RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2018-01290

XXXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.	His Fitness Assessment (FA), dated 24 Jan 17 be declared void and removed from his records.  

2.	His subsequent demotion from technical sergeant (E-6) to staff sergeant (E-5) be reversed.

3.	Correct all adverse actions that occurred as a result of the FA failure to include; expunging his Unfavorable Information File (UIF) and 26 Jan 17 Letter of Reprimand (LOR) from his record; removing and re-initiating his Enlisted Performance Report (EPR) for period 30 Nov 16 thru 31 Jan 17; and providing supplemental promotion eligibility consideration for the 17E7 and all subsequent testing periods.    

APPLICANT’S CONTENTIONS

He was incorrectly measured at 38.00” on the abdominal circumference (AC) component of his FA, which caused him to have a failing score.  Immediately following the FA, he went to his Unit Fitness Program Manager (UFPM) and asked him to take his AC measurement.  As such, his UFPM measured the applicant at 36.5” and agreed that the measurement taken during the FA was incorrect.  These discrepancies meant the difference between an overall failing FA score of 73.5 or an overall passing score of 78.5.  Nevertheless, since this was his third failure in a 24-month period, his commander decided to demote him, which he believes was also unduly harsh.  In this regard, AFI 36-2905, Fitness Program, Table A14.2. has a list of options with regards to commanders' action and a demotion and establishment of an Unfavorable Information File (UIF) are amongst the most severe for a third FA failure.  Given the circumstances of this and his previous FA failures, he believes the demotion to be unjust.  

Furthermore, due to misinformation and a lack of guidance from AFPC, his local legal office, and other competent authorities regarding the appeal process, along with administrative delays that were no fault of his own, the 24-month window to appeal to his wing commander and the FAAB has expired.  He ultimately feels that his leadership has failed him and wishes to highlight the lack of transparency and injustice that he has encountered throughout this whole process. As such, he believes that he has completely exhausted all other avenues of appeal. 

In support of his appeal, the applicant provides a seven-page letter to the Board; a memorandum for record from his UFPM confirming the incorrect measurement; and copies of his military records, which includes the adverse actions from his FA failures.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an active duty Air Force staff sergeant (E-5).

According to documents provided by the applicant and in his military personnel record:

On 16 Jul 15, the applicant participated in a FA, attaining an overall composite score of 31.8.  Because the applicant did not meet the minimum cardio component score or the minimum composite score of 75.00, he received an overall fit level of “Fail.”  The applicant was credited with the following component scores:  Cardio – 13:39/0.00 points, Abdominal Circumference – 35.5”/17.60 points, Push-ups – 42/7.20 points, Sit-ups – 45/7.00 points.  

On 20 Jul 15, the applicant received a Letter of Counseling (LOC) for his 16 Jul 15 FA failure.

On 25 Nov 15, the applicant participated in a FA, attaining an overall composite score of 32.5.  Because the applicant did not meet the minimum cardio component score or the minimum composite score of 75.00, he received an overall fit level of “Fail.”  The applicant was credited with the following component scores:  Cardio – 15:10/0.00 points, Abdominal Circumference – 36.00”/17.00 points, Push-ups – 40/6.80 points, Sit-ups – 50/8.70 points. 

For period of report, 1 Dec 14 thru 30 Nov 15, the applicant received a referral Enlisted Performance Report (EPR) for failing to meet fitness standards. 

On 2 Dec 15, the applicant received a Letter of Reprimand (LOR) for his 25 Nov 15 FA failure.

On 24 Jan 17, the applicant participated in a FA, attaining an overall composite score of 73.5.  Because the applicant did not meet minimum composite score of 75.00, he received an overall fit level of “Fail.”  The applicant was credited with the following component scores:  Cardio – EXEMPT, Abdominal Circumference – 38.00”/14.40 points, Push-ups – 34/7.00 points, Sit-ups – 43/8.00 points. 

On 26 Jan 17, the applicant received a LOR for his 24 Jan 17 FA failure, which was his third failure in a 24-month period.  In addition, his commander notified the applicant of his intent to establish a UIF.   

On 27 Jan 17, the applicant responded to the LOR and contended that he was measured incorrectly and that his UFPM had measured his AC at 36” and 36.5.”

On 30 Jan 17, the applicant’s commander decided to establish a UIF and file the 26 Jan 17 LOR in the UIF. 

For period of report, 30 Nov 16 thru 31 Jan 17, the applicant received a referral Enlisted Performance Report (EPR) for failing to meet fitness standards. 

On 2 Feb 17, as noted in a “Legal Review of Demotion Action,” dated 13 Feb 17, the applicant’s commander recommended that the applicant be demoted to the rank of staff sergeant (E-5) for failing three FAs within a 24-month period and the action was found legally sufficient.

On 17 Feb 17, Special Order AA-10, dated 17 Mar 17 shows the applicant was demoted to the rank of staff sergeant (E-5).  

Starting with the applicant’s first FA failure, the applicant’s FA score history is as follows:

Date	Cardio	AC 	Push-ups	Sit-Ups	Composite 	
16 Jul 15	13:39/0.00	35.5/17.60	42/7.20	45/7.00	31.80/Fail	
25 Nov 15	15:10/0.00	36/17.00	40/6.80	50/8.70	32.50/Fail	
22 Feb 16	12:19/49.20	37/15.80	36/5.80	58/10.00	80.80/Satisfactory	
24 Aug 16	13:30/42.30	36.5/16.40	Exempt	59/10.00	76.33/Pass	
**24 Jan 17	Exempt	38/14.40	34/7.00	43/8.00	73.50/Fail	
20 Apr 17	Exempt	32.5/20.00	46/9.00	51/9.50	96.25/Pass	
18 Oct 17	12:31/49.2	32.5/20.00	Exempt	60/10.00	88.00/Pass	
18 May 18	Exempt	33/20.00	Exempt	55/10.00	100.00/Pass	
14 Nov 18	Exempt	35/20.00	45/8.90	41/7.00	89.75/Pass	
**Contested FA

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C and F.

APPLICABLE GUIDANCE

See Exhibit B for an excerpt from AFI 36-2905, Fitness Program, Table A14.2 which provides the suggested administrative and personnel actions for failing to attain physical fitness standards.

AIR FORCE EVALUATION

AFPC/DP2SSM, recommends partially granting the application to waive the 24-month appeal window and allow the applicant to appeal to the Fitness Assessment Appeals Board (FAAB). Although there is not a guarantee that the Installation Commander would approve the appeal and/or AFPC through the FAAB, there seems to be an injustice in the appeal process and the applicant was miscounseled.  Therefore, DP2SSM recommends allowing the applicant to re-apply for the appeal via the FAAB.  If the FAAB approves the applicant’s request, he may submit a BCMR for reinstatement of his promotion.  The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 18 Nov 19 for comment (Exhibit D), and the applicant replied on 4 Dec 19.  In his response, the applicant indicates that he intends to complete the appeal process through the FAAB.  

The applicant’s complete response is at Exhibit E.

ADDITIONAL AIR FORCE EVALUATION

AFPC/DP2SSM, recommends granting the application.  While they maintain the position that there is no guarantee the appeal would have been approved by the Installation Commander and/or the FAAB, there seems to be an injustice in the appeal process.  In addition, DP2SSM recommends that should the Board elect to remove the contested FA, then they should restore the applicant’s rank and remove the command directed evaluation.  The complete advisory opinion is at Exhibit F.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 15 Jan 20 for comment (Exhibit G), and the applicant replied on 1 Feb 20 and 5 Mar 20.  Initially the applicant requested that his case be administratively closed so that he could appeal to the FAAB; however, per his 5 Mar 20 response, he has now elected that his case continue to go to the Board.  In this regard, the applicant was still required to submit his appeal through his chain of command; however, it was determined that none of the commanders could rule on the appeal due to the distance and time removed from the initial events and demotion. Since the contested FA occurred under a different command and installation, which thereby precluded his current wing commander from providing an appeal recommendation and continued to prevent the FAAB from accepting his appeal, the applicant believes he has exhausted all avenues of relief.  

In support of his response, the applicant provide a letter from his squadron commander regarding his current command’s inability to support a record correction and e-mail traffic between himself and the FAAB.  

The applicant’s complete response is at Exhibit H and I.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

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

3.  After reviewing all Exhibits, the Board concludes the applicant is the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2SSM and also finds that the merits of the case further substantiate the applicant’s contentions.  Specifically, the applicant provided a memorandum from his Unit Fitness Program Manager (UFPM) affirming  his claim that he received an incorrect waist measurement of 38” instead of 36.5” during the contested fitness assessment (FA).  Furthermore, the Board notes the applicant was not properly counseled on the FA appeals process and was never afforded the opportunity to appeal to his installation commander and/or the Fitness Assessment Appeals Board (FAAB).  Given the difference in the contested waist measurements would have meant a passing score, the lengthy delay in the processing of the applicant’s appeal and the fact that the applicant has since passed every FA since the contested FA, the Board finds the evidence sufficient to grant the applicant’s request. Therefore, the Board recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

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 January 24, 2017 be declared void and removed from his records.

	b.  On February 17, 2017, he was not demoted to the grade of staff sergeant (E-5), but retained the rank of technical sergeant (E-6).

	c. The Letter of Reprimand (LOR) dated January 26, 2017 and the corresponding Unfavorable Information File (UIF) be declared void and expunged from his record.

	d.  The AF Form 910, Enlisted Performance Report, rendered for the period November 30, 2016 through January 31, 2017 for failing to meet fitness standards be declared void and removed from his records. 

	e.  The applicant be provided supplemental consideration for promotion to the grade of master sergeant for all appropriate cycles, beginning with cycle 17E7.

	If AFPC discovers any adverse factors during or subsequent to supplemental consideration that are separate and apart, and unrelated to the issues involved in this application, that would have rendered the applicant ineligible for this promotion, such information will be documented and presented to the Board for a final determination on the individual's qualifications for the promotion.

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-2018-01290 in Executive Session on 28 Apr 20:

, Panel Chair 
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 2 Feb 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SSM, dated 18 Nov 19.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 21 Nov 19.
Exhibit E:	Applicant’s response, dated 4 Dec 19.
Exhibit F:  Advisory opinion, AFPC/DP2SSM, dated 10 Jan 20.
Exhibit G:	Notification of advisory, SAF/MRBC to applicant, dated 15 Jan 20.
Exhibit H:	Applicant’s response, dated 1 Feb 20.
Exhibit I:	Applicant’s response, w/atchs, dated 5 Mar 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.