RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-01883 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: 1. Her fitness assessments (FAs) dated 28 Jun 10 and 27 Aug 10, be removed from the Air Force Fitness Management System (AFFMS). 2. Her Referral Officer Performance Report (OPR) rendered for the period 1 Jul 09 through 28 Aug 10, be voided and removed from her permanent record. _________________________________________________________________ APPLICANT CONTENDS THAT: Her referral OPR was unjust as it was due to an undiagnosed medical condition. Due to the failure of the Military Treatment Facility (MTF), her medical providers did not initiate an AF Form 469, Duty Limiting Condition Report in a timely manner. This delay in medical care and the fact that she had minimal time to adjust to high altitude at Kirkland AFB after frequent temporary duties (TDYs) led to her FA failures. There was no AF Form 469 initiated during the period 3 Nov 09, to 27 Oct 10. On 13 May 10, a chiropractor documented her pain was worse with running and push-ups, and she poorly tolerated PT activities. On 28 Oct 10, a provider initiated the first AF Form 469 indicating “profile no push-ups for 3 months, push-ups causes tingling in arms.” On 18 Nov 09, an X-ray of her cervical spine was ordered and it took almost a year before she received the abnormal results. The 11-month delay (18 Nov 09 to 28 Oct 10) it took to review and inform her of the abnormal results, a lack of communication, the ordering of follow-up tests, and a subsequent change in her treatment plan (muscular to nerve) constitutes a delay in medical care. The elevation at Kirkland AFB is 5,289 feet above sea level. She was TDY 12 times between Nov 09 and Nov 10, an average of 5 days for each TDY. She tested in Aug 10 just four days after returning to Kirkland AFB. On 3 Jan 12, the Air Force Guidance Memorandum (GM) for AFI 36-2905, Fitness Program; was published. While the elevation adjustment would not have been value added in assisting her to pass the Jun 09 FA, it provides written guidance to installations where high elevation negatively affects optimal cardiovascular endurance. The GM demonstrates a return to elevation adjustment for high elevation installations when Fitness Tests are administered. On 1 Nov 10, she received her first AF Form 469 related to the pain and numbness in her neck. On 17 Nov 10, she tested in three of four components and received a “Satisfactory” FA score. In support of her request, the applicant provides a personal statement, copies of her Referral OPR, Report of Individual Fitness Test History, a Summary Timeline, a letter of support from her rating chain, and medical documentation. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is presently serving on active duty in the grade of major. With the exception of the contested report, the OPRs included in the applicant’s record reflect overall ratings of “meets standards.” The applicant did not file an appeal through the Evaluation Reports Appeal Board (ERAB) under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports. The relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letters prepared by the appropriate offices of the Air Force. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIM recommends denial of the applicant’s request to remove her FAs dated 28 Jun 10, 27 Aug 10, and 17 Nov 10. DPSIM states the applicant’s FAs were conducted in accordance with AFI 36- 2905. In addition, the AF Form 422 that was provided by the applicant is dated Jun 12, and is not applicable to the timeframe of the FAs in question. The complete DPSIM evaluation, with attachment, is at Exhibit B. AFPC/DPSID recommends denial of the applicant’s request to void her contested report. DPSID states, the applicant claims it was the MTF’s failure in not providing a timely medical profile, but she does not substantiate her claim by providing a statement from her Primary Care Manager (PCM) or from a competent medical authority which could have shed light as to why no medical decision was made to grant an AF Form 469 profile during the period in question. Without a statement, DPSID can only conclude competent medical authorities treating the applicant during that time made a valid decision to not issue an AF Form 469 profile to the applicant. The applicant made numerous visits to the MTF during this period; however, there was no evidence of any fitness component exemption as the result of a fitness profile, until 17 Nov 10, as recorded in AFFMS. The applicant has the responsibility to pursue any needed profile(s) with her PCM during the time period. The applicant has not provided any evidence to show that any such attempts were made by her prior to, or during the timeframe of the failed FAs. The applicant has not provided valid evidence to support her claim that any of the fitness components she tested on were evaluated inappropriately due to elevation considerations. The AF Form 469 and AF Form 422 the applicant provided were outside the relevant rating period and are therefore not relevant to the applicant’s case to void the contested OPR, nor were they relevant to the FAs in question. Based on the lack of substantiating documentation provided, DPSID considers the referral fitness comment in Section IV and marking in Section IX to be valid and appropriate as recorded on the contested report, and in accordance with all applicable Air Force policies and procedures. The applicant had avenues to ensure that any medical issues were taken into consideration; not 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 Airmen which have consulted with the medical community and received the proper medical profiles regarding the fitness program or the other Airmen which have met the regulatory AF requirements. An evaluation report is considered to represent the rating chain’s best judgment at the time it is rendered. Once a report is accepted for file, only strong evidence to the contrary warrants correction or removal from an individual’s record. The applicant has not substantiated the contested report was not rendered in good faith by all evaluators based on knowledge available at the time. The complete DPSID evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: She disagrees with DPSID’s opinion that there was no delay in medical treatment. During the 11-month period (18 Nov 09 – 28 Oct 10), there was ample opportunity for multiple members of the MTC to review and tell her the abnormal results of her 18 Nov 09 X-ray. Had she been told she had multi-level degenerative disc disease and neuroforaminal narrowing, she would certainly have requested a profile appropriate to her limitations. However, because these abnormal results were not communicated to her for almost a year, she dutifully continued to comply with the muscular plan of care treatments until her second FA failure, even with continuing symptoms. She contends that her former rater is a competent medical authority; he is the Aerospace Neurology Consultant to the Air Force Surgeon General. The applicant's complete response is at Exhibit E. The applicant also provides a memorandum of support from The Inspector General of the Air Force. The IG memorandum, with attachments, is at Exhibit F. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATIONS: In view of the applicant’s rebuttal response and supporting statement from the Air Force IG, DPSIM was asked to provide an additional advisory opinion. DPSIM considered the IG’s memorandum and stated their recommendation to deny the request had not changed. DPSIM states they could not comment on the delay in providing appropriate medical documentation, i.e., the AF Form 422 and/or AF Form 469, as it is not within the purview of their office to comment on contributing factors involving medical treatment. The applicant’s FAs were conducted on the scheduled date that aligned with the annual requirement and re-assessment for a failed assessment. There were no discrepancies identified in the scheduling of the FAs. With the introduction of AFI 36-2905 in Jul 10, commanders were given some authority to exempt members from all or singular components of the FA. Based on the evidence provided, it is unclear if the commander engaged with the MTF to make such a determination. While the MTF allegedly was delayed in providing the necessary documentation, the commander had the authority to temporarily waive the member from testing. Unfortunately, this would have only affected the 27 Aug 10 FA. The Unit Fitness Program Manager (UFPM) and Fitness Assessment Cell (FAC) are required to test Airmen on all components unless exempted by the commander in consultation with medical authority. In the absence of such documents the UFPM/FAC will test all components; in short, the applicant was tested as required considering what was available to test administrators. The complete DPSIM evaluation is at Exhibit G. AFMSA/SG3O reviewed this application and concurs with DPSIM and DPSID that the applicant’s failed FA’s should not be removed from the AFFMS, and that her referral OPR should not be removed from her records. SG3O agrees the MTF could have better documented the applicant’s suitability for fitness-related activities and better communicated her X-ray results in 2009; however, they interpret her actions as a belated attempt to transfer responsibility for her failure to meet AF fitness standards. In fact, she made the following statement in a memo to AFIA/SG, dated 27 Oct 10, “I take full responsibility for my fitness failure.” The applicant sought treatment in Nov 09, for left arm and hand numbness. She was referred to physical therapy and chiropractor. A plain film showed very mild right multi-level neuroforminal narrowing worse on the right and degenerative changes in the cervical spine. The applicant indicated these results were not communicated with her until a year later. She states that the MTF failed to initiate an AF Form 469 in a timely manner, and that she was not placed on a FA exemption until Nov 10. SG3O interprets the X-ray findings as showing non-specific degenerative changes, and they would not mandate a FA exemption independent of clinical correlation. SG3O agrees that the standard of care should be to communicate X-ray and lab findings to the patient in a timely manner. From 2009 until her first FA failure on 28 Jun 10, the applicant visited primary care twice, on 3 Nov 09 and 18 Nov 09. Typically, FA exemptions are issued by the primary care provider, and physical therapists and chiropractors do not issue AF Forms 469. No FA exemption was issued during either primary care visit in Nov 09, and no documentation on suitability for fitness activities was made. There appears to have been no effort on the applicant’s part from Nov 09 – Jun 10 to communicate to the MTF that she was unable to train in, or perform all four components of the FA. Despite falling the FA, she did not seek medical care in the two months before her next FA on 27 Nov 10, based on the available medical documentation and her own timeline. Even after her second consecutive FA failure, she did not seek medical attention until 14 Oct 10. Her argument that medical symptoms precluded her from passing the FA and the MTFs inadequately profiled her is questionable given her own delay in seeking medical care. The applicant states that she was finally issued an AF Form 469 on 28 Oct 10, at which time a MRI of the cervical spine was ordered. This was performed by a civilian imaging center on 2 Nov 10; it showed multi-level degeneration, uncovertebral hypertrophy (also consistent with degenerative changes), and foraminal narrowing at multiple levels. These findings require clinical correlation, and given her symptoms of persistent left arm pain and numbness, her AF Form 469 to exempt her from pushups was reasonable. The applicant further claims that her frequent TDYs outside of Kirkland AFB hindered her from optimally performing the FA, and references the AFGM5, to AFI 36-2905, published on 3 Jan 12. This explanation is unsatisfactory. She was TDY less than half the time between her two FA failures. More importantly, she cannot use a change in the Air Force fitness program policy to retroactively invalidate a score that existed under the old policy. In fact, had she used the altitude correction detailed in AFGM5, it would have resulted in a 5 second decrease in her run time of 18.46 on the second FA, her better run time of the two FA failures. The corrected time would not have influenced her score. In fact, under the current AFI policy, which incorporates minimum component values, she would have scored below the minimum and would have automatically failed the FA (maximum 1.5 mile run time allowed: 18:14). Regarding the letter of support from the Deputy Director of Medical Operations at the Air Force Inspection Agency (AFIA), during the contested period, he states, in his letter, “…more expedient clinical follow-up should have been accomplished, as this would be the accepted standard of medical care…if this additional medical follow-up and clinical information had been available earlier, Maj. likely would have avoided the fitness testing failures that ultimately led to the referral OPR.” What is not explained is to what extent the responsibility for this clinical follow-up lies with the applicant. As discussed above, there were no primary care visits between 18 Nov 09 and 14 Oct 10. SG3O concurs that the MTF did not appropriately communicate the X-ray results performed on 18 Nov 09, but there is no mention that the applicant attempted to find the results. In Air Force MTFs, patients can always telephone the provider or clinical nurse, which becomes part of the medical record as a “telephone consultation.” No telephone consultations appear to have been sought at anytime between 18 Nov 09 and 14 Oct 10. SAF/IG disputes AFPC’s determination that there was no delay in medical treatment, and cites the ample opportunities for multiple members of the Kirkland MTF to review and inform her of the abnormal results of the 18 Nov 09 X-ray. Implicit in this comment is that somehow the X-ray would have automatically driven a FA exemption. As noted above, the X-ray finding was non- specific and would have required clinical correlation for appropriate disposition. The fact she had multiple visits to PT and a chiropractor does not necessarily imply a missed opportunity to issue an AF Form 469, as duty limiting conditions are normally under the purview of the primary care provider. SAF/IG also states that “Because these abnormal X-ray results were not communicated to her until Oct 10, almost a year later, she dutifully continued to comply with the muscular plan of care treatments that resulted in an Air Force FA failure for pushups, even with continuing symptoms.” In fact, the applicant achieved a perfect score of 10/10 points on the 28 Jun 10 FA; her failure primarily resulted from her very poor run score. She subsequently failed the 27 Aug 10 FA when she was only credited with 2 pushups (0/10 points); this FA was administered by the new FAC. But it was not just the pushups that caused her to fail. During this FA, AFI 36-2905 was operational. She had a run time of 18.46 (42/60 points), 11 sit-ups (1.2/10 points), and 33.0” abdominal circumference (16.5/20 points). The SAF/IG memo does not consider the responsibility of the applicant for the delay in issuing the AF Form 469. The complete SG3O evaluation is at Exhibit H. _________________________________________________________________ APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATIONS: On 14 Feb 13, copies of the Air Force evaluations were forwarded to the applicant for review and comment within 30 days. To date, a response has not been received (Exhibit I). _________________________________________________________________ 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 error or injustice warranting corrective action. After careful consideration of the applicant’s complete submission the majority of the Board finds it to be in the interest of justice to grant relief. The majority of the Board notes the recommendations of the Air Force offices of primary responsibility to deny the requested relief. However, their recommendations appear to be based primarily on the fact the actions taken against the applicant were properly executed in accordance with governing policy. Nevertheless, this Board may base its decisions on matters of equity and justice, rather than simply on whether rules and regulations were followed. The majority of the Board finds it unconscionable that despite admitting the failures in the medical standard of care, AFMSA/SG3O would reach the conclusion that the applicant should have taken responsibility to find out the results of her medical tests. The majority of the Board notes that, as her commander (a competent medical authority and a PCM) said, had the results been communicated to the applicant immediately, it likely would have led to duty limitation recommendations, and would have prevented her FA failures. In this respect, the Board majority notes the delayed medical diagnosis and treatment was likely the cause of her FA failures and in the interest of justice believes her FAs dated 28 Jun 10 and 27 Aug 10 should be removed from her records. Moreover, since her referral OPR was based on the unsatisfactory FAs, the majority of the Board also believe it should also be removed. In view of the above, the majority of the Board recommends that her records be corrected as indicated below. _________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that: a. Her fitness assessments dated 28 Jun 10 and 27 Aug 10 be declared void and removed from the Air Force Fitness Management System. b. The AF Form 707, Officer Performance Report (Lt thru Col) rendered for the period of 1 Jul 09 through 28 Aug 10, be declared void and removed from her records It is further recommended that she be provided promotion consideration to the grade of lieutenant colonel by a Special Selection Board for any board(s) in which the above referenced OPR was a matter of record. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-01883 in Executive Session on 5 Feb 13 and 12 Apr 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member By a majority vote, the Board recommended approval of the application. Members of the board voted to deny the applicant’s request and elected not to submit a minority report. The following documentary evidence pertaining to Docket Number BC- 2012-01883 was considered: Exhibit A. DD Form 149, dated 9 May 12, w/atchs. Exhibit B. Letter, AFPC/DPSIM, dated 16 Jul 12, w/atch. Exhibit C. Letter, AFPC/DPSID, dated 7 Aug 12. Exhibit D. Letter, SAF/MRBR, dated 27 Aug 12. Exhibit E. Letter, Applicant, dated 21 Sep 12. Exhibit F. Letter, SAF/IG, dated 27 Sep 12, w/atchs. Exhibit G. Letter, AFPC/DPSIM, dated 29 Jan 13. Exhibit H. Letter, AFMSA/SG3O, undated. Exhibit I. Letter, SAF/MRBC, dated 14 Feb 13. Panel Chair