RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03577

						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

1.  His administrative demotion from Technical Sergeant (E-6) to Staff Sergeant (E-5), effective 19 Jun 12, be removed from his military records.

2.  His military records be corrected to reflect his rank as E-6 at the time of his retirement.  

APPLICANT CONTENDS THAT:

The demotion action was unjust based on the actions of his squadron commander associated with his retirement application under the Temporary Early Retirement Authority (TERA) program as well as his unsatisfactory Fitness Assessment (FA) immediately preceding the demotion action, which was due to a medical condition.  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 12 May 94.

On 10 Apr 12, the applicant applied for retirement under the TERA program.  

On 30 Apr 12, the applicant received a score of 61 on his FA, a failing score.

On 14 May 12, the applicant’s commander notified him that he intended to recommend his demotion to E-5.  The specific reasons for this demotion were: 
	
	On 27 May 10, he received a score of 49.75 on his FA, a failing score.  For this failure, he received a Letter of Reprimand (LOR).

	On 26 Jul 10, he received a score of 55.50 on his FA, a failing score.  For this failure, he received a LOR.

	On 19 Nov 10, he received a score of 54.70 on his FA, a failing score.  For this failure he received a LOR, dated 30 Nov 10. 

	On 17 Feb 11, he received a score of 73-10 on his FA, a failing score.  For this failure, he received a LOR, dated 23 Feb 11. 

	On 17 Mar 11, an administrative discharge board found that the applicant failed four FAs between 27 May 10 and 17 Feb 11.  They recommended he be retained in the Air Force.   

	On 30 Apr 12, he received a score of 61 on his FA, a failing score.  

On 18 Jun 12, the 30-SW/JA found the proposed administrative demotion action against the applicant to be legally sufficient.   

On 19 Jun 12, the applicant was demoted from the permanent grade of E-6 to E-5, with a date of rank and effective date of 19 Jun 12. 

On 31 Aug 12, the applicant was furnished an honorable discharge, retired effective 1 Sep 12, and was credited with eighteen years, three months, and nineteen days of active service.   

On 15 Jul 16, SAF-IG advised AFBCMR their office did not have an IG complaint filed by the applicant alleging his commander violated military leave instruction by not approving or disapproving his terminal leave request, or allegations of two differing opinions concerning the applicant’s medical condition as it pertained to passing his 30 Apr 12 Fitness Assessment (Exhibit E).

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), and memoranda prepared by AFPC/JA and AFBCMR Medical Consultant which are at Exhibits C, D, F, G and J.    

AIR FORCE EVALUATION:

AFPC/DP3SP recommends denial indicating there is no evidence of an error or an injustice.  The applicant failed to file this application within three years of the discovery of the alleged error or injustice.  Notwithstanding timeliness, the demotion action taken against the applicant was procedurally correct and there is no evidence there were any irregularities or that the case was mishandled in any way.  The commander acted within his authority to demote the applicant from E-6 to E-5 for his failure to maintain fitness standards based on the information he had at that time.  

On 10 Apr 12, the applicant applied for early retirement under the TERA Program.  On 18 Apr 12, his commander approved the retirement.  However, when the applicant failed his fourth fitness test (30 Apr 12) within a 24-month period, his commander withdrew his previous recommendation for approval of the applicant’s request for retirement.  In accordance with (IAW) AFI 36-2502, Airman Promotion/Demotion Programs, airmen may be demoted for failing to maintain or demonstrate the ability and willingness to attain physical standards.  Unit CCs may take adverse administrative action upon a member’s unsatisfactory fitness score on an official fitness assessment.  Unit CCs shall make a discharge or retention recommendation to the Installation CC (or special/general court-martial convening authority in the member’s chain of command) when an individual remains in the Unsatisfactory fitness category for a continuous 12-month period or receives four Unsatisfactory FA scores in a 24-month period.  

A complete copy of the AFPC/DP3SP evaluation is at Exhibit C.

AFPC/DP2SSM recommends denial indicating there is no evidence of an error or an injustice.  The applicant failed to file this application within three years of the discovery of the alleged error or injustice.  Notwithstanding timeliness, the applicant received multiple fitness assessment failures dated 26 Jul 10, 19 Nov 10, 17 Feb 11, and 30 Apr 12.  He was required to be evaluated by a military healthcare provider and a further evaluation was needed to make a determination.  He was medically evaluated on 04 May 12 and it was determined that he had a medical condition that precluded him from achieving a passing score.  The healthcare provider stated that the applicant’s aerobic portion of the test would have been affected, but did not state whether he could have taken the walk portion of the cardio component.  The healthcare provider also stated that the applicant did not need to have an exemption for the abdominal circumference.  If the applicant would have been exempted on the cardio component, he would have passed three of the FAs.  On 15 Jun 12, another healthcare provider stated that the medical condition was ruled out because the applicant had taken previous FAs and passed them even with the medical condition.  The memorandum also stated the applicant was meeting a Medical Evaluation Board (MEB) for the condition.  Per AFI 36-2905, Fitness Program, Air Force Guidance Memorandum (AFGM) 3, unit commanders exercise complete discretion in selecting responsive action(s).  The commander has the authority to use discretion when implementing action for a failed fitness assessment.  Due to conflicting guidance from the medical authority, they recommend denying the relief sought by the applicant.  

A complete copy of the AFPC/DP2SSM evaluation is at Exhibit D.

AFPC/DP3ST recommends denial indicating there is no evidence of an error or an injustice.  The applicant failed to file this application within three years of the discovery of the alleged error or injustice.  Notwithstanding timeliness, on 10 Apr 12, the applicant submitted an application for retirement under the TERA program.  The unit commander recommended approval of the application on 18 Apr 12; however, on 1 May 12, the commander notified their office that the applicant was facing disciplinary action for failing to maintain fitness standards, and that the commander was withdrawing the previous recommendation to approve the TERA application.  Per Personnel Services Delivery Memorandum (PSDM) 12-30, conditions that render Airmen ineligible for TERA, are those individuals “Under investigation, under military or civil charges, pending disciplinary action or pending involuntary discharge.”  Based on the information provided by the commander, the applicant was ineligible to retire under the TERA program.  Although the applicant was ineligible, records indicate that the branch chief elected to approve the TERA retirement as an exception.  There are no notes to ascertain why the exception was granted, but the applicant’s request was approved on 4 May 12.  

When an Airman is retired within three years of having been reduced in grade, retired pay is computed under the Final Basic Pay plan as outlined in 10 United States Code (USC) §1407f, Exception for Enlisted Members Reduced in Grade and Officer Who Do Not Serve Satisfactorily in Highest Grade Held.  When demotion occurs and the Airman is retired in a grade lower than the highest held on active duty, the Airman is entitled to review by the Service Secretary or designee to determine if the Airman will be advanced to a higher grade upon completion of 30 years combined service (active duty plus time on the retired file) as outlined in 10 USC §8964, Higher grade after 30 years of service: warrant officers and enlisted members.  Since the applicant was demoted prior to retirement, he was entitled to a grade advancement review.  On 14 Jun 13, the Secretary of the Air Force Personnel Council issued a decision which found that the applicant “served satisfactorily in the higher grade of E-6 within the meaning of Section 8964, Title 10, United States Code” and directed advancement to that grade on the retired list effective the date of completion of all required service.  While the Personnel Council found that the applicant served satisfactorily in the grade of E-6, this decision relates specifically to advancement on the retired list and is not a determination that the demotion action itself was inappropriate.  

The applicant was demoted prior to retirement and provided no evidence to indicate the demotion was erroneous.  The demotion is reflected correctly in the applicant’s record.  A satisfactory service determination was appropriately accomplished by the SAF Personnel Council and the advancement approval was documented correctly in the Military Personnel Data System and in an amendment to the applicant’s retirement order

A complete copy of the AFPC/DP3ST evaluation is at Exhibit F.

AFPC/JA recommends denial indicating there is no evidence of an error or an injustice.  The applicant has not provided sufficient evidence to show material error or injustice associated with the administrative demotion action initiated by his squadron commander after the applicant’s unsatisfactory fitness assessment on 30 Apr 12.  The applicant’s Individual Fitness Assessment History documents five “unsatisfactory” or “poor” fitness assessment scores within the 24-month period prior to the demotion action, and nine of his total 17 fitness assessments since 29 Nov 04 have resulted in either “unsatisfactory” or “poor” scores.  Additionally, the applicant met an administrative discharge board on 17 Mar 11 that determined he had failed four fitness assessments between 27 May 10 and 17 Feb 11, yet recommended he be retained in the Air Force.  While the applicant has provided evidence of conflicting opinions from military health care providers as to whether his medical condition precluded him from passing his 30 Apr we12 fitness assessment, there is no evidence that the initiating commander, demotion authority, or appellate authority took any administrative action against the applicant that was not authorized by law or regulation.  The demotion action appears to have been supported by the facts of the case.  

A complete copy of the AFPC/JA evaluation is at Exhibit G.

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant refutes the OPRs’ allegation his application was not timely filed.  He received his appeal denial final decision from the 30 SW/CC 5 Sep 12, and sent his AFBMCR application on 18 Aug 15, within the three years’ time limit per Title 10, USC Section 1552.  Additionally, he refutes all of the evaluations recommendations of denying his requested relief.  He reiterates that his demotion ordeal was to make an example him and shame him in front of his peers and subordinates.  His commanders should have looked at his 18 years of service.

A complete copy of the applicant’s rebuttal is at Exhibit I.

ADDITIONAL AIR FORCE EVALUATION:

The AFBCMR Medical Consultant recommends consideration for restoring the applicant’s rank to E-6, effective the date of his demotion, indicating there is evidence of an injustice.  While the Medical Consultant believes the commander acted within his authority to demote the applicant, as described in the advisory from AFPC/JA [notwithstanding the divergent medical opinions], he cannot refute objective evidence that the applicant did demonstrate significant airway hyperactivity [proven by the Provocholine Challenge test] in May 2012; which may have affected his performance on the Fitness Assessment of 30 Apr 12.  However, it does not prove a causal relationship with the applicant’s historical Fitness Assessment failures from the past; particularly in the context of two intervening Satisfactory scores in April and October 2011 with no exemptions.  Moreover, no respiratory complaints were disclosed in the record in conjunction with previous fitness failures dating from CY 2004.  As the applicant was also struggling with obesity, it is possible that he may have attributed his failures to poor conditioning and did not seek care for a respiratory ailment or he had asthma symptoms and preferred not to disclose this; hoping to reach 20 years of service, albeit only speculation and conjecture on the part of the Medical Consultant.  The Medical Consultant strongly feels the applicant has/had a medical condition that could have affected the aerobic component of his Fitness Assessment on 30 Apr 12, noting its temporal proximity to the revealing diagnostic evaluation in May 2012.

A complete copy of the AFBCMR Medical Consultant evaluation is at Exhibit J.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the additional Air Force evaluation was forwarded to the applicant on 3 Oct 16 for review and comment within 30 days (Exhibit K).  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.  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, including his rebuttal; however, we agree with the opinion and recommendation of the Air Force offices of primary responsibility (OPR) and AFPC/JA, and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  We note the AFBCMR Medical Consultant recommends consideration for restoring the applicant’s rank to E-6, effective the date of his demotion and strongly feels the applicant has/had a medical condition that could have affected the aerobic component of his Fitness Assessment (FA) on 30 Apr 12, however, based on the divergent medical opinions presented, we were not persuaded there was a causal relationship between the applicant’s FA failure and the medical condition.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested 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-2015-03577 in Executive Session on 15 Nov 16, under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-03577 was considered:

	Exhibit A.  DD Form 149, dated 18 Aug 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP3SP, dated 1 Apr 16.
	Exhibit D.  Memorandum, AFPC/SP2SSM, dated 31 May 16.
	Exhibit E.  Email, SAF/IG, dated 15 Jul 16.  
	Exhibit F.  Memorandum, AFPC/DP3ST, dated 25 Jul 16
	Exhibit G.  Memorandum, AFPC/JA, 4 Aug 16.  
	Exhibit H.  Letter, SAF/MRBR, dated 10 Aug 16.
	Exhibit I.  Letter, Applicant, dated 20 Aug 16. 
	Exhibit J.  Memorandum, AFBCMR Medical Consultant, dated
			  27 Sep 16.
	Exhibit K.  Letter, SAF/MRBR, dated 3 Oct 16.   

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.