RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03700 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: 1.  The 6 Apr 12 failed Fitness Assessment (FA) be removed from her records (administratively resolved). 2.  The referral Enlisted Performance Report (EPR), rendered for the period 14 Feb 11 through 12 Apr 12, be removed from her military personnel records. 3.  Reinstatement of her selection for promotion to the grade of master sergeant (E-7) for cycle 12E7. APPLICANT CONTENDS THAT: She had a medical condition at the time she took her FA on 6 Apr 12, which prevented her from successfully completing the sit-up component of the test. She should have been exempt from that component. She was pressured by her supervisor to take the FA without regard to the possibility of further injury, or she would receive a “not current” status on the FA test. Her medical conditions were ignored for seven months, resulting in a referral EPR which directly impacted her career by causing her promotion to the grade of master sergeant to be withheld. She has been misguided through this whole process. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 20 Apr 94. On 15 Jul 11, the applicant successfully passed her FA attaining a score of 85.50. She was exempted from doing cardio, push-ups and sit-ups during this FA. On 6 Apr 12, the applicant participated in the contested FA attaining a score of 77.67, which constituted an unsatisfactory assessment. She was not exempted from doing sit-ups. On 12 Apr 12, the contested EPR was referred to the applicant for a “does not meet” standards rating for Fitness and comments related to her not having a current FA assessment on file at the time of the contested EPR closeout. On 24 Apr 12, the applicant responded to her supervisor regarding the contested EPR. Her response outlined the actions taken and medical care rendered since 2 Mar 12, to address her medical conditions. She provided medical articles describing the symptoms of Irritable Bowel Syndrome (IBS), a condition she was diagnosed with in late Mar 12, and the side effects of medicine prescribed to treat IBS. She also contended that she felt compelled to take the 6 Apr 12 FA because her supervisor stated that if she did not pass or take the FA, he would press with the referral EPR. She closed her response saying that her primary/additional duty performance was indicative of “clearly exceeding standards” versus the “above average” the contested report reflected. On 24 Apr 12, the contested referral report was rendered upon the applicant. The applicant’s aforementioned response was acknowledged by her leadership chain; Section III, Performance Assessment, Primary/Additional Duties of the contested EPR was upgraded to “clearly exceeds.” On 23 Jul 12, 28 Jan 13, and 16 Jul 13, the applicant successfully passed subsequent FAs. She was exempted from doing cardio, push-ups and sit-ups during these FAs. On 17 Dec 13, the pertinent Air Force Fitness Management System (AFFMS) records were updated to reflect the FA dated 6 Apr 12 was removed. On 28 Dec 13, the applicant was relieved from active duty and, effective 29 Dec 13, placed on the temporary disability retired list (TDRL) in the grade of technical sergeant (E-6), with compensable percentage for physical disability of 80 percent. She was credited with 19 years, 8 months, and 9 days of active service. On 14 Oct 14, the applicant requested her case be administratively closed (Exhibit G). On 10 Nov 14, AFBCMR administratively closed her case (Exhibit H). On 14 Jan 15, the applicant requested her case be reopened. She provided a detailed recap of her contentions that her medical needs were disregarded, and a letter from her doctor’s office manager during the matter in question, supporting her contention that her doctor was unable to meet her medical needs for an earlier appointment due to the fact he was relocating his office (Exhibit I). On 20 Jan 15, AFBCMR emailed the applicant requesting a copy of her AFFMS printout reflecting the 6 Apr 12 FA score that would show how many sit-ups she was credited with and whether or not she was exempt from other components of the test (Exhibit J). On 29 Jan 15, the applicant replied that she could not locate the actual 6 Apr 12 FA test results. She stated that she was exempt from all components of the test except for sit-ups, and she remembered she was credited with 11 sit-ups. She reiterated that the reason for her going non-current in her FA was due to her inability to get an appointment to see her orthopedic surgeon (Exhibit K). 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, E, and L. AIR FORCE EVALUATION: AFPC/DPSIM did not provide a recommendation. However, after a thorough review of the documentation provided by the applicant, they found sufficient evidence to support the applicant’s request to remove her 6 Apr 12, failed FA from her FA record. Her unit commander and primary care manager supported her request to remove the FA dated 6 Apr 12, from AFFMS. On 17 Dec 13, the pertinent AFFMS records were updated to reflect the applicant’s FA dated 6 Apr 12, was removed. A complete copy of the AFPC/DPSIM evaluation is at Exhibit C. AFPC/DPSID recommends denial indicating there is no evidence of an error or an injustice warranting removal of the contested EPR. The applicant did file an appeal through the Evaluation Report Appeals Board (ERAB) under the provisions of AFI 36-2401, Correcting Officer and Enlisted Evaluation Reports; however, without the removal of the contested FA, no action was able to be taken. The applicant contends that the contested EPR was unjust based on a medical condition that would have prevented her from successfully completing the sit-up component of the FA. In this specific case, the applicant received the contested EPR based on the fact at the time of close out she not only had a failed FA, she was also non-current. Her last FA was 15 Jul 11, making the next FA due no later than 31 Jan 12. Despite her commander’s success at getting a 59 day extension on her EPR close out date due to a pending medical diagnosis; in this case not only did the applicant fail her 6 Apr 12 FA, she remained non-current. Due to the report closing out 12 Apr 12, without a current FA, the applicant’s rating chain had absolutely no choice, by AFI, but to refer the evaluation. In accordance with AFI 36-2905, Fitness Program, paragraph 2.31.2.3, “Remaining current as defined in paragraph 3.12. Failure to remain current, as well as failure to attain a passing score on the applicable FA before the end of any evaluation reporting period, will result in a “DOES NOT MEET STANDARDS” rating on the OPR/EPR.” The 59 day extension to the closeout does not change the original requirement to test by 31 Jan 12. 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 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. Therefore, AFPC/DPSID concluded that the contested EPR as rendered was accurate and in accordance with applicable Air Force policies and procedures. A complete copy of the AFPC/DPSID evaluation is at Exhibit D. AFPC/DPSOE recommends denial indicating there is no evidence of an error or an injustice warranting reinstatement of the applicant’s line number for E-7. The applicant was considered and tentatively selected for promotion to E-7 during cycle 12E7. She received a promotion sequence number 1273.0 which incremented 1 Oct 12. However, she became ineligible when she received the referral EPR for the period 14 Feb 11 through 12 Apr 12 based on her failure to have a current FA test at time of closeout. 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 16 Sep 14 for review and comment within 30 days (Exhibit F). On 14 Oct 14, the applicant requested to administratively close her case to allow her time to acquire additional supporting documentation. ADDITIONAL AIR FORCE EVALUATION: AFBCMR Medical Consultant supports the applicant’s contention for removing the FA failure of 6 Apr 12 from the record and consideration for mitigating the lack of FA currency. The Medical Consultant noted the applicant’s contention of her PCM’s insensitivity, and perception that the applicant was using her medical complaints as an excuse to avoid testing, however, the objective evidence of the medical records revealed a reasonable effort on the PCM’s part to eradicate the applicant’s physical complaints through various diagnostic tests, treatments, and specialty referrals. While this case focuses on the applicant’s petition for removal of her FA failure, it should be noted that she was concurrently the subject of a Medical Evaluation Board (MEB) (Nov 12) due to ongoing mental health issues (Post-Traumatic, Stress Disorder (PTSD)), chronic left knee pain due to degenerative joint disease, a left wrist pain following removal of a ganglion cyst, which resulted in the applicant being placed on the TDRL with a 70 percent rating for the PTSD, a 10 percent rating for left wrist pain, and a 10 percent rating for left knee degenerative joint disease. Her 6 Apr 12 FA failure appeared to be related to abdominal pain, but has been retrospectively attributed to a hip labral tear by an orthopedic surgeon. The preponderance of evidence from a Dec 12 MRI scan and thereafter indicated that the applicant should have been exempt from performing sit-ups due to the labral tear. Had this exemption been in place prior to 6 Apr 12, the applicant would have passed her FA prior to the EPR close-out date, negating the requirement for the referral EPR. Regarding the matter of FA currency, the Medical Consultant opined that had the applicant passed the 6 Apr 12 FA, this would have given her a current satisfactory FA prior to her EPR close-out date, however, since the Fitness Assessment Appeals Board directed that the 6 Apr 12 FA be removed from the applicant’s AFFMS records, this results in an injustice to the applicant. A complete copy of the BCMR Medical Consultant evaluation is at Exhibit L. APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the Additional Air Force evaluation was forwarded to the applicant on 26 May 15 for review and comment within 30 days (Exhibit M). 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 injustice. After a thorough review of the evidence of record and the applicant’s complete submission, we believe the applicant is the victim of an injustice. While we note the comments of AFPC/DPSID and AFPC/DPSOE indicating that relief should be denied because the applicant failed to have a current FA test at time of closeout, we believe a preponderance of the evidence substantiates that corrective action is warranted. In this respect, AFPC/DPSIM, determined after a thorough review of the documentation provided by the applicant, there was sufficient evidence to support the applicant’s request to remove the contested failed FA from her Air Force Fitness Management System (AFFMS) records and, on 17 Dec 13, removed the contested FA from the pertinent AFFMS records. The AFBCMR Medical Consultant opined that the preponderance of evidence from the Dec 12 MRI scan and thereafter indicated the applicant should have been exempt from performing sit-ups due to her labral tear (hip problem), and, at least temporarily, the applicant could have been exempted from performing the sit-ups due to her recalcitrant abdominal complaints as well. Accordingly, we find it reasonable to conclude that had she been properly exempted from the sit-up component of the FA in question, she would have passed the FA, thus nullifying the basis for the subsequent referral enlisted performance report (EPR). Therefore, we believe it appropriate to recommend the contested EPR be declared void and removed from the applicant’s records and that her records be further corrected to reflect that she was promoted to the grade of master sergeant when she would have been were it not for the referral EPR. Therefore, 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: 1.  The Enlisted Performance Report (AB thru TSgt), AF Form 910, rendered for the period 14 February 2011 through 12 April 2012, and all corresponding attachments be declared void and removed from her records. 2.  She was promoted to grade of Master Sergeant (E-7) with a date of rank and effective date of promotion of 1 October 2012. The following members of the Board considered AFBCMR Docket Number BC-2013-03700 in Executive Session on 12 Aug 15, under the provisions of AFI 36-2603: All members voted to correct the records as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-03700 was considered: Exhibit A.  DD Forms 149, dated 1 Aug 13, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Memorandum, AFPC/DPSIM, dated 17 Dec 13. Exhibit D.  Memorandum, AFPC/DPSID, dated 1 Aug 14. Exhibit E.  Memorandum, AFPC/DPSOE dated 20 Aug 14. Exhibit F.  Letter, SAF/MRBR, dated 16 Sep 14. Exhibit G.  Letter, Applicant, dated 14 Oct 14. Exhibit H.  Letter, AFBCMR, dated 10 Nov 14. Exhibit I.  Letter, Applicant, dated 14 Jan 15. Exhibit J.  Email, AFBCMR, dated 20 Jan 15. Exhibit K.  Email, Applicant, dated 29 Jan 15. Exhibit L.  Memorandum, BCMR Medical Consultant, dated 6 May 15. Exhibit M.  Letter, SAF/MRBR, dated 26 May 15.