RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2014-02512 COUNSEL:	NONE
HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
1)	Three failed fitness assessments (FAs) (dated 17 Feb 11,
3 Feb 12, and 16 May 12) be invalidated or reconsidered.
2)	His referral Enlisted Performance Report (EPR), rendered for the period of 2 Aug 11 through 1 Aug 12, be voided from his permanent record.

3)	His demotion to the grade of staff sergeant (E-5) be removed and he be restored to the grade of technical sergeant (E-6).

APPLICANT CONTENDS THAT:
1)	He had a pre-existing medical condition which precluded him from achieving a passing score on his FAs. He had ongoing knee issues and multiple profiles which have exempted him from a few FAs in the past. He acknowledges the importance of fitness and can verify , through multiple deployments, it has never impeded his ability to do his job. His orthopedic surgeon stated the injuries for which he was treated for in 2014, were the source of the applicant’s knee pain and swelling since 2010.

2)	The referral “3” EPR was unjust due to the pre-existing medical condition which precluded him from passing three consecutive fitness assessments (as dated 17 Feb 11, 3 Feb 12, and 16 May 12 above). He believes an overall 3 is unjust and does not represent his duty performance. During the appeal process for his referral EPR, he did not have adequate defense counsel while deployed.

3)	His demotion was overly harsh and he did not have the normal support system as he was an outsider working for a Geographically Separated Unit and his supervisor and rater were in Korea and Maryland. Both leaders accepted his demotion as “just administrative” and left the prosecution at the discretion of his military leadership in Japan; who also just PCS’d a few months earlier than he did. His former defense lawyer advised he focus on his last failed test the reason for his demotion was uncalled for. He failed because his heartbeat was 10 beats off [from passing] and was also on profile.  The prosecutor was misleading
1)	

in the projection he failed “overall” and it was [the applicant’s] ultimate decision to test”. Ironically, it is documented that his failure was due to 10 heartbeats over; the prosecutor also addressed the applicant’s previous injuries prior to the test but noted he was still cleared [for the fitness test]. The applicant also noted the appeal package he submitted before deploying was missing the current Fitness Assessment that showed he passed. The appeal process was not favorable to him as he was tasked with a last minute deployment and the deployed legal office offered him no assistance.

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

STATEMENT OF FACTS:
The applicant is currently serving as a member of the Regular Air Force in the grade of staff sergeant (E-5).

According to  information  provided  by  the  applicant,  his AF Form 422, Notification of Air Force Member’s Qualification Status, (start date of 17 Feb 11), reflects he was exempt from the
1.5 mile run and 1 mile walk component of the Fitness Test.
On 5 Feb 13, the applicant acknowledged receipt of his AF Form 910, Enlisted Performance Report, for the period of performance 2 Aug 11 through 1 Aug 12. Section III, Item 3, Fitness Standards, was marked “Does Not Meet” and his overall performance Assessment was rated a “3” (out of a maximum 5).

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C, D and E.

AIR FORCE EVALUATION:

AFPC/DPSIM recommends to deny the applicant’s full request to remove three FAs; however, there is evidence of an error or injustice to support partial relief.

AFI 36-2905, Fitness Program, states “providers will list physical limitations on the AF Form 469, Duty Limiting Condition Report. When physical limitations preclude the member from participating in fitness activities for greater than 30 days and/or accomplishing the FA, the member will follow local policy to obtain an exercise prescription and determination of FA exemption from the Exercise Physiologist/Fitness Program Manager. Unless member is given a composite exemption, member will continue to prepare for and be assessed on non-exempt components of the FA.” After a thorough review of the documentation provided by the

applicant, there is insufficient evidence to support the applicant’s claim to remove the FAs dated 3 Feb 12 and 16 May 12. The applicant’s AF Form 422, Notification of Air Force Member’s Qualification Status, dated 17 Feb 11 states “No running greater than 100 yards, No jumping, No high impact of the lower extremities.”

It is recommended to deny the relief sought by applicant to remove fitness assessments dated 3 Feb 12 and 16 May 12 due to the lack of supporting evidence; however, provide partial relief in the form of amending the FA dated 17 Feb 11 to exempt the cardio component, since the AF Form 422 specifically lists his limitations and is dated 17 Feb 11.

A complete copy of the AFPC/DPSIM evaluation is at Exhibit C.
AFPC/DPSID recommends denial the applicant’s request to remove his referral EPR from his record, indicating there is no evidence of an error or an injustice. First, the applicant did not file an appeal through the Evaluation Report Appeals Board (ERAB) under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports.

On 12 Jan 10, Senior AF leadership strengthened the AF Fitness program which delayed implementation to 1 Jul 10. This was to ensure airmen were provided a six month timeframe to prepare for the new AF Fitness requirements. AFI 36-2905, Fitness Program, dated 1 Jul 10, states “It is every Airman’s responsibility to maintain the standards set forth in this AFI 365 days a year. Being physically fit allows you to properly support the Air Force mission. The goal of the Fitness Program (FP) is to motivate all members to participate in a year-round physical conditioning program that emphasizes total fitness, to include proper aerobic conditioning, strength/flexibility training, and healthy eating.” It was ultimately the applicant’s responsibility to ensure that he was properly prepared for his fitness assessments. Although the applicant may feel this was an injustice, there were avenues to ensure any medical issues were taken into consideration prior to the report close-out date; not only by the rating chain, but with the proper authorities within the medical community. Therefore, to change or void this evaluation would be an injustice to other Airman which have consulted with the medical community  and received the proper medical profiles regarding the fitness program or the other Airman which have met the regulatory Air Force requirements.

An evaluation report is considered to represent the rating chain’s best judgment at the time it is rendered.  This OPR contends once a report is accepted for file, only strong evidence to the contrary warrants correction or removal from an individual’s record. The burden of proof is on the applicant. The applicant has not substantiated that the contested report was not rendered

in good faith by all evaluators based on knowledge available at the time.

Further, based on AFPC/DPSIM’s recommendation to deny the full request, and the lack of substantiating documentation provided in the case, the referral fitness comment and marking in Section III of the EPR should be considered valid and appropriate as recorded on the contested evaluation, and in accordance with all applicable Air Force policies and procedures. This OPR does not believe the applicant has provided sufficient substantiating documentation or evidence to prove his assertions the contested evaluation was rendered unfairly or unjustly, and has merely offered his view of events in the light most beneficial to him.

It is recommended to deny the applicant’s request to void the contested evaluation.

A complete copy of the AFPC/DPSID evaluation is at Exhibit D.
AFPC/DPSOE recommends to deny the applicant’s request to restore his rank, indicating there is no evidence of an error or an injustice. According to Special Order AA-12, 28 Jun 12, the applicant was demoted to the grade of staff sergeant (E-5) for failure to keep fit. IAW AFI 36-2502, Enlisted Airman Promotion/Demotion Programs, airmen may be demoted for failing to maintain or demonstrate the ability and willingness to attain physical standards. If the commander has sufficient reason to initiate demotion action, use the entire military record in deciding whether demotion is appropriate.

AFI 36-2905, Fitness Program, states unit commanders or equivalent may take adverse administrative action upon a member’s unsatisfactory fitness score on an official FA. Attachment 14 provides commanders guidance when selecting appropriate administrative and personnel actions for members who fail to attain physical fitness standards. This table is only illustrative and is not binding. Unit CCs exercise complete discretion in selecting responsive action(s). Commanders may use more than one action per failure.

It is recommended to deny the applicant’s request to remove the administrative demotion since the commander acted within his/her authority to demote the applicant IAW AFIs 36-2502 and 36-2905.

Should the Board grant the applicant’s request to remove the demotion, it is recommended the applicant’s grade be restored to technical sergeant (E-6) with a date of rank (DOR) of 1 Sep 10. Should the referral EPR be removed as well, it is recommended the applicant be provided supplemental consideration to the grade of master sergeant (E-7) beginning with cycle 13E7.

A complete copy of the AFPC/DPSOE evaluation is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluations were forwarded to  the applicant on 9 Sep 15 for review and comment within 30 days (Exhibit F). As of this date, no response has been received by this office.

THE BOARD CONCLUDES THAT:
1.	The applicant has exhausted all remedies provided by existing law or regulations.

2.	The application was timely filed.
3.	With regards to the applicant’s request for his referral Enlisted Performance Report (EPR), for the period 2 Aug 11 through
1 Aug 12, be removed from his record, 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 opinion and recommendation of AFPC/DPSID and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting this requested relief.

With regards to the applicant’s request for his demotion to the grade of staff sergeant (E-5) be removed and he be restored to the grade of technical sergeant (E-6), 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 opinion and recommendation of AFPC/DPSOE and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

With regards to the applicant’s request to fully invalidate three failed fitness assessments (FA) (dated 17 Feb 11, 3 Feb 12, and
16 May 12), insufficient 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 opinion and recommendation of the AFPC/DPSIM and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. However, we also concur with AFPC/DPSIM in that sufficient relevant evidence was submitted to render partial relief in the form of amending the 17 Feb 11 FA to exempt the cardio component, since the AF Form 422 specifically lists his

limitations and is dated 17 Feb 11.	Therefore, we recommend the records be corrected as below.

THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that the cardio component of the fitness assessment conducted February 17, 2011, be exempt.

The following members of the Board considered AFBCMR Docket Number BC-2014-02512 in Executive Session on 22 Oct 15 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 7 May 14, w/atchs. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	Memorandum, AFPC/DPSIM dated 9 Jul 14. Exhibit D.	Memorandum, AFPC/DPSID dated 10 Aug 15. Exhibit E.	Memorandum, AFPC/DPSOE dated 24 Aug 15. Exhibit F.	Letter, SAF/MRBR, dated 9 Sep 15.