RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-04469 COUNSEL: HEARING DESIRED: NO APPLICANT REQUESTS THAT: 1. His four Fitness Assessment (FA) failures be removed from his records. Although the applicant requests relief for four FA failures, only three appear in his AFFMS record he provided as being unsatisfactory. The applicant is now retired and his AFFMS record is not available for review (administratively resolved). 2. The Enlisted Performance Reports (EPR), rendered for the periods 19 Feb 10 thru 18 Feb 11, and 19 Feb 11 through 18 Feb 12, be declared void and replaced with the reports he provided. 3. His promotion selection to the grade of master sergeant (E-7) for cycle 11E7 be reinstated with an appropriate date of rank (DOR). 4. His records be corrected to reflect he was retired in the grade of master sergeant (E-7), instead of technical sergeant (E-6). APPLICANT CONTENDS THAT: In Oct 2010, he began experiencing severe pain in his feet, ankles, knees, wrists, right elbow, and lower left portion of his back. His condition was such that he was exempt from the cardio, sit-up, and push-up components of the FA. As a result of his medical condition he was unable to maintain a regular exercise regimen; therefore, he gained weight, ultimately resulting in the contested FA failures as he could not achieve a passing score on the abdominal circumference (AC). His medical provider should have exempted him from all components of the FA, but, because he did not, the applicant has suffered crushing disappointment. His referral EPRs were a result of the FA failures. The applicant’s EPRs reveal that he was an airman with the highest possible ratings in the performance of his primary and additional duties, training requirements, and teamwork and followership. The only place on either EPR where it is indicated he did not meet standards was in the fitness area. The applicant’s rater, additional rater, and reviewer have each signed substitute EPRs to replace the contested EPRs. His promotion was taken away due to no fault of his own; he and his family have sacrificed in support of his service. A printout of the pertinent master sergeant selects list reflects the applicant’s 2011 selection for promotion to the grade of master sergeant with an applicable line number. Based on that line number, he anticipated sewing on the stripe he earned 1 Nov 11. He hopes the Board can appreciate what it means to earn the stripes of a master sergeant after a career of dedicated service and sacrifice. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant served in the Regular Air Force in the grade of technical sergeant (E-6) during the matter under review. On 16 Nov 10, an AF Form 469, Duty Limiting Report, was initiating describing duty and mobility restrictions pertaining to the applicant. The form was signed on 21 Dec 10 and was continuously extended, listing the applicant’s restrictions based on his medical condition. On 14 Dec 10, the applicant participated in the contested FA where he failed to attain the minimum score in the AC component of the FA and attained an overall composite score of 26.50, resulting in an unsatisfactory rating. The applicant was exempt from the cardio, sit-up, and push-up components. On 8 Mar 11, the applicant’s rheumatologist indicated in a memorandum that the applicant was under his care for inflammatory arthritis that requires aggressive treatment options. Additionally, he stated the applicant’s symptoms had been ongoing for months and very well may have affected his ability to perform at his maximum during his last FA. On 5 May 11, an email communiqué indicates that the applicant was denied the option to be exempted from the AC measurement of the FA, and a Medical Evaluation Board was recommended from the Medical Standards division within the Military Treatment Facility (MTF). On 26 May 11, the applicant’s rheumatologist indicated in a memorandum that he conducted a medical examination and the applicant had conditions that preclude him from achieving a passing score on the FA. On 28 Jun 11, the EPR, rendered for the period 19 Feb 10 through 18 Feb 11, was referred to the applicant for a “does not meet” standards rating and comments in Block III, Fitness. On 2 Sep 11, the applicant participated in the contested FA where he failed to attain the minimum score in the AC component and attained an overall composite score of 0.00, resulting in an unsatisfactory rating. The applicant was exempt from the cardio, sit-up, and push-up components. On 1 Dec 11, the applicant participated in the contested FA where he failed to attain the minimum score in the AC component and attained an overall composite score of 0.00, resulting in an unsatisfactory rating. The applicant was exempt from the cardio, sit-up, and push-up components. On 2 Aug 12, the EPR, rendered for the period 19 Feb 11 through 18 Feb 12, was referred to the applicant for a “does not meet” standards rating and comments in Block III, Fitness. On 14 Dec 12, the Informal Physical Evaluation Board (IPEB) found the applicant unfit for continued military service and recommended he be permanently retired for physical disability with a combined compensable disability rating of 40 percent. On 28 May 13, the applicant was relieved from active duty and permanently retired for physical disability. On 14 Feb 14, the Fitness Assessment Appeals Board (FAAB) directed that the applicant’s pertinent AFFMS records be updated to reflect the FAs dated 14 Dec 10, 2 Sep 11, and 1 Dec 11 be removed. The FAAB also indicated AFPC Special Programs has attempted to update AFFMS; however, the AFFMS record is no longer available because the applicant has retired. The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility (OPR) which are included at Exhibits B, C, and D. AIR FORCE EVALUATION: AFPC/DPSIM indicates their office is unable to provide relief to the applicant due to the fact that he is now retired and his record is no longer available in AFFMS to remove the contested FAs. He contends he had a medical condition that precluded him from achieving a passing FA scores since Oct 2010; he provided multiple AF Forms 469, and two memorandums from a medical provider stating that there are medical conditions that preclude him achieving a passing score. A complete copy of the AFPC/DPSIM evaluation, with attachments, is at Exhibit B. AFPC/DPSID recommends approval of the applicant’s request to substitute the contested EPRs. Due to the applicant no longer being on active duty, he could not file an appeal through the Evaluation Report Appeals Board (ERAB). The applicant provided medical documentation supporting his contention that his condition precluded him from attaining passing scores on the contested FAs and also provided two substitute reports signed by all of the original evaluators with memorandums supporting his request to substitute the contested EPRs. Therefore, as it appears the FA failures were the result of a condition for which he was permanently disability retired, these referral EPRs should be substituted with the revised versions he has provided in accordance with applicable Air Force policies and procedures. A complete copy of the AFPC/DPSID evaluation is at Exhibit C. AFPC/DPSOE has no equity in the decision; however should the applicant’s request to substitute the referral EPRs with non- referrals be granted, the applicant’s promotion to master sergeant for cycle 11E7 should be reinstated with an effective date of rank of 1 Nov 11. The applicant was considered and tentatively selected for promotion to master sergeant during cycle 11E7. He received promotion sequence number (PSN) 2767.0, which incremented 1 Nov 11; however, because he received a referral EPR, he became ineligible for promotion and his line number was removed in accordance with applicable policies and procedures. A complete copy of the AFPC/DPSOE evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant indicates that based on the three advisory opinions and FAAB decision, equity and justice require his requests to be approved. He recommends that Board adopt each of recommendations and approve removal of the FA failures, substitute the referral EPRs with non-referral EPRs provided, reinstate his promotion to master sergeant with the date of rank effective 1 Nov 11, and his retirement grade retroactively corrected to the grade of master sergeant as per the applicable policies and procedures. The applicant’s complete response, with attachments, is at Exhibit E. 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 that the applicant is the victim of an error or injustice. The applicant contends that he had a medical condition that precluded him from attaining passing scores on the contested fitness assessments (FA) and, as a result, he was unjustly issued two referral enlisted performance reports (EPR) and deprived of his promotion to master sergeant (E-7). After a thorough review of the evidence of record and the applicant’s complete submission, we agree. In this respect, we note that the Fitness Assessment Appeal Board (FAAB) has determined that the medical condition for which the applicant was ultimately permanently disability retired unfairly precluded him from attaining overall passing scores. Therefore, in view of the fact that these FA failures were the sole basis for the contested EPRs to be referred to the applicant, we believe the contested referral EPRs should be replaced with the versions provided by the applicant, which have been signed by the original rating chain. Furthermore, because the referral EPRs rendered the applicant ineligible for promotion, we believe it is also appropriate to restore the applicant’s promotion to the grade of master sergeant (E-7), effective 1 Nov 11, and correct his records to reflect he retired in said grade. 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: a. The Enlisted Performance Reports (EPR), rendered for the periods 19 Feb 10 thru 18 Feb 11 and 19 Feb 11 through 18 Feb 12, be declared void and replaced with the reports provided. b. He was promoted to the grade of master sergeant (E-7), effective and with a date of rank (DOR) of 1 Nov 11. c. His records be corrected to reflect that on 29 May 13, he was permanently retired for physical disability in the grade of master sergeant (E-7), instead of technical sergeant (E-6). The following members of the Board considered AFBCMR Docket Number BC-2013-04469 in Executive Session on 24 Sep 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-04469 was considered: Exhibit A. DD Form 149, dated 7 Sep 13, w/atchs. Exhibit B. Letter, AFPC/DPSIMC, dated 23 Jan 14, w/atch. Exhibit C. Letter, AFPC/DPSID, dated 11 Apr 14. Exhibit D. Letter, AFPC/DPSOR, dated 30 Apr 14. Exhibit E. Letter, SAF/MRBR, dated 20 May 14. Exhibit F. Letter, Applicant’s Counsel, dated 16 Jun 14.