RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04055 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: 1. Remove his Fitness Assessment (FA) Score for 1 Aug 11. 2. His administrative demotion to Staff Sergeant/SSgt (E-5) be voided from his records and his rank of Technical Sergeant/TSgt (E-6) restored. 3. His DD Form 214, Certificate of Release or Discharge from Active Duty, corrected. APPLICANT CONTENDS THAT: Through counsel, he consistently performed at the highest levels throughout his career and by 2009, had risen to the rank of TSgt. His Enlisted Performance Reports (EPRs) confirm that he was a “Superb manager”, lauded by his group commander as a “frontrunner”, and “Outstanding leader!” Although he struggled with meeting fitness standards, his failures were a product of medical issues that prevented him from passing, thus resulted in an administrative demotion. In 2006, the applicant was exempted from the 1.5 mile run or “cardio” portion of his FA due to knee surgery. In 2007, he reenlisted and achieved two “Good” scores on his 2007 and 2008 FAs. Then in the beginning of 2009, his cardio scores uncharacteristically declined below 30 points. The timing of this decline is consistent with his reporting medical conditions that contributed to his failing fitness scores. A reemergence of his knee problem (re-torn meniscus) as well as new lower back problems (degenerative disc disease) further frustrated his attempts to earn a passing FA. He submits that though reported these problems to his primary care physician in 2010, he experienced difficulty in scheduling a referral appoint with a specialist able to diagnose and document his impairments. He was recommended for a second knee surgery and placed on limited duty states that exempted him from cardio portion of his FA through Dec 11. Tragically, he was able to document his medical condition that lead to his FA failures, his command has already begun to take adverse actions against him. On 1 Aug 11, he was called in from leave to perform a FA and scored an uncharacteristically low 10 points. On 8 Aug 11, physicians issues a profile exempting his from the cardio portion of the FA. On 23 Aug 11, he was demoted to SSgt for four FA failures within a 24 month period. In deciding to demote him, his Group Commander cited eight FA failures which began in 2004. His Group Commander deviated from the Air Force Instruction that authorized demotion action; specifically, in this case the commander erred in considering FA scores before the applicant’s last enlistment in 2006. Second, they contend that the applicant’s last FA occurred while he was on terminal leave orders. AFI 36-2502, Personnel, Airman Promotion/Demotion Programs, governs the commander’s general authority to demote Airmen. Paragraph 6.1.3., directs commanders to “[b]egin administrative demotion action during the term of enlistment when the reason for the action occurred, except when the commander is not aware of the facts and circumstances until after that term of enlistment expires.” Even if AFI 36-2502, does not prevent the commander from considering actions that occurred prior to the expiration of the Airman’s current enlistment term, the operative language in paragraph 6.1.3., limits the basis for initiation of administrative demotion action for deficiencies during that term of enlistment. Here, the applicant’s commander expressly initiate demotion action against him, citing a total of eight FA failures since 2 Apr 04. The construction of AFI 36-2502, did not prevent the commander from considering all of the applicant’s FA failures; however, the commander improperly based his demotion decision partially on his failures that occurred between Apr 04 and before his final 2007 enlistment. Regarding the applicant’s final fitness failure, it should be voided because he was on Terminal Leave. AFI 36-2905, Fitness Program, govern commanders’ authority to schedule FAs. Paragraph 5.1., cover FA exemptions; it directs that “Commanders will exempt members who are on terminal leave … in conjunction with retirement/separation.” Paragraph 5.2., further restricts commanders from granting temporary exemptions for FAs to impending retirements, separations except when the member is on terminal leave. Effective May 4, 2011, Special Order AC-009749, USAF had placed the applicant on terminal leave status. The applicant’s final FA was recorded on 1 Aug 11, during his terminal leave. Therefore, this fitness score which was used to justify his demotion should be removed from his record and the administrative demotion action declared void. Even if the applicant’s 1 Aug 11 FA was considered an “unofficial practice test”, paragraph 10.1.1.3., expressly prohibits use of such tests for purposes of justifying administrative punishment. Finally, the applicant’s FA failures were a direct result of documented medical conditions which prevented him from passing the cardio portion of the FA. He also submits that the AFBCMR has held in similar cases “since it has been determined his fitness failures were a result of a medical issue that prevented him from passing the cardio portion of the FA, the appropriate resolution would be to remove the referral report…”. Likewise, in this case, the applicant’s FA failures resulted from medical issues that prevented him from passing the cardio portion of his FA. Accordingly the appropriate resolution is to remove the administrative demotion based on the FA failures where a then undiagnosed torn meniscus and back problem prevented him from passing the cardio portion of his FA. In support of the request, the applicant provided copies of his DD Form 214, Enlisted Performance Reports, Fitness Assessment Record, Relevant Medical Records with Duty Limiting Condition Reports, Terminal Leave Order, Administrative Demotion Action, two Character Letters and a personal letter to the Board. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 1 Apr 92, the applicant entered the Regular Air Force. According to the applicant’s official military personnel record, his Enlisted Performance Report (EPR) rendered for the period of 15 Jan 09 through 14 Jan 10 was rated an overall “4.” This report was referred based on the applicant’s failure to meet minimum fitness standards during his FA. On 19 Mar 10, the applicant received a Letter of Reprimand (LOR) for failing to maintain fitness standards. On 12 Jul 10, the applicant received a LOR for failing to maintain fitness standards. On 1 Aug 11, the applicant’s duty status was “Present for Duty” according to MilPDS Duty Status History. Below are the applicant’s last seven FA scores. 28 Oct 09 Poor 27 Jan 10 Poor 19 Apr 10 Poor 28 Jul 10 Satisfactory 20 Jan 11 Satisfactory * 1 Aug 11 Unsatisfactory 29 Sep 11 Unsatisfactory * Contested FA score On 8 Aug 11, the applicant received a LOR for failing to maintain fitness standards. On 23 Aug 11, the applicant received notification of demotion action based on his failure to keep fit, specifically for failing four FA’s within a twenty-two month period. On 30 Sep 11 the applicant was demoted to the rank of Staff Sergeant (SSgt) with a new date of rank (DOR) of 30 Sep 11. On 31 Mar 12, the applicant was relieved and retired, effective 1 Apr 12, in the grade of Staff Sergeant (E-5), and was credited with 20 years of active service. 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 F. AIR FORCE EVALUATION: AFPC/DPSIM recommends denial indicating there is no evidence of an error or injustice to remove the applicant’s 1 Aug 11 FA. The applicant failed his FA on 28 Oct 09, 27 Jan 10, 19 Apr 10 and 1 Aug 11. The applicant provided a memorandum from the medical group, dated 3 Aug 11, which stated no running, climbing, squatting, but ok to bend. He also provided an AF Form 469, Duty Limiting Condition Report, for 4 Aug 11 through 2 Dec 11 stating he should not run more than 400 yards, climb/squat/jump, bend at the waist, and walk for more than .5 mile. The applicant provided a copy of AF Form 422, Notification of Air Force Member’s Qualification Status, for 12 Sep 11 through 2 Dec 11; which cleared the applicant to test on abdominal circumference and push-ups only; the Duty Limiting Condition effective date was 4 Aug 11. In accordance with AFI 36-2905, Fitness Program, Attachment 19, Administrative and Personnel Actions for Failing to Attain Physical Fitness Standards, unit commanders exercise discretion in selection responsive actions. They may use more than one action per failure. The commander has the decision to use what punishment he/she feels is appropriate and it is completely his/her discretion. While the applicant did not appeal the fitness failure or request removal of the failure, the applicant suggests the AFI was misapplied in his administrative demotion. According to Attachment 19, the commander has the authority to pursue an administrative demotion after the applicant received a 4th failure within a 24 month period. A complete copy of the AFPC/DPSIM evaluation is at Exhibit C. AFPC/DPSOE recommends denial indicating there is no evidence of an error or an injustice to restore the applicant’s rank of TSgt. In accordance with AFI 36-2905, Fitness Program, 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 the appropriate administrative and personnel actions for members who fail to attain physical fitness standards. While this table is only illustrative and is not binding, unit commanders exercise complete discretion in selecting responsive action(s). Commanders may use more than one action per failure. AFPC/DPSIM did not recommend whether or not the failed FAs should be removed as the applicant did not request their removal. They did, however, review the case and determined that the applicant's commander exercised his own discretion when implementing the punishment for failure to maintain fitness standards. Since the FAs remain valid and the commander acted within his authority to demote the applicant, we recommend denial of the applicant's request to remove the administrative demotion action. A complete copy of the AFPC/DPSOE evaluation is at Exhibit D. AFPC/DPSIM recommends denial indicating there is no evidence of an error or injustice to remove the applicant’s 1 Aug 11 FA. The applicant did not provide evidence reflecting unit commander’s invalidation. Based on the Fitness Program guidance at that time of the failure, the applicant could have requested the Medical Treatment Facility invalidate his test if he was ill or injured during this test. Afterwards, the applicant would have requested invalidation by his unit commander. If the unit commander had invalidated the test, the test would not have been entered in the member’s fitness record. In accordance with AFI 36-2905, Fitness Program, dated 1 Jul 11, “If an Airman becomes injured or ill during the fitness assessment and is unable to complete all required components, he/she will have the option of being evaluated at the Medical Treatment Facility (MTF) but their test will still count unless rendered invalid by the Unit Commander. If the medical evaluation validates the illness/injury, the Unit Commander may invalidate the test results. The Airman will then be required to retest within five duty days or when capable based on the recommendations of the medical provider/MLO and the Exercise Physiologist.” “If an AF Form 422, Notification of Air Force Member’s Qualification Status, is required, an additional seven days will be allowed for the AF Form 422 to be generated and provided. FAC staff (or UFPM where no FAC exists) will hold scores of RegAF and AGR Airmen who become injured or ill for five duty days to allow Medical and Commander review. Scores can be entered in AFFMS on the sixth duty day if the Commander does not invalidate test results. For non-AGR ARC Airmen, FAC staff will hold scores for up to one month and enter scores into the Air Force Fitness Management System (AFFMS) on the thirtieth calendar day if the Commander does not invalidate the test results. The Airman should notify his/her Commander in a timely manner regarding the injury/illness to ensure communication regarding test validity with the MTF and FAC staff occurs prior to score entry into AFFMS.” The applicant included the following evidence: a document showing physical therapy appointments between 10 Aug 11 and 1 Sep 11, authorization memorandum for one visit to a Neurology clinic between 21 Jul 11 and 19 Oct 11, a memorandum from Bayhealth Medical Group-Orthopedic Dover with restrictions of no running, climbing, squatting, but okay to bend. Additionally, the applicant included a duty limiting profile dated 4 Aug 11, placing him on a duty limiting condition profile until 2 Dec 11 for no running more than 400 yards, no climbing/squatting/jumping, no repetitive bending at the waist, and no walking more than .5 mile. A complete copy of the AFPC/DPSIM evaluation is at Exhibit F. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In response to the Air Force advisories and through counsel, the applicant contends that his well-documented and chronic medical condition precluded him from achieving a passing score. It was only after the demotion action, did his chain of command learn that he has been diagnosed with degenerative disc disease and a torn meniscus. He rater attests that has leadership known the extent of his health condition, he would have received medical exemptions from taking the FA. They also disagree that his commander properly exercised his authority under AFI 36-3209. In accordance with Air Force Guidance Memorandum for AFI 36-2905, dated 20 Dec 10, Attachment 1, paragraph 16: “Commanders will exempt from FA, Airmen who are on terminal leave … in conjunction with retirement. Effective May 11, the applicant went on terminal leave pending retirement. As such, he should have been exempted from taking a FA. The Air Force Advisory did not address their argument regarding “Terminal Leave” exemption policy. For the previously stated reasons, the applicant desires and deserves that this Board restore him to the retired rank of Technical Sergeant. Alternatively, as an equitable remedy, the Board has the authority to promote him from retired SSgt to retired TSgt so that his record recognizes his above-and-beyond duty performance in the Air Force. 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, to include his rebuttal response, in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPRs) the applicant has not been the victim of an error of injustice. We find the applicant’s contention that he was on Terminal Leave on 1 Aug 11, more than 244 days before the effective date of his retirement, is unlikely and without any documentation. We find it more likely he was on ordinary leave when he took the contested FA. While there seems to be a valid medical condition, the applicant failed to provide any documentation requesting the Medical Treatment Facility or Commander invalidate his FA; based on the available evidence of record, we find no basis upon which to favorably consider removing the FA results. With regards to the applicant’s demotion action, we are not persuaded by the evidence that the actions taken by his commander were beyond his scope of authority, inappropriate, or arbitrary and capricious. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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 issues involved. Therefore, the request for a hearing is not favorably considered. 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-2014-04055 in Executive Session on 8 Mar 16 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 15 Aug 15, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSIM, dated 14 Nov 14 Exhibit D. Memorandum, AFPC/DPSOE, dated 17 Dec 14. Exhibit E. Letter, SAF/MRBR, dated 11 Feb 15. Exhibit F. Memorandum, AFPC/DPSIM, dated 21 Aug 15. Exhibit G. Letter, SAF/MRBR, dated 26 Aug 15. Exhibit H. Letter, Applicant, dated 19 Nov 15. Exhibit I. Miscellaneous Exhibit, dated 21 Jan 16.