RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04719 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His 18 May 11 Fitness Assessment (FA) be declared void and removed from the Air Force Fitness Management System (AFFMS). 2. His referral AF Form 911, Enlisted Performance Report (EPR), rendered for the period 2 Jun 10 through 1 Jun 11 be declared void and removed from his records. 3. His records be provided supplemental consideration for promotion to the grade of senior master sergeant (E-8). 4. His EPR rendered for the period 2 Jun 11 through 1 Jun 12 be reconsidered for senior rater endorsement. ________________________________________________________________ APPLICANT CONTENDS THAT: He was unjustly required to take the abdominal portion the 18 May 11 FA even though his doctor recommended against it. If doctor’s recommendations and commander’s support could have decided this matter, he would not be in this situation. 1. His doctor’s recommendation for the applicant to receive an exemption from the AC portion of the FA was unjustly denied because of a local Medical Group Commander’s policy letter, implemented in Nov 10, which made medical exemptions for FA’s much more stringent. At the time of the FA, he suffered from multiple serious medical conditions which warranted exemption from the full FA; however, he was required to take the AC portion. His doctor, supervisor, and commander all support this contention. He suffered from an irregular heartbeat, severe lower back issues requiring hospitalization, a dislocated shoulder with a 75 percent torn labrum, migraine headaches, and was undergoing an MEB due to his medical conditions. For the migraine headaches he was on the prescription medication Depakote which is known to cause weight gain, and caused him to gain 18 pounds. 2. His referral “4” EPR was also unjust. In this instance, AFI 36-2406, Officer and Enlisted Evaluation Systems, requires a referral EPR, but the AFI is inadequate because it has no provision allowing special consideration for members with serious medical issues who are going through MEB action. Because of the FA failure, and the ensuing referral EPR, he was ineligible for promotion consideration during the 2011 Senior Master Sergeant promotion board. Further, because of the referral EPR in 2011, his 2012 EPR was not considered for senior rater endorsement. 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 Master Sergeant (E-7) during the period of time in question. On 14 Apr 10, the applicant was issued a AF Form 469, Duty Limiting Condition Report, citing the following restrictions: no running greater than 100 yards; no lifting, pushing, or pulling greater than 40 pounds; no repetitive bending at the waist; no walking greater than ½ mile; and, no AC measurement. On 22 Nov 10, the applicant’s Wing Medical Group issued a memorandum, Clarification of AC Exemption Recommendation for FA, establishing the Exercise Physiologist working with the Senior Profile Officer as the only authorities who could recommend to commanders medical exemptions from components of an FA for a member with Duty Limiting Conditions, and stating “AC changes due to weight gain from medications or lack of exercise should not get AC exemptions.” On 29 Nov 10, the applicant received an e-mail from the Wing Medical Squadron notifying him that his physician’s recommendation for the applicant to be exempt from the AC portion of the FA had been denied by the Senior Profile Officer. On 18 May 11, the applicant took the FA while exempt from all portions except the AC component and received a score of unsatisfactory. On 22 Aug 11, the applicant was issued an updated AF Form 469 indicating he was certified to return to duty as of 31 Oct 11 and removing restrictions imposed by MEB/PEB processing. His remaining restrictions were: no running greater than 100 yards; no lifting, pushing, or pulling greater than 40 pounds; and, no repetitive bending at the waist. The applicant’s last several FA results are as follows: Date Composite Score Rating 28 Sep 12 87.63 Satisfactory* 29 Mar 12 85.13 Satisfactory* 16 Sep 11 75.88 Satisfactory* 18 May 11 41.00 Unsatisfactory** 9 Nov 10 Exempt Exempt 27 May 09 79.88 Good * Exempt from sit-ups and push-up. **Took AC portion only. The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility (OPR) which are included at Exhibits C and D. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIM recommends denial, indicating there is no evidence of an error or injustice. The applicant claims he should have been exempt from all components of the FA in question, to include the AC measurement. The applicant provided an AF Form 469, Duty Limiting Condition Report, dated 14 Apr 10, exempting him from running greater than 100 yards, heavy lifting, pushing, pulling, carrying over 40 pounds, repetitive bending at the waist, walking greater than half a mile, and participating in the AC portion of the FA. In Nov 10, the applicant received an e-mail from his Wing Medical Group indicating his exemption for the AC portion of the FA was removed. On 18 May 11, the applicant completed his FA with exemptions in the cardio, push-up, and sit-up portions, but scored “unsatisfactory” on the AC portion. Soon thereafter, the applicant’s records were forwarded to an MEB for review. The final MEB summary, dated 11 Oct 11, indicated he would continue to be exempt from push-ups, sit-ups, and cardio portions of the FA. AFI 36-2905, Fitness Program, paragraph 2.10.4, states “AC will be performed on all members, unless exempted by medical provider IAW paragraph 4.2 since there is no risk to the member.” This excerpt validates the Wing Medical Group policy regarding not exempting member from the AC portion of the FA. In essence, there is no evidence to indicate the applicant should have been exempt from the AC. A complete copy of the AFPC/DPSIM evaluation, with attachment, is at Exhibit C. AFPC/DPSID recommends denial, indicating there is no evidence of an error or injustice with respect to the contested EPR. The applicant asserts his contested referral “4” EPR was unjust based on pre-existing medical conditions which were not considered for exemption by the AFI. The applicant provided documentation from competent medical authority to demonstrate several medical and orthopedic issues limited his activities and resulted in weight gain and an increase in his abdominal circumference, causing the applicant to fail his FA. However, other competent medical authorities, to include the MEB, clearly stated the underlying medical conditions were not significant enough to warrant an exemption to the AC portion of the FA. While the applicant’s commander and supervisor provided statements claiming that they did not believe the applicant should have been allowed to perform the FA, the medical community is ultimately responsible for determining when members should be exempt from components of the FA. In this case, healthy eating and nutritional consult could have educated the applicant in tailoring a program to prevent weight gain. AFPC/DPSIM provided an advisory in which they recommended the FA result not be removed from the AFFMS. Based on AFPC/DPSIM’s recommendation, the referral fitness comments as well as the “Does Not Meet” marking in Section III, Block 3 of the referral EPR are valid and in accordance with applicable policies and regulations. AFI 36-2905, effective 1 Jul 10, states “It is every Airman’s responsibility to maintain the standards set forth in this AFI 365 days a year.” Having a waist measurement of 41 inches at the time of an FA is by definition not physically fit nor a recipe for success for passing the FA. Concerning the applicant’s request for reconsideration in obtaining eligibility for Senior Rater endorsement on his 2012 EPR, AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports, states “the (appeals) board will not consider nor approve requests to change an evaluator’s ratings or comments if the evaluator does not support the change. When an evaluator supports changing ratings, all subsequent evaluators must also agree to the changes.” Senior raters are given full discretion when determining which reports to endorse. The applicant has not substantiated the contested report was not rendered in good faith by all evaluators based on knowledge available at the time. Although the AFBCMR is not governed by AFI 36-2401, recommend the AFBCMR follow the guidance set for an appeal and deny the applicant’s request. A complete copy of the AFPC/DPSID evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 5 Jul 13 for review and comment within 30 days. As of this date, no response has been received by this office (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. Insufficient relevant evidence has been presented to demonstrate the existence of an 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 (OPRs) and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. While the Board notes the applicant had the support of his physician, supervisor, and commander, the Wing Medical Group clearly had the authority to establish policies and procedures for exempting members from taking portions of their FA based upon medical conditions. Therefore, we are not convinced the Medical Group Senior Profile Officer’s denial of the applicant’s request for exemption from the AC portion, and the ensuing FA failure and follow-on personnel actions, represent errors or injustices. As for the applicant’s request pertaining to his senior rater endorsement, other than his own assertions, he has presented no evidence that would lead us to believe that his senior rater was determined as the result of an error or injustice or that his command abused their discretionary authority in making said determination. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-04719 in Executive Session on 8 Aug 13, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-04719 was considered: Exhibit A. DD Form 149, dated 1 Oct 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSIM, dated 13 Feb 13, w/atch. Exhibit D. Letter, AFPC/DPSID, dated 11 Jun 12. Exhibit E. Letter, SAF/MRBR, dated 5 Jul 13.