RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-00475

 						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His Fitness Assessment (FA) dated 19 March 2015 be void and removed from his record.

His grade of Airman First Class (A1C, E-3) be restored.  

He be promoted to the grade of Senior Airman (SrA, E-4) as scheduled based on the restoration of his grade to A1C.  

APPLICANT CONTENDS THAT:

On 19 March 2015, he failed his FA as a result of a side effect to Zoloft which was prescribed to him for his depression.  The prescribed medication caused him to gain weight and his waist measurement climbed from 38 to 41 inches.  Despite being informed of the situation, his chain of command decided to pursue the demotion action against him.  This was an injustice because he had no control of the side effect of the prescribed medication.  

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

STATEMENT OF FACTS:

The applicant is in the Air National Guard and is currently in the grade of A1C.  

The applicant entered the Regular Air Force on 11 December 2012 and was released from active duty on 1 January 2017 in the grade of A1C.  He was credited with 4 years and 21 days of active duty service.   

On 19 March 2015, the applicant failed the abdominal circumference of his FA and did not attempt to complete the remaining components. His composite score was “0” and fitness level was “unsatisfactory.”  It was his third failure in a 24 month period.   

The applicant received a referral Enlisted Performance Report for the reporting period ending 31 March 2015.  The reason for the referral report was he failed to meet minimum FA standards.  

On 4 May 2015, the applicant was informed by his commander he was recommending he be administratively demoted to the grade of Airman (Amn, E-2) as a result of his third FA failure.  On 4 May 2015, the applicant submitted an appeal of the demotion action stating he had taken steps to improve his overall fitness and weight and that the demotion would cause his family financial hardship.  On 14 May 2015, after considering the applicant’s appeal, his commander decided to proceed with the demotion action.  On 26 May 2015, the staff judge advocate determined the administrative demotion legally sufficient.  

The applicant provides a letter dated 8 June 2015 from his mental health provider which states in January 2015 he was placed on medication which caused him to gain weight and made it extremely difficult to lose weight.  He was able to start losing the weight since being discontinued from the medication.  

Per Special Order AA-080 dated 8 July 2015, the applicant was administratively demoted to the grade of Amn with Date of Rank (DOR) of 28 May 2015 and effective date of 5 June 2015.    

AFI 36-2406, Officer and Enlisted Evaluations, paragraph 10.1.4 states, retired or separated personnel are not eligible to apply for correction through the Evaluation Reports Appeal Board (ERAB); therefore, they must submit a DD Form 149, Application for Correction of Military Records, to the AFBCMR. 

AFI 36-2905, Fitness Program, Figure 10.1, Fitness Assessment Appeals Process, states an airman may appeal an FA through their chain of command to the installation commander.  If the request is denied, the Unit Fitness Program Manager (UPFM) or the Fitness Assessment Cell (FAC) must submit the complete package to the Fitness Assessment Appeals Board (FAAB) at AFPC/DPSIM.  

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

AIR FORCE EVALUATION:

AFPC/DP2SSM recommends denial for removal of the FA stating the applicant has not exhausted all available avenues of administrative relief prior to seeking correction of his military record.  In accordance with AFI 36-2905, dated 21 October 2013, any military member can appeal their FA via wing appeal and subsequently through the FAAB within two years of discovering an error/injustice.  In this case, the applicant’s DD Form 149, Application for Correction of Military Record, was signed after 21 October 2013 and the appeal has not been considered by his wing commander, nor has it been reviewed by the FAAB; therefore, the applicant’s request was not submitted in accordance with current Air Force guidance.  

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

AFPC Enlisted Promotions recommends denial for the removal of the administrative demotion action, restoration of his grade to A1C and for promotion to SrA.  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 A1C to Amn for his failure to maintain fitness standards.  Further, the applicant is ineligible for promotion to SrA based on his referral report.  Even though the applicant did not request removal of the 31 March 2015 referral EPR, the case should be referred to AFPC Evaluations to determine whether the report would remain valid.

If the Board removes the 19 March 2015 failed FA and determines the demotion action was unwarranted, recommend the applicant’s grade be restored to A1C with a DOR and effective date of 11 December 2012.  If the referral report is removed, recommend the Board direct the applicant’s promotion to SrA effective and with a DOR of 11 April 2015.  

A complete copy of the AFPC Enlisted Promotions evaluation is at Exhibit D.  

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluation were forwarded to the applicant on 12 December 2016 for review and comment within 30 days (Exhibit E).  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.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  We note the Air Force offices of primary responsibility (OPR) recommend denial of the applicant’s requests indicating he had not exhausted available administrative remedies by first submitting his appeal for removal of the contested FA to the FAAB; however, the applicant is no longer on active duty and is not eligible to submit an application to the FAAB in accordance with AFI 36-2905.  The applicant is also not eligible to submit an appeal to the Evaluation Report Appeals Board (ERAB) for removal of his referral EPR per AFI 36-2406.  Moreover, the applicant was not made aware he had not exhausted the available administrative remedies until two weeks prior to his separation from active duty.  In view of this, we are persuaded the applicant has exhausted all available administrative remedies and his application is ripe for adjudication by this Board.  Having carefully reviewed the complete submission, we believe a preponderance of the evidence substantiates that corrective action is warranted.  In this respect, the applicant provides a letter, dated 8 June 2015, from his military psychiatrist which substantiates that in January 2015, he was prescribed medication which caused him to gain weight and made it extremely difficult to lose weight.  However, it appears the applicant’s medical condition was not properly considered.  In view of the medical evidence, it is our opinion his FA failure dated 19 March 2015 should be removed from his record.  We note AFPC Enlisted Promotions recommends denial for removal of the demotion action and restoration of his grade of A1C indicating there were no procedural errors in the administrative demotion and that it was within the commander’s authority.  They also recommend denial for promotion to the grade of SrA based on his referral EPR.  However, given the removal of the 19 March 2015 FA failure, there is no longer a basis for the administrative demotion and referral EPR.  Therefore, it is our recommendation that the applicant’s administrative demotion to the grade of Amn be revoked, his grade of A1C be restored, his referral EPR be removed and he be promoted to the grade of SrA.  Accordingly, in the interest of justice, we recommend the applicant’s records be corrected as indicated 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:

     a. His Fitness Assessment (FA) dated 19 March 2015 be void and removed from his record.

b. Special Order AA-080 dated 8 Jun 2015, demoting him to the grade of Airman (Amn, E-2) with Date of Rank (DOR) of 28 May 2015 and effective date of 5 June 2015 be revoked and removed from his record.  
	
c. His grade of Airman First Class (A1C) with DOR and effective date 11 December 2012 be restored.

d. His AF Form 910, Enlisted Performance Report (AB thru TSgt), for the reporting period ending 31 March 2015, be void and removed from his record.  

e. He be promoted to the grade of Senior Airman (SrA, E-4) with DOR and effective date of 11 April 2015.

The following members of the Board considered AFBCMR Docket Number BC-2016-00475 in Executive Session on 2 May 2017 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

All members voted to correct the records as recommended. The following documentary was considered:

	Exhibit A.  DD Form 149, dated 1 February 2016, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP2SSM, dated 21 July 2016.
	Exhibit D.  Memorandum, AFPC Enlisted Promotions, undated.
	Exhibit E.  Letter, AFBCMR, dated 12 December 2016. 

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.