RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-00454

	COUNSEL:

	HEARING: NO

APPLICANT REQUESTS THAT:

She receive a medical retirement instead of her administrative discharge.  

APPLICANT CONTENDS THAT:

The decision to administratively discharge her was unjust.  When she was being process for a medical board, her squadron initiated a dual action discharge for her physical fitness failure.  The medical board recommend she be medically retired; however, the Secretary of the Air Force [Personnel Council] (SAFPC) Board discharged her administratively.  The SAFPC Board based their decision on a memo for record (MFR) she signed 18 months prior to her medical board findings.  She was unaware how her medical issues and medications were limiting her ability to pass her physical fitness tests and feels the MFR she wrote prior to a better understanding of her medical conditions, should not have been grounds to deny her a medical retirement.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a former Air Force staff sergeant.  

From 14 Sep 10 through 15 Jan 13, the applicant failed six fitness assessments, received two referral enlisted performance reports, a letter of counseling and two letters of reprimand.  

On 12 Jul 12, the applicant, in response to a Letter of Reprimand for her fourth physical fitness failure in two years, stated, “I am ready to take responsibility for my failures.”

On 4 Feb 13, the applicant’s commander notified the applicant he was recommending she be discharged for failure to meet minimum fitness standards and on that same day, the applicant acknowledged receipt of the intended action.  

On 25 Apr 13, the applicant waived her right to a hearing before an administrative discharge board and waived her right to submit statements on her behalf.  

On 30 Apr 13, the applicant’s commander recommended to the discharge authority she be discharged for failure to meet minimum fitness standards.  

On 1 May 13, the wing Staff Judge Advocate found the discharge action to be legally sufficient as soon as she be found medically fit for separation.  

On 6 May 13, the wing commander approved the applicant’s administrative separation.

On 14 May 13, the medical group recommended the applicant be returned to duty.

On 22 Jun 13, the Medical Evaluation Board recommended she be referred to the Informal Physical Evaluation Board (IPEB).  

On 19 Dec 13, the IPEB recommended the applicant be discharged with severance pay with a combined compensable rating of 20 percent, stating the applicant’s “…pain prevents her from engaging in physical training and testing…unable to run which makes her unable to deploy.”  

On 2 Jan 14, the applicant did not agree with the IPEB findings and requested a formal hearing.

On 24 Jan 14, the Formal Physical Evaluation Board (FPEB) recommended the applicant be permanently retired with a combined compensable rating of 30 percent, stating “…her back condition is not projected to improve, and has inhibited her from successfully running any appreciable amount of distance, participation in a full Air Force fitness assessment, or being able to deploy.”  That same day, the applicant agreed with the FPEB findings.  

On 30 Apr 14, SAF/MRBP directed the applicant be discharged with a service characterization of honorable finding an administrative discharge was more appropriate than separation under the Disability Evaluation System.  

On 3 Jun 14, the applicant was honorably discharged with a narrative reason for separation of “physical standards” and credited with 9 years, 2 months, and 26 days of active service.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C and D.

AIR FORCE EVALUATION:

AFPC/DP2STM-SEP states the applicant was afforded due process, the discharge was consistent with the procedural and substantive requirements of the discharge instruction, was within the discretion of the discharge authority, and there was no evidence of an error or injustice in the discharge processing. 

The complete advisory is at Exhibit C.

The BCMR Medical Advisor recommends granting the applicant relief base upon an injustice.  The evidence for and against a retirement in relative balance, where there are multiple medical conditions, some unfitting and some not unfitting, matched against an unavoidable administrative action, likely driven largely by inactivity and body composition.  Additionally, while the SAFPC rationale used to execute the administrative discharge dismisses any possible causal or mitigating relationship between the applicant multiple medical issues and one or more fitness failures, its decision was made by subjectively weighing the nature and magnitude of the unsatisfactory performance [as more serious] against the [implicitly lesser] seriousness of the member’s medical conditions.  The applicant’s acceptance of full responsibility for the fitness failures was not, then, and is not, now, a consideration in the SAFPC decision to execute the administrative discharge nor is it relevant to any justification for overturning the decision of SAFPC.  To the contrary, in “dual-action” cases, the SAFPC searches for a causal or mitigating relation-ship between the policy violation and a medical condition. Where there is no relationship between the two, then execution of the approved administrative discharge takes precedence. Additionally, as in the case under review, the SAFPC considers the weight or gravity of the infractions against the weight or severity of the medical conditions, in rendering its decision. In this case, the SAFPC determined that the applicant’s administrative failures outweighed the medical issues, in a split vote to deny the medical retirement.  

An extract from AFI 36-2905, Air Force Fitness Program, states that exemption from at least one component of the fitness test for 12 or more months, mandates that the unit’s fitness program monitor (UPFM) will notify the commander, who in-turn is to request an exercise physiologist to review the case at the Deployment Availability Working Group (DAWG); which would then “assure that an appropriate medical evaluation is conducted, decide whether or not a medical evaluation board is required, and refer the case to the individual’s primary care mange for MEB initiation, or for additional medical work-up when necessary.”  It is pretty clear that the applicant’s providers consistently chose the latter, as noted in the plethora of referrals, diagnostic studies, and second opinions in the effort to either relieve the applicant of her symptoms or to identify a plausible cause of her symptoms.  Unfortunately for the applicant, the AFI also states that a unit may initiate administrative discharge after an Airman fails four unsatisfactory Fitness Assessment (FA) scores in a 24-month period.  Accordingly, the commander followed the established policies governing such failures; particularly since a medical provider was of the opinion that there were no medical conditions that prevented the applicant from achieving a passing FA score.

The applicant’s case was properly referred to the SAFPC for final adjudication and that the majority board properly exercised its function by recommending execution of the approved administrative discharge.  Therefore, the applicant was not deprived of due process in the discharge action and without obvious evidence of error or injustice.  

However, the Board may consider the adverse influence of the volume of medical issues, although most were not found unfitting, upon the applicant’s ability to achieve positive results with her fitness training and weight management.  It is also interesting to note that despite the obvious restrictions to performing certain components of the FA and the plethora of medical evidence, there is a scarcity of AF Forms 469, Duty Limiting Condition Reports, which, again, suggests the complicit avoidance of an MEB as long as possible.

The applicant has not met the burden of proof of procedural error, albeit with elements of a shared unintended, de facto, injustice to the applicant, by her retention [missing or delayed DAWG reviews] despite her physical limitations until Air Force policy forced confrontation with the administrative action.

The complete advisory is at Exhibit D.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 10 May 18 for comment (Exhibit E), and the applicant replied on 8 Jun 18.  In her response, the applicant provided correspondence from the Department of Veterans Affairs.  The applicant’s complete response is at Exhibit F.

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error or injustice.  While the Board notes the BCMR Medical Advisor’s recommendation to grant the applicant’s request based on an injustice, the Board concurs with the rationale and recommendation of AFPC/DP2STM-SEP and find the discharge was consistent with the procedural requirements of the discharge instruction and within the discretion of the discharge authority.  Furthermore, the Board notes the applicant was afforded due process throughout the discharge process.  While the Board notes the BCMR Medical Advisor’s comment that the volume of medical issues more likely than not adversely influenced the applicant’s ability to achieve positive results with her fitness training and weight management, the Board also noted that her she did have exemptions from certain elements of the fitness assessments based on her medical conditions and did not have medical conditions that precluded her from achieving a passing score in the non-exempt portion of the fitness assessment.  Therefore, the Board recommends against correcting the applicant’s records.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2017-00454 in Executive Session on 27 Jun 18 and on 10 Jul 18.

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 13 Feb 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2STM-SEP, dated 18 Oct 17.
Exhibit D:	Advisory opinion, BCMR Medical Advisory, 27 Feb 18.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 10 May 18.
Exhibit F:	Applicant’s Response, postmarked 8 Jun 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9 for Docket Number BC-2017-00454.