RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  01-00366
            INDEX NUMBER:  131.00

      XXXXXXXXXXXX     COUNSEL:  John F. Legris

      XXX-XX-XXXX      HEARING DESIRED:  Yes

_______________________________________________________________

APPLICANT REQUESTS THAT:

The letter  of  Reprimand  (LOR)  issued  to  him  on  13  Nov  97  for
unsatisfactory progress in  the  Weight  Management  Program  (WMP)  be
voided and removed from his records.

His promotion to technical sergeant (TSgt) (E-6) be restored and he  be
retroactively promoted with all backpay and benefits.

_______________________________________________________________

APPLICANT CONTENDS THAT:

Applicant’s counsel submitted  a  21-page  Brief  of  Counsel  with  17
exhibits to show that the applicant  suffered  an  injustice  when  his
squadron commander failed to completely implement  his  medical  waiver
from participation in the Air Force WMP and, subsequently issued him  a
LOR for unsatisfactory progress in the WMP resulting in  the  applicant
losing his promotion to TSgt.

Despite  strong  medical  evidence  showing  that  the  applicant   was
suffering from Major Depression  and  Fibromyalgia  and  was  therefore
unable to make  satisfactory  progress  in  the  WMP,  the  applicant’s
Squadron Commander, Group Commander, and Wing Deputy Inspector  General
failed to take corrective action  regarding  the  Squadron  Commander’s
decision.

The applicant’s physician issued him a  physical  profile  and  medical
waiver effective 28 Oct 97 to 17  Mar  98  that  was  accepted  by  the
applicant’s  squadron  commander  and  should  have   invalidated   the
applicant’s third unsatisfactory weigh-in that took place on 4 Nov 97.

The applicant’s commander’s decision  to  accept  the  profile  but  to
invalidate only the 15 Dec  97  weigh-in  can  only  be  considered  an
arbitrary  and  capricious  act  and  abuse  of  their  discretion   as
commander.

Counsel’s complete submission, with exhibits, is at Exhibit A.

_______________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty on 6 Dec 82.  A resume  of  his  last
ten Enlisted Performance Reports follows:

      Closeout Date               Overall Rating


       13 Feb 90                  4

       31 Dec 90                  4
       31 Dec 91                  5
       31 Dec 92                  5
       19 Jan 94                  5
       19 Jan 95                  5
       19 Jan 96                  5
       19 Jan 97                  5
       20 May 97                  5
       20 May 98                  4

According to a copy of the Air Force Form 393,  Individual  Record  for
Weight Management and Fitness Improvement Training  Programs,  provided
by the applicant, he was entered into Phase I of the WMP on 8 Sep 95 at
a weight of 299.5 pounds and 28% bodyfat, 50.5 pounds over his  maximum
allowable weight (MAW) (248 pounds) and two percent in  excess  of  his
maximum allowable bodyfat (MABF) (24%).  The applicant was required  to
lose a total of 5 pounds or 1% bodyfat  monthly  to  be  considered  as
making  satisfactory  progress.   The  applicant  had   the   following
scheduled weigh-ins with the results indicated:

Date Weighed    Weight/Bodyfat Gain/Loss   Actions Taken

      8 Oct 95           -7.25/-1%                    N/A
      8 Nov 95           +3.00                  Verbal Counseling
      8 Dec 95           -6.00                  N/A
      8 Jan 96           -1.25/-1%                    N/A
      8 Feb 96           +6.25                  Verbal Reprimand
      8 Mar 96           -7.75                  N/A
      8 Apr 96           -7.00                  N/A
      8 May 96           +1.75/-2%                    N/A
      7 Jun 96           +1.00/-1%                    N/A
      8 Jul 96            0.00/-1%                    N/A

       8  Aug  96           -1.00/-2%                    Entered  into
Phase II


  9 Sep 96           Meets Standards (MS)  N/A

  9 Oct 96           MS                         N/A
  9 Nov 96           MS                         N/A
  9 Dec 96           MS                         N/A

  9 Jan 97           MS                         N/A

  7  Feb   97           MS                           Entered   into
Probation
  4 Nov 97           +2% (2% over MABF)    LOR
 15 Dec 97           -2/+2%               No Action Taken

On 29 Aug 97, Doctor D______ evaluated the applicant and concluded that
due to social/mental stressors the applicant should be given a 3  month
deferral to adequately adjust and begin to bring down his  weight.   On
10 Sep 97, Doctor D________ evaluated the applicant again and this time
concluded that the applicant did not have  a  medical/physical  problem
justifying a waiver, but did qualify as having an  adjustment  disorder
which may have contributed to his lack of attention  to  WMP.   It  was
determined that it was  a  limited  condition  and  that  the  3  month
deferment should be cancelled and the applicant  instead  be  given  an
additional 45 days on a 30 day waiver scheduled to end 12 Sep 97.   The
release date of the new waiver was 27 Oct 97.

The applicant tested and was selected for promotion to TSgt during  the
97E6 cycle (15 Jan-15 Mar 97) with a scheduled pin on of 1 Jan 98.   On
4 Nov 97, the applicant failed his third weight check, received a  LOR,
and had his promotion to TSgt cancelled.  On 15 Dec 97,  the  applicant
failed his fourth weight check.  The applicant went in  to  see  Doctor
D__________ the same day to discuss  his  medical  condition,  problems
with the WMP, and consideration of a further extension  of  his  waiver
from  the  WMP.   Doctor  D_______  concluded  that  a  mental   health
evaluation, as he and  the  applicant  had  previously  discussed,  was
necessary and that based on the results he would  make  a  decision  to
backdate a profile on the applicant that would start with the end  date
of the previous waiver, 27  Oct  97.   The  applicant  was  seen  by  a
psychiatrist on 17  Dec  97  and  diagnosed  with  a  major  depressive
episode.  After receiving the results of the evaluation, Doctor D______
noted that in his opinion the diagnosis precluded  the  applicant  from
adequately attending to  issues  of  WMP,  i.e.  the  applicant  needed
treatment first and then should address issues  of  weight  management.
Doctor D______ then decided to issue the backdated profile.   Based  on
this profile, the applicant’s commander  did  not  take  administrative
action against him for the failed 15  Dec  97  weigh-in,  but  did  not
withdraw the actions taken for the 4 Nov 97 weigh-in.

The remaining relevant facts pertaining to this application,  extracted
from the applicant’s military records, are  contained  in  the  letters
prepared by the appropriate offices of the Air Force at Exhibits C.& E.

_______________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical Consultant evaluated this application  and  recommends
denial of the applicant’s request.

It has been pointed out by proper authority that a  commander  has  the
option  of  accepting  WMP  profiles,  and  records  show   applicant’s
commander took no action for  a  Dec  97  weigh-in  failure  after  the
controversial back-dated profile was issued.  Of  great  importance  to
this discussion is the fact that the applicant was able  to  reach  and
maintain standards for the year-and-a-half from Feb 96 to Aug 97,  even
though it was through this period that his mental  health  issues  were
occurring.  Application of a retroactive profile is an  action  fraught
with potential problems, as we now see, as the  applicant  had  already
managed to fail 2 weigh-ins before he decided he really might need help
from the mental health people.  Interestingly, in spite  of  this  help
and on-going therapy since, his weight continued to climb to levels  of
morbid obesity.  Indeed, in the  18  months  on  the  TDRL  his  weight
climbed another 30 pounds as noted in the TDRL evaluation performed  on
20 Mar 00.  While having the authority to rescind the  LOR  issued  for
the 4 Nov 97 WMP failure, applicant’s commander was  completely  within
her rights to not remove it from his file, and this withheld  promotion
was appropriate to the circumstances.

The complete evaluation is at Exhibit C.

AFPC/DPPD evaluated  this  application  in  regards  to  the  issue  of
disability processing and recommends denial of the applicant’s request.

The applicant has not submitted any material or documentation  to  show
he was improperly rated or processed under the provisions  of  military
disability laws and policy at the time of his disability retirement.

The complete evaluation, with attachments, is at Exhibit D.

The Air Force Personnel Center Staff Judge Advocate, AFPC/JA, evaluated
this application and recommends denial of the applicant’s requests.

The applicant was in a WMP probationary status when  he  was  found  to
exceed weight standards.  Based on Air Force guidance contained in  AFI
40-452, The  Weight  management  Program,  dated   7  Nov  94,  he  was
reentered into Phase I of the WMP.  The  AFI  provides  that  the  unit
commander  may  approve  a  temporary  medical  deferral  for  Phase  I
participants when recommended by a  medical  practitioner.   A  medical
practitioner and the unit commander must approve the deferral.  In  the
applicant’s case,  he  received  the  medical  practitioner’s  approval
through a backdated medical deferral.  However, his commander opted not
to approve the deferral.  Since the applicant did not have the approval
of both the medical practitioner and his commander, he did not  have  a
valid medical deferral and  he  incurred  the  consequential  personnel
actions.   The  commander’s  actions  were  not  in  violation  of  the
instruction.  There is  no  evidence  that  the  commander  abused  her
discretion in not accepting a backdated medical deferment.

The complete evaluation is at Exhibit E.

AFPC/DPSFM evaluated this application in regards to the  administration
of the WMP.  Although the WMP AFI does not mandate commanders to accept
medical profiles, they are encouraged to accept them  so  that  in  the
event the commander later has to administratively demote or separate  a
member based on failure in the WMP, a case can be presented  for  legal
review that shows the commander had always given the member the benefit
of  the  doubt.   Acceptance  of  the  medical  profile  also  protects
commanders in the event their personnel truly have a medical  diagnosis
that seriously precludes a member from losing weight.  However,  it  is
ultimately the commander’s decision to accept or not accept a  profile.
Attempts were made to contact the applicant’s commander  to  gain  more
insight on why she chose to not accept the profile  for  the  backdated
period, assuming she may have  more  information  that  she  based  her
decision on. However, she is no longer in the Air Force.

In this case, the  member  did  have  sufficient  medical  problems  to
warrant a decision to be medically  retired  by  a  Medical  Evaluation
Board.  Their review of the applicant’s records indicates that the  WMP
was administered correctly.

The complete evaluation, with attachments, is at Exhibit F.

AFPC/DPPPWB  evaluated  this  case  in  regards  to   the   applicant’s
promotion.  They defer  to  the  recommendations  made  by  AFPC/DPSFM,
AFPC/JA, and the BCMR Medical Consultant.

The complete evaluation, with attachments, is at Exhibit G.

_______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s  counsel  responded  to  the  Air  Force   evaluations   by
indicating that the applicant disagrees with the conclusions reached in
them.  He also indicated that the applicant rests  his  case  upon  his
complete application including the Brief of Counsel  and  its  attached
exhibits and has no further documentation to present to  the  Board  at
this time.

Finally, counsel indicates that AFPC/DPFSM referenced the wrong edition
of AFI 40-502 in their evaluation and points  out  differences  in  the
language between the two related to the requirement to  not  measure  a
member while they are in weight status code 5.

The complete evaluation is at Exhibit I.
_______________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by  existing  law
or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been  presented  to  demonstrate
the existence of probable error or injustice.  We took  notice  of  the
applicant's complete submission in judging  the  merits  of  the  case;
however, we agree with the opinions  and  recommendations  of  the  Air
Force offices of primary responsibility and adopt  their  rationale  as
the basis for our conclusion that the applicant has not been the victim
of an error or injustice.  While it does appear that the applicant  had
medical problems that impacted his ability to meet and maintain  weight
standards, it also appears that  he  contributed  to  the  problems  he
encountered with his medical waiver.  We note that  he  was  given  the
opportunity to consult with mental health personnel prior  to  his  two
unsatisfactory  weigh-ins  and  could  have  avoided  the  need  for  a
retroactive waiver.   While  we  can  only  speculate  as  to  why  the
commander chose not to accept the  waiver  for  the  applicant’s  first
failed weigh-in, it is clear that she did not violate Air Force  policy
in her decision and thus, no error or injustice  occurred.   Therefore,
in the absence of evidence to the contrary, we find no compelling basis
to recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has  not  been
shown  that  a  personal  appearance  with  or  without  counsel   will
materially add to our understanding of the issue involved.   Therefore,
the request for a hearing is not favorably considered.

_______________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did   not
demonstrate the existence of probable material error or injustice; that
the application was denied without a personal appearance; and that  the
application will only be reconsidered  upon  the  submission  of  newly
discovered relevant evidence not considered with this application.

_______________________________________________________________

The following members of  the  Board  considered  this  application  in
Executive Session on 12 December 2001, under the provisions of AFI  36-
2603:

      Mr. Henry Romo, Jr., Panel Chair
      Mr. Patrick R. Wheeler, Member
      Mr. Roscoe Hinton, Jr., Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 25 Jan 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, BCMR Medical Consultant,
                Dated 3 May 01.
    Exhibit D.  Memorandum, AFPC/DPPD, dated 6 Jun 01, w/atchs.
    Exhibit E.  Memorandum, AFPC/JA, dated 23 Aug 01.
    Exhibit F.  Memorandum, AFPC/DPSFM, dated 11 Oct 01,
                w/atchs.
    Exhibit G.  Memorandum, AFPC/DPPPWB, dated 17 Oct 01,
                w/atchs.
    Exhibit H.  Letter, SAF/MIBR, dated 26 Oct 01.
    Exhibit I.  Letter, Applicant’s Counsel, dated 27 Nov 01.




                                   HENRY ROMO, JR.
                                   Panel Chair