RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER: BC-2013-00324
								 
	XXXXX
    							COUNSEL: 	NONE 

								HEARING DESIRED: NO 


________________________________________________________________

APPLICANT REQUESTS THAT:

1.	All Fitness Assessment (FA) failures up to April 2012 be removed from the Air Force Fitness Management System (AFFMS)
(Resolved administratively – On 24 November 2013, the Fitness Assessment Appeals Board (FAAB) voided the FAs, dated 26 Aug 04, 21 Jul 05, 21 Feb 06, 4 Apr 08 and 14 Oct 09.)

2.	The Referral Enlisted Performance Report, rendered for the period 5 March 2010 through 4 March 2011, be declared void and removed from her records.

3.	Her line number for promotion to the grade of master sergeant (E-7), with a date of rank (DOR) of 1 December 2011 for cycle 11E7, be restored.

________________________________________________________________

APPLICANT CONTENDS THAT:

The referral report should be removed based on errors and her line number to master sergeant and original DOR, be restored since the referral report was the basis for pulling her line number.

She attempted to accomplish her fitness assessment prior to the close-out date of the contested report; however, due to the inability of the medical community to diagnose her condition, she was unable to do so.

She attempted to get an extension of the close-out date in order to obtain an updated AF Form 469, Duty Limiting Condition Report, for medical complications that arose during her fitness assessment window; however, the request was denied.  As a result, the report was a referral based on the comment in Block 3, Fitness, “Not current at EPR close out due to circumstances beyond her control.”  After she provided her response to the referral, the report was re-accomplished and changes were made without her knowledge.  Specifically, the comment in Block 3, Fitness, now stated, “Not current at EPR close out,” and the X marks on the report referred to her were now check marks.  She was denied an opportunity to provide a response to the re-accomplished referral report, in violation of AFI 36-2406, paragraph 3.9.11.

The applicant’s complete submission, with attachments, is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving on active duty in the grade of technical sergeant (E-6).

On 5 January 2010, she was evaluated for shortness of breath while exercising since 2006 and a dry cough since 15 December 2009 and was prescribed Albuterol.

According to the Air Force Fitness Management System, the applicant completed a Fitness Assessment on 2 February 2010, attaining an overall fitness level of good.

On 5 April 2010, she was again evaluated for shortness of breath while exercising and based on the diagnosis of exercise-induced asthma, was prescribed Levalbuterol.

On 14 July 2010, she was treated for severe knee pain and swelling of the knee.  Based on the diagnosis of tendonitis, she was prescribed Naproxen and referred for physical therapy three times a week for four weeks.

On 3 August 2010, she underwent dental surgery and placed on quarters.  

On 9 September and 12 October 2010, her knee was re-evaluated and she was continued on physical therapy three times a week for four weeks.

On 26 October 2010, she was seen by her primary care manager, requesting a profile for her bilateral knee pain.

On 3 November 2010, an AF Form 469, Duty Limiting Condition Report, was prepared restricting her from flexing, extending, or rotating lower extremities beyond that required for administrative duties; no high impact aerobic activities or jumping, and no unnecessary flexion of torso beyond that required for administrative duties, with a release date of 2 January 2011.

On 16 November 2010, she underwent surgery (hysterectomy and fibroid removal) and was discharged from the hospital on 17 November 2010. 

On 6 December 2010, her knee was re-evaluated by the physical therapist and she was referred to her primary care manager for referral for Magnetic Resonance Imaging (MRI) to determine was her knee was not heeling.

On 4 January 2011, an AF Form 469, Duty Limiting Condition Report, was prepared restricting her from flexing, extending, or rotating lower extremities beyond that required for administrative duties; no high impact aerobic activities or jumping, and no unnecessary flexion of torso beyond that required for administrative duties, with a release date of 3 February 2011.

On 9 February 2011, an AF Form 469, Duty Limiting Condition Report, was prepared restricting her from flexing, extending, or rotating lower extremities, no high impact aerobic activities or jumping, and no unnecessary flexion of torso beyond that required for administrative duties, with a release date of 10 April 2011.

On 10 February 2011, the applicant was scheduled to complete an FA on 24 February.

On 17 February 2011, an MRI was taken of her knee.

On 22 February 2011, she was advised her FA for 24 February was canceled until an AF Form 422 could be rendered so they would know what components she was required to complete.

On 23 February 2011, an AF Form 422, Notification of Air Force Member’s Qualification Status, was completed, allowing her to complete the abdominal circumference measurement and the 1 mile heart rate walk only and exempting her from participating in the cardio (1.5. mile run), sit-ups and push-ups components of fitness assessments, with an expiration date of 22 May 2011.

On 1 March 2011, the applicant inquired as to why she was cleared for the 1 mile heart rate walk being listed on the 23 February 2011, since she was on Albuterol, which should have rendered her exempt from this component.

On 14 March 2011, an AF Form 422, Notification of Air Force Member’s Qualification Status, was completed, allowing her to complete the abdominal circumference measurement only and exempting her from participating in the cardio (1.5. mile run or 1 mile heart rate walk), sit-ups and push-ups components of fitness assessments, with an expiration date of 14 March 2011.  

On 14 March 2011, she was advised that since her AF Form 422 had not been received, her FA scheduled to 15 March 2011, would be rescheduled.

On or about 18 March 2011, the applicant requested a two-week extension of the close-out date of the contested report to include a successful fitness assessment.

On 18 March 2011, the applicant accomplished a fitness assessment with a fitness level of satisfactory.  She was exempt from all components, except for the abdominal circumference measurement.

On 7 April 2011, she was evaluated for right knee problems for the last year and based on the results of the MRI, diagnosed with Chondromalacia Patella [damage to the cartilage under your kneecap], Medial Patella Retinaculum and Medial Collateral Ligament strain.  She was treated with a cortisone injection and physical therapy.

On 2 May 2011, she was evaluated by physical therapy.

On 20 May 2011, the commander non-concurred on the extension request, noting the applicant was overdue for a fitness assessment since September 2010 and that despite significant bureaucratic obstacles, it was reasonable to hold a technical sergeant accountable for not getting a fitness assessment within a six-month period.

On 25 May 2011, the applicant submitted an amended request for the extension to her rater.  On 31 May 2011, her rater and additional rater submitted memoranda to the Air Force Personnel Center (AFPC) concurring with her request.  

On 3 June 2011, the applicant’s additional rater was advised by AFPC the commander has the authority to deny an extension request and that her commander had done so on 20 May 2011, and that as such, no further action was appropriate.

On 6 June 2011, the contested report was referred to the applicant because it contained a “does not meet” fitness standards rating in Section III, Item 3, Fitness.

The applicant was tentatively selected for promotion to the grade of master sergeant (E-7) during cycle 11E7, with a Promotion Sequence Number (PSN) of 3370, which would have incremented on 1 December 2011.  However, the receipt of the referral report rendered her ineligible for promotion and her PSN [line number] was removed.

On 19 January 2012, the applicant was advised the Evaluation Reports Appeals Board (ERAB) considered and denied her request to remove the contested report, as they were not convinced it was in error or unjust.

The applicant was selected for promotion to the grade of master sergeant (E-7) during cycle 12E7.

On 2 October 2012, the Board considered and granted an application from a member who had abdominal surgery and should have been exempt from all components, resulting in voidance of the contested FAs and referral report, and provided the corrected record supplemental promotion consideration.

In accordance with AFI 36-2406, Officer and Enlisted Evaluation System, Unit commanders may request close-out date extensions of up to 59 days to ensure resolution of any administrative, or other significant issues.

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AIR FORCE EVALUATIONS:

AFPC/DPSID recommends denial of the request to void the contested referral report based on the applicant’s non-currency status.  Based on her last FA of 2 February 2010 her next assessment was due no later than 30 August 2010.  Due to the contested report closing-out on 4 March 2011, without a current FA, the rating chain had absolutely no choice in accordance with the governing instruction but to refer the evaluation, as failure to attain a passing score before the end of any evaluation reporting period, will result in a "DOES NOT MEET STANDARDS" rating. Due to the applicant being in non-current fitness status, and no evidence to prove otherwise, they conclude the referral report, as rendered, is accurate and in accordance with applicable Air Force policies and procedures.  Although the rater and additional rater support the extension request, the commander did not.  Although the applicant may believe this is unfair, an extension is not automatic and completely within the commander’s discretion.  Although the applicant may have had some medical challenges during the rating period that prevented her from passing, she still could have scheduled an FA sooner under the categories for which she was cleared and if not successful and was facing a referral report, her rating chain could have had more options to work with.  If still unsuccessful, she could have then filed an ERAB appeal, and had more ground to stand on.

While the applicant believes the report is in error due to content change to the referral comment. The report that was referred to her on 6 June 2011 stated "not current at EPR close out due to circumstances beyond her control" and the final report filed in her official record states "not current at EPR close out". IAW AFI 36-2406, Paragraph 3.9.1 1. "If, after the report has been referred to the ratee, any corrections are made to the report which add information or change the content and/or the meaning (this does not include administrative corrections such as correcting the SSN, etc.), the ratee must again be given an opportunity to respond to the new information presented on the current version of the report". However, in the applicant’s case, removing "due to circumstances beyond her control" does in no way change the content or meaning of the comment that she was not current at the time of the close-out of the contested report and therefore find this portion of the applicants request to be without merit.

The AFPC/DPSID evaluation is at Exhibit B.

AFPC/DPSOE provided an advisory opinion deferring to the recommendation from AFPC/DPSID to deny the applicant’s request to remove the contested report, noting the receipt of this report rendered her ineligible for promotion in accordance with AFI 36-2502.

The AFPC/DPSOE evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The contested report does not accurately assess her fitness as of the close-out date of the report and should have reflected that she was exempt.  Her request for an extension of the close-out date was submitted 10 days after she successfully completed her FA.  Further, based on the fact that in February 2010, she completed her last FA, she was not due for her six-month assessment until August 2010.  The entire burden is being shifted to her, rather than the role of the numerous medical personnel she encountered in order to obtain an accurate profile for components of the assessment she could safely complete without further injury.  It took from July to November 2010 for her to finally receive an AF Form 469, which she should have received when she first went to the clinic for her severe knee pain.  She exercised due diligence to get proper medical treatment for her injury, took the prescribed medication, and made her physical therapy appointments; however, the medical community failed to follow their own instructions.  Her request for an extension of the close-out date was submitted 10 days after she successfully completed her FA.  

Similar to the applicant in BC-2012-00554 she too had abdominal surgery and should have also received a 90-day exemption; however, there was never mention of her surgery or four abdominal incisions on any AF Form 469 or AF Form 322 [sic].  The earliest she could have performed an FA was 29 March 2011 if the profile for her surgery had been properly completed and exemptions accurately annotated.  However, there was no such profile and she still would have been marked as “DOES NOT MEET STANDARDS,” rather than “EXEMPT.”

The removal of the words, “due to circumstances beyond her control,” clearly alters the intent of the report.  Her rater and additional rater knew the circumstances concerning her fitness currency and wanted the statement included in the report.

The applicant’s complete submission, 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 the existence of an error or an injustice.  On 24 November 2013, the Fitness Assessment Appeals Board voided the Fitness Assessments, dated 26 August 2004, 21 July 2005, 21 February 2006, 4 April 2008 and 14 October 2009, and they have been removed from the Air Force Fitness Management System.  Therefore, the only remaining issue before us is whether the contested referral report, which rendered the applicant ineligible to accept her tentative promotion during cycle 11E7, should be declared void and removed from her record.  In this regard, we note that after the report was referred to the applicant, the comment in Section III, Item 3, Fitness, “Not current at EPR close out due to circumstances beyond her control,” was changed to “Not current at EPR close out.”  However, in accordance with the governing instruction if, after a report has been referred to a ratee, any corrections are made to the report which add information or change the content and/or the meaning, the ratee must again be given an opportunity to respond to the new information presented on the current version of the report.  In the applicant’s case this was not done, despite the significant change in content.  While AFPC/DPSID contends this in no way changed the content or meaning of the comment that she was not current at the time of the close-out, we disagree.  The evidence of record establishes the applicant exercised due diligence in order to maintain fitness currency but through no fault of her own, a valid and proper medical profile was not obtained until 10 days after the close-out.  Moreover, we also recognize that she would have been able to successfully complete a fitness assessment prior to the close-out if the 23 February 2011 AF Form 422 had been properly completed.  We find it readily apparent that based on the rater’s firsthand knowledge of the applicant’s diligent efforts and the circumstances surrounding the inability of the medical community to provide her an accurate profile prior to the close-out; she made a conscious decision to include the original comment in order to differentiate the applicant from other airmen who were non-compliant due to factors that were totally within their control.  This is further evident in the memoranda from the rater and additional rater, who unambiguously affirm the cause of the applicant’s non-currency was beyond her control and the control of her leadership. In view of this and noting that prior to the report being referred to the applicant on 6 June 2011, she successfully completed an abdominal circumference measurement-only fitness assessment on 18 March 2011; we find the report inaccurately identifies the applicant’s fitness.  In view of this and given the non-compliance with the governing instruction by not referring the report back to the applicant after the rater’s original comment was significantly changed, we recommend the referral report be declared void and removed from her records.  Furthermore, since the referral report was the sole basis for removing her promotion sequence number for cycle 11E7 and given the fact she was subsequently selected for promotion during cycle 12E7, we also recommend that her date of rank to master sergeant be changed to 1 December 2011, which is the date her promotion sequence number for cycle 11E7 would have been incremented.

________________________________________________________________

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 AF Form 910, Enlisted Performance Report (AB thru TSgt), rendered for the period 5 March 2010 through 4 March 2011, be declared void and removed from her records.

	b.	Her date of rank to the grade of master sergeant (E-7) is 1 December 2011. 
________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2013-00324 in Executive Session on 24 June 2014, under the provisions of AFI 36-2603:

	XXXXX, Panel Chair
	XXXXX, Member
	XXXXX, Member


All members voted to correct the records, as recommended.  The following documentary evidence was considered:

		Exhibit A.  DD Form 149, dated 15 Jan 13, w/atchs.
		Exhibit B.  Memorandum, AFPC/DPSID, dated 28 Feb 14.
		Exhibit C.  Memorandum, AFPC/DPSOE, dated 26 Mar 14.
		Exhibit D.  Letter, SAF/MRBR, dated 7 Mar 14.
		Exhibit E.  Letter, Applicant, not dated, w/atchs.




                                   XXXXX
                                   Panel Chair



FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974

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