RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00167

XXXXXXXXXXXXXX	COUNSEL: NONE	 

  	HEARING REQUESTED: NO 	

APPLICANT’S REQUEST

His referral officer performance report (OPR) for the period ending 18 Apr 13 be void and removed from his record.

APPLICANT’S CONTENTIONS

It was a good OPR with the exception of “Does Not Meet Standards” for fitness assessment (FA) being checked, which rendered it as a referral report.  He suffered a sprained ankle during the run portion of the FA on 15 Mar 13.  He notified the fitness assessment center (FAC) staff and his chain of command.  He was informed he would be rescheduled in a week; however, the failed FA was recorded.  His ankle was not rehabilitated and he was not afforded a retest before the close out of the report.  AFI 36-2406, Officer and Enlisted Evaluation Systems, states unit commanders may request close out date extensions of up to 59 calendar days to ensure resolution of administrative or significant issues and reasonable requests for an extension of the time limit should be approved.

He provides a medical record note dated 15 Mar 13, showing he was seen in the clinic for his sprained ankle during his FA.  The sprain occurred on the third lap and he continued to bear weight and kept running.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force Reserve captain (O-3).

The applicant’s AF Form 707, Officer Performance Report (Lt thru Col), for the reporting period of 19 Apr 12 to 18 Apr 13, reflects he received a “Does Not Meet Standards” rating for not having a passing FA at the close out of the report.  In his rebuttal response, he stated he sprained his ankle during the run portion and was unable to secure his run time.  He went to the clinic and received medical treatment for a severe sprain and was placed in an air cast and put on profile.  

The applicant did not provide and his automated records management system (ARMS) record did not contain any AF Form 469, Duty Limiting Condition Report or AF Form 422, Notification of Air Force Members Qualification Status, to show he was placed on any duty or mobility restrictions for FA or was on any medical profile for his ankle sprain.   

On 24 Sep 15, ARPC notified the applicant he was assigned to the Individual Ready Reserve (IRR) in the Non-obligated Non-participating Ready Personnel Section (NNRPS).  Maximum retention in the NNRPS is two years and accordingly he would be discharged from the Air Force Reserve in six months.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the applicable authority/guidance at Exhibit C.

APPLICABLE AUTHORITY/GUIDANCE

AFI 36-2406, Officer and Enlisted Evaluation Systems, paragraph 1.4.10.3.2, Comments on members not meeting current fitness standards are authorized on the AF Form 709.

AFI 36-2406, paragraph 1.10.3, Any comments that are derogatory in nature, imply or refer to behavior incompatible with, or not meeting minimum acceptable standards require the report to be referred.  Any officer who fails to meet standards in any of the listed performance factors, will receive an overall evaluation of “Does Not Meet Standards.”

AFI 36-2406, paragraph 10.1.4, Retired or separated personnel are not eligible to apply for correction of their evaluation through the evaluation reports appeal board (ERAB) and must submit a DD Form 149, Application of Correction of Military Record, to the BCMR.  

AFI 36-2905, Fitness Program, paragraph 3.13, Illness or Injury.  If an airman becomes ill or injured during the FA, the airmen must notify the Fitness Assessment Center (FAC) staff and their chain of command immediately.  

FINDINGS AND CONCLUSION
	
1.  The application was not 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 not the victim of an error or injustice.  The applicant contends he failed his FA on 15 Mar 13 due to a sprained ankle; therefore, the referral OPR ending 18 Apr 13 for FA failure was unjust and should be removed from his record.   However, the applicant has provided insufficient evidence to substantiate the referral OPR for FA failure was completed in violation of AFI 36-2406 or AFI 36-2905.  In this respect, the applicant has not provided any evidence to show he was placed on any medical profiles or exempted from any components of the FA, scheduled for any re-tests and provides no corroborating evidence from his chain of command in support of his request.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery within the three-year limit, the Board does not find the assertion supported by a preponderance of the evidence.  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2021-00167 in Executive Session on 18 Aug 21:

 , Panel Chair
 , Panel Member
 , Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 24 Nov 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	 Applicable Guidance, Excerpt AFI 36-2406 and AFI 36-2905.

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.