RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04458 COUNSEL: NONE HEARING DESIRED: NO _______________________________________________________________ APPLICANT REQUESTS THAT: 1. His Fitness Assessment (FA), dated 22 Aug 12, be removed from the Air Force Fitness Management System (AFFMS). 2. His Letter of Counseling (LOC) with Unfavorable Information File (UIF), dated 18 Sep 12, be removed from his military personnel records. _______________________________________________________________ APPLICANT CONTENDS THAT: 1. He was forced to take the contested FA before the full 90- day reconditioning period had expired, in violation of AFI 36- 2905, Guidance Memorandum 4. He was initially served a Letter of Reprimand (LOR) for failing the FA, which was later rescinded when his commander became aware that he should not have participated in the contested FA. 2. The LOC and UIF he received as a result of being “non- current” in the fitness program is invalid and therefore, baseless and should be removed from his records. His 90th day to take the FA was on 28 Aug 12 but he could not have tested on that day due to the base being shut down because of a hurricane. The applicant's complete submission, with attachments, is at Exhibit A. _______________________________________________________________ STATEMENT OF FACTS: The applicant served in the Regular Air Force in the grade of major (O-4) during the matter under review. On 22 Aug 12, the applicant participated in an FA, attaining a composite score of 62.10, which constituted an unsatisfactory assessment. On 24 Aug 12, the applicant received a LOR for failing his Air Force Physical Fitness reassessment. On 30 Aug 12, the applicant filed an Inspector General (IG) complaint in reference to his commander forcing him to take the FA prior to his full 90-day reconditioning period being complete. On 4 Sep 12, the applicant participated in another FA and attained a passing score. On 5 Sep 12, the applicant’s commander rescinded the aforementioned LOR and determined that the action would not be filed in the applicant’s officer selection record. On 10 Sep 12, the IG Office responded to the applicant’s complaint acknowledging their awareness that the commander rescinded the LOR and the unit commander had taken corrective action. As a result, they considered the applicant’s complaint to be closed. On 18 Sep 12, the applicant received an LOC for failing to schedule his fitness retest in a timely manner. In accordance with AFI 36-2905, Airmen are required to retest within 90 days following an Unsatisfactory FA in order to maintain currency. The applicant’s 90th day was 28 Aug 12, he did not retest until 4 Sep 12. On 9 Oct 12, the applicant was ordered to be relieved from active duty on 31 May 13 and retired, effective 1 Jun 13. _______________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIM recommends granting the applicant’s request to remove the FA dated, 22 Aug 12 from the AFFMS, noting that Unit Commanders may not mandate Airmen to retest any sooner than the end of the 90-day reconditioning period; however, Airmen may volunteer to do so. As for the LOR, dated 24 Aug 12, it appears the commander has already agreed to rescind the LOR from his record. Notwithstanding the above, the applicant’s request to remove the LOC and UIF should be denied as the LOC was processed in accordance with AFI 36-2907. A complete copy of the AFPC/DPSIM evaluation, with attachments, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant reiterates that the LOC is inappropriate, unfair, and constitutes reprisal. He argues that if he had not objected to taking his FA on 22 Aug 12, he would have remained current in the system and would not have received the LOC. His FA on 22 Aug 12 was in effect until his commander invalidated the test on 5 Sep 12. He passed the test on 4 Sep 12. He points-out that the language in the LOC implies that either he “volunteer” to test on 22 Aug 12, or, face the consequences of being labeled “derelict” for failure to remain current. He received an LOC for “failing to remain current” in the fitness system but he was never non-current. A complete copy of the applicant’s response is at Exhibit E. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with respect to the 22 Aug 12 FA, the LOC and the UIF. We took notice of the applicant's complete submission in judging the merits of the case and agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has been the victim of an error or injustice with respect to the 22 Aug 12 FA. The applicant contends the basis for the LOC and the UIF, i.e., him becoming “non-current” in the fitness program, is invalid because circumstances outside his control caused him to be unable to schedule his FA before he became “noncurrent” on 28 Aug 12. In this respect, we note the applicant would not have been untimely in scheduling his retest, had he not been forced to take the FA on 22 Aug 12, prior to his 90-day reconditioning period. Therefore, we recommend the applicant’s record be corrected as indicated below. 4. The applicant alleges he is the victim of reprisal, indicating that the aforementioned LOC and UIF were issued in retaliation for making a protected communication to the Inspector General (IG) regarding his contested FA. However, while we found the evidence submitted sufficient to recommend removal of these actions from the applicant’s record, other than his own assertions, he has provided no direct evidence of this alleged reprisal motive. While the applicant filed an IG complaint related to his 22 Aug 12 FA failure and was subsequently issued the contested LOC and UIF for becoming “noncurrent,” the fact that his contact with the IG, preceded the LOC and UIF is not, in and of itself, sufficient to establish that these actions were motivated by reprisal. Therefore, after a thorough review of the evidence before us, we do not conclude the applicant has been the victim of reprisal. The applicant has not established the LOC and UIF were rendered in retaliation to making a protected communication. Therefore, it is our determination the applicant has not been the victim of reprisal based on the evidence of record in this case. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected as follows: a. The Fitness Assessment (FA), dated 22 Aug 12, be declared void and removed from the Air Force Fitness Management System (AFFMS). b. The letter of counseling (LOC), with Unfavorable Information File (UIF), dated 18 Sep 12, be declared void and removed from his records. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-04458 in Executive Session on 4 Jun 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 25 Sep 12, w/atchs. Exhibit B. Applicant’s Military Personnel Records. Exhibit C. Letter, AFPC/DPSIM, dated 29 Oct 12, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 26 Nov 12. Exhibit E. Letter, Applicant, dated 3 Dec 12.