RECORD OF PROCEEDINGS 
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2003-01988
		INDEX NUMBER: 100.00

	XXXXXXX	COUNSEL:  NONE

	XXXXXXX	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.	The Enlisted Performance Reports (EPRs) closing 13 November 2000, 13 November 2001, and 13 November 2002, be removed from his records.

2.	His rank of staff sergeant (E-5) be retroactively reinstated effective 30 October 2001, with all back pay and allowances.

3.	He receive supplemental promotion consideration for cycle 01E6 using his 1 February 2001 cycle 01E6 test scores.

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THE APPLICANT CONTENDS THAT:

His former rank should be reinstated because his demotion was solely based on his alleged failures in the Weight and Body Fat Measurement Program (WBFMP) and his medical history clearly demonstrates that his medical condition inhibited his ability to control his weight and successfully complete the WBFMP.  He should never have been medically cleared for participation in the WBFMP.

In support of the appeal, applicant submits statements from his commander, command chief, flight superintendent, and defense counsel.  The commander concurs with the requested relief and states that had the applicant’s medical condition been known from the beginning, he would not have been punished under the Weight Management Program (WMP).

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

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STATEMENT OF FACTS:

The applicant was identified as over body fat on 23 March 1999.  He was placed in the WBFMP on 28 April 1999.  He received a Letter of Counseling (LOC) on 6 August 1999, for his first failure in the WBFMP.  He received a Letter of Reprimand (LOR) for his second failure on 5 November 1999, which was later invalidated by his commander.  He received an LOR for his second failure on 29 August 2000 and received an LOR and was placed on a Control Roster for his third failure 6 March 2001.  His commander placed the LOR in an Unfavorable Information File (UIF).  He was demoted to the grade of senior airman (E-4) on 30 October 2001, for his fourth WBFMP failure on 2 July 2001.

On 5 December 2003, the Secretary of the Air Force Personnel Council determined applicant satisfactorily served in the grade of staff sergeant (E-5) and approved his advancement to that grade on 1 April 2014.

Applicant retired in the grade of senior airman (E-4) for length of service on 1 April 2004.  He completed 20 years of active service.  

Applicant’s performance profile since 1992 follows:

             PERIOD ENDING               OVERALL RATING

               15 Mar 93                       4
               12 Mar 94                       4
               12 Jun 95                       5
               12 Jun 96                       4
               12 Dec 97                       3
               13 Nov 98                       4
               13 Nov 99 (referral)            4
             * 13 Nov 00                       4
             * 13 Nov 01 (referral)            1
             * 13 Nov 02                       3
               13 Nov 03                       5

* Contested EPRs

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AIR FORCE EVALUATIONS:

The BCMR Medical Consultant states, in part, that applicant’s various medical conditions were not cause for his inability to lose weight or participate in regular moderate exercise, with the exception of post operative recovery from June to August 2002 and April to July 2003. Since December 1999, his history of thyroid disease was not a factor in his progress on the WBFMP.  However, there were a large number of medical documents issued by a variety of physicians while the applicant was on the WBFMP, which sent mixed messages and apparently created confusion in the minds of the applicant, his chain of command, and staff responsible for administrating the program, with regard to when he was, and when he was not medically cleared for WBFMP participation.  In view of this, the BCMR Medical Consultant recommends the appropriate offices review the administrative aspects of the case.

The BCMR Medical Consultant evaluation is at Exhibit C.

AFPC/DPPPE recommends the applicant’s request to void the EPRs be denied and states, in part, that applicant’s contentions are not validated by the documentation provided.  The reports are correct and accurate.  None of the physical profiles issued during the rating periods state that he could not weigh in or be placed on the WBFMP.

The AFPC/DPPPE evaluation is at Exhibit D.

AFPC/DPPPWB states, in part, that individuals who are making unsatisfactory progress on the WBFMP or receive a referral report are automatically ineligible for promotion.  Although applicant tested for cycle 01E6 his test was never scored and was destroyed after two years.

The AFPC/DPPPWB evaluation is at Exhibit E.

AFPC/JA recommends the application be denied and states, in part, that regardless of the mixed messages and confusion, the evidence shows the applicant was properly enrolled in the WBFMP.  Several months of good progress on the WBFMP program suggest his medical condition did not prevent him from losing weight.  The commander should not have considered one of the four occasions of unsatisfactory progress since the applicant had stopped taking his thyroid medication which would result in his weight gain.  Even excluding this failure, the three remaining progress failures which were cited in the notification letter support the demotion action.

The AFPC/JA evaluation is at Exhibit F.

AFPC/DPPSFPC recommends the application be denied and states, in part, that applicant’s commander was within his authority in applying administrative actions as a result of the WBFMP failures.  Although there are several administrative errors within the WBFMP case file they do not invalidate the case file.  The unit commander removed a weigh-in based on a legal review and the medical authority tailored his WMP to accommodate his medical history.  The applicant has shown that he can lose and maintain weight loss.

The AFPC/DPPSFPC evaluation is at Exhibit G.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Complete copies of the Air Force evaluations were forwarded to the applicant on 21 May 2004 for review and response within 30 days.  However, as of this date, this office has received no response.

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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 error or injustice to warrant voiding the contested EPRs.  The applicant has provided no evidence to indicate the contested reports are inaccurate assessments of his performance during the contested periods.  We note that to effectively challenge an EPR, it is important to hear from all the evaluators on the contested report—not only for support, but also for clarification/explanation.  The statements from applicant’s commander and command chief master sergeant are noted; however, they do not indicate how the reports are in error or unjust.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the applicant’s request for voidance of the contested reports.  Although there appears to have been administrative errors within applicant’s WBFMP case file, they do not invalidate the case file.  Furthermore, the unit commander removed a weigh-in based on a legal review and his WMP was tailored by the medical authority to accommodate his medical history.  With the exception of his post operative recovery, which was well after his WBFMP failures occurred, it appears that his medical condition did not inhibit his ability to successfully complete the WBFMP.  

4.  Notwithstanding the above, we believe sufficient relevant evidence has been presented to demonstrate the existence of an injustice to warrant reinstating applicant’s former rank of staff sergeant.  Based on the supporting statement from his commander, and noting his years of service, we believe the LOC and LORs applicant received were sufficient punishment.  In view of this, and noting the legal review of the demotion action recommended applicant be given one more chance, we believe the interest of justice can best be served by reinstating his former grade of staff sergeant (E-5).  Therefore, we recommend his records be corrected to the extent indicated below.

5.  Applicant also requested supplemental promotion consideration beginning with cycle 01E6 using his cycle 01E6 test scores; however, since he was automatically ineligible for promotion during the cycle based on his unsatisfactory progress on the WBFMP, his test was never scored and was destroyed after two years.  Further, there exists no provisions to provide him supplemental promotion consideration while in a retired status.  Moreover, we believe the reinstatement of his former grade will provide him full and fitting relief.  In view of the above determination, his request for supplemental promotion consideration beginning with cycle 01E6 using his cycle 01E6 test scores, is not favorably considered.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that on 30 October 2001, he was not reduced to the grade of senior airman (E-4), but on that date, he continued to serve in the grade of staff sergeant (E-5), and retired in that grade effective 1 April 2004.

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The following members of the Board considered Docket Number BC-2003-01988 in Executive Session on 8 July 2004, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 21 May 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 20 Oct 03.
    Exhibit D.  Letter, AFPC/DPPPE, dated 26 Feb 04.
    Exhibit E.  Letter, AFPC/DPPPWB, dated 9 Mar 04.
    Exhibit F.  Letter, AFPC/JA, dated 14 May 04.
    Exhibit G.  Letter, AFPC/DPSFOC, dated 17 May 04.
    Exhibit H.  Letter, SAF/MRBR, dated 21 May 04.

AFBCMR BC-2003-01988

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to XXXXXXX, XXXXXXX, be corrected to show that on 30 October 2001, he was not reduced to the grade of senior airman (E-4), but on that date, he continued to serve in the grade of staff sergeant (E-5), and retired in that grade effective 1 April 2004.