a decision to backdate a profile on the applicant that would start with the end date of the previous waiver, 27 Oct 97.  The applicant was seen by a psychiatrist on 17 Dec 97 and diagnosed with a major depressive episode.  After receiving the results of the evaluation, Doctor XXXXX noted that in his opinion the diagnosis precluded the applicant from adequately attending to issues of WMP, i.e. the applicant needed treatment first and then should address issues of weight management.  Doctor XXXXX then decided to issue the backdated profile.  Based on this profile, the applicant’s commander did not take administrative action against him for the failed 15 Dec 97 weigh-in, but did not withdraw the actions taken for the 4 Nov 97 weigh-in.

The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letters prepared by the appropriate offices of the Air Force at Exhibits C.& E.

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AIR FORCE EVALUATION:

The BCMR Medical Consultant evaluated this application and recommends denial of the applicant’s request.

It has been pointed out by proper authority that a commander has the option of accepting WMP profiles, and records show applicant’s commander took no action for a Dec 97 weigh-in failure after the controversial back-dated profile was issued.  Of great importance to this discussion is the fact that the applicant was able to reach and maintain standards for the year-and-a-half from Feb 96 to Aug 97, even though it was through this period that his mental health issues were occurring.  Application of a retroactive profile is an action fraught with potential problems, as we now see, as the applicant had already managed to fail 2 weigh-ins before he decided he really might need help from the mental health people.  Interestingly, in spite of this help and on-going therapy since, his weight continued to climb to levels of morbid obesity.  Indeed, in the 18 months on the TDRL his weight climbed another 30 pounds as noted in the TDRL evaluation performed on 20 Mar 00.  While having the authority to rescind the LOR issued for the 4 Nov 97 WMP failure, applicant’s commander was completely within her rights to not remove it from his file, and this withheld promotion was appropriate to the circumstances.

The complete evaluation is at Exhibit C.

AFPC/DPPD evaluated this application in regards to the issue of disability processing and recommends denial of the applicant’s request.

The applicant has not submitted any material or documentation to show he was improperly rated or processed under the provisions of military disability laws and policy at the time of his disability retirement.

The complete evaluation, with attachments, is at Exhibit D.

The Air Force Personnel Center Staff Judge Advocate, AFPC/JA, evaluated this application and recommends denial of the applicant’s requests.

The applicant was in a WMP probationary status when he was found to exceed weight standards.  Based on Air Force guidance contained in AFI 40-452, The Weight management Program, dated  7 Nov 94, he was reentered into Phase I of the WMP.  The AFI provides that the unit commander may approve a temporary medical deferral for Phase I participants when recommended by a medical practitioner.  A medical practitioner and the unit commander must approve the deferral.  In the applicant’s case, he received the medical practitioner’s approval through a backdated medical deferral.  However, his commander opted not to approve the deferral.  Since the applicant did not have the approval of both the medical practitioner and his commander, he did not have a valid medical deferral and he incurred the consequential personnel actions.  The commander’s actions were not in violation of the instruction.  There is no evidence that the commander abused her discretion in not accepting a backdated medical deferment.

The complete evaluation is at Exhibit E.

AFPC/DPSFM evaluated this application in regards to the administration of the WMP.  Although the WMP AFI does not mandate commanders to accept medical profiles, they are encouraged to accept them so that in the event the commander later has to administratively demote or separate a member based on failure in the WMP, a case can be presented for legal review that shows the commander had always given the member the benefit of the doubt.  Acceptance of the medical profile also protects commanders in the event their personnel truly have a medical diagnosis that seriously precludes a member from losing weight.  However, it is ultimately the commander’s decision to accept or not accept a profile.  Attempts were made to contact the applicant’s commander to gain more insight on why she chose to not accept the profile for the backdated period, assuming she may have more information that she based her decision on. However, she is no longer in the Air Force.

In this case, the member did have sufficient medical problems to warrant a decision to be medically retired by a Medical Evaluation Board.  Their review of the applicant’s records indicates that the WMP was administered correctly.

The complete evaluation, with attachments, is at Exhibit F.

AFPC/DPPPWB evaluated this case in regards to the applicant’s promotion.  They defer to the recommendations made by AFPC/DPSFM, AFPC/JA, and the BCMR Medical Consultant.

The complete evaluation, with attachments, is at Exhibit G.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel responded to the Air Force evaluations by indicating that the applicant disagrees with the conclusions reached in them.  He also indicated that the applicant rests his case upon his complete application including the Brief of Counsel and its attached exhibits and has no further documentation to present to the Board at this time.

Finally, counsel indicates that AFPC/DPFSM referenced the wrong edition of AFI 40-502 in their evaluation and points out differences in the language between the two related to the requirement to not measure a member while they are in weight status code 5.

The complete evaluation is at Exhibit I.
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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 probable error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  While it does appear that the applicant had medical problems that impacted his ability to meet and maintain weight standards, it also appears that he contributed to the problems he encountered with his medical waiver.  We note that he was given the opportunity to consult with mental health personnel prior to his two unsatisfactory weigh-ins and could have avoided the need for a retroactive waiver.  While we can only speculate as to why the commander chose not to accept the waiver for the applicant’s first failed weigh-in, it is clear that she did not violate Air Force policy in her decision and thus, no error or injustice occurred.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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.

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The following members of the Board considered this application in Executive Session on 12 December 2001, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 25 Jan 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, BCMR Medical Consultant, 
                Dated 3 May 01.
    Exhibit D.  Memorandum, AFPC/DPPD, dated 6 Jun 01, w/atchs.
    Exhibit E.  Memorandum, AFPC/JA, dated 23 Aug 01.
    Exhibit F.  Memorandum, AFPC/DPSFM, dated 11 Oct 01, 
                w/atchs.
    Exhibit G.  Memorandum, AFPC/DPPPWB, dated 17 Oct 01, 
                w/atchs.
    Exhibit H.  Letter, SAF/MIBR, dated 26 Oct 01.
    Exhibit I.  Letter, Applicant’s Counsel, dated 27 Nov 01.

                                   
                                   Panel Chair