RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-01104

	XXXXXXXXXX	COUNSEL:  NONE

			HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1. The Fitness Assessments (FAs) dated 2 Mar 12 and 24 May 12 be declared void and removed from the Air Force Fitness Management System (AFFMS).

2. The Letter of Reprimand (LOR) dated 15 Dec 11 and LOR (not dated), but issued for his FA failure dated 24 May 2012 be removed. 

3. The non-judicial punishment under Article 15 of the Uniform Code of Military Justice and issued on 6 Aug 12 be rescinded and reversed, and his rank be restored to technical sergeant.

4. His records be corrected to show that he was not separated on 31 May 13, under the Date of Separation (DOS) program, but on that date he continued to serve on active duty.  (Examiner’s Note:  In his response to the advisory opinions, the applicant amended his application to include this request.)
 
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APPLICANT CONTENDS THAT:

1.  On 8 Jun 2012 he received the AFBCMR’s decision to grant his previous request to have the FA scores dated 8 Apr 11, 8 Jul 11, and 2 Dec 11 be removed from AFFMS and Enlisted Performance Report (EPR) rendered for the period 2 Jun 10 through 1 Jun 11, be declared void and removed from his records.  The LOR dated 15 Dec 11 and the LOR (not dated) was a result of the FA’s that have since been removed from his record. 

2.  Due to poor use and care of the heart monitor equipment used to administer the FA, as well as the medication he was prescribed he was unable to successfully obtain a minimum passing score on the contested FAs. Specifically for the FA dated 2 March 12 he failed due to a 40.5 inch AC measurement which was inaccurate due to the 20mg of Micardis, and 150 mg of Voltaren that he was taking at the time of the FA.  For the FA dated 24 May 12 he had a heart rate of 183 bpm, which he believes was altered by being too close to other individuals wearing heart rate monitors and the poor handling, storing, and distribution of the equipment.

3.  He received the Article 15 as a reprisal action for his previous BCMR submission.  Furthermore, the Article 15 is solely based on evidence of one Memorandum for Record, and the two LORs, which should be removed since they were issued based on the previous FA failures that are no longer a part of his record. 

In support of his contentions, the applicant submitted a personal letter to the board; the contested LORs, along with the rebuttals; AFBCMR Docket Number BC-2011-05021 marked “Approved;” the Polar heart rate monitor user manual; an AF Form 418, Selective Reenlistment Program (SRP) Consideration for Airmen, and the Article 15 proceeding, dated 6 Aug 12, along with supporting documents.  

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

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STATEMENT OF FACTS:

The applicant was serving in the Regular Air Force in the grade of staff sergeant (E-5) at the time of the application was submitted. 

On 15 Dec 11, the applicant received a LOR for failure to attend mandatory Fitness Improvement Training Program sessions prescribed by the commander.  

On 2 Mar 12, the applicant participated in a FA, attaining an overall composite score of 67.88, which constituted an “unsatisfactory” assessment.  The applicant was credited with the following composite scores:  Cardio (walk test) – 40/44.90 points, Abdominal Circumference – 40.50”/9.40 points, Push-ups – Exempt, Sit-ups – Exempt.

On 21 May 12 a memorandum was issued by the Director, Air Force Review Boards Agency, directing the FAs dated 8 April 2011, 8 July 2011, and 2 December 2011 be declared void and removed from the Air Force Fitness Management System.

On 24 May 12, the applicant participated in a FA, attaining an overall composite score of 66.00, which constituted an “unsatisfactory” assessment.  The applicant was credited with the following composite scores:  Cardio (walk test) – 38/38.30 points, Abdominal Circumference – 38.50”/13.50 points, Push-ups – Exempt, Sit-ups – Exempt.

A LOR (not dated) and AF IMT 1058, Unfavorable Information File Action (UIF), provided by the applicant and dated 30 May 12 indicate the commander was considering placing the applicant on a control roster for his FA failure dated 24 May 12 and all previous FA failures dated back to 8 Apr 11.  

Examiner’s Note:  The LOR (not dated) was issued for the FA failure dated 24 May 2012, which was not part of the applicant’s previous AFBCMR request.  However, the LOR states that he “failed five fitness assessments dating back to 8 April 2011.”  Therefore the applicant was likely indicating the LOR was issued for all 5 FA failures of which only 2 of the failures are actually part of his record.  Additionally, the comments in the UIF/Control roster indicate that it was being considered for all 5 FA failures, when officially it was only 2.

An AF IMT 1058, Unfavorable Information File Action (UIF), provided by the applicant and signed by the commander on 19 Jun 12 indicates the commander decided not to place the applicant on a control roster.  

On 30 Jul 12 the applicant’s supervisor indicated on a MFR that he had failed to show multiple times for mandatory physical training.

On 6 Aug 12, the applicant received non-judicial punishment according to Article 15 of the Uniform Code of Military Justice (UCMJ) for failure to go on several occasions to his appointed place of duty at the time prescribed from 23 Apr 12 to 28 Jul 2012 without authority, in violation of Article 86, UCMJ. 

The applicant’s last 5 FA results are as follows:

Date 
Composite Score
Rating
1 Jun 2012
Exempt
Exempt
*24 May 12
66.00
Unsatisfactory
*2 Mar 12
67.88
Unsatisfactory
5 Jan 10
75.35
Good
3 Dec 08
76.85
Good* Contested FA

On 6 Dec 13, a similar request was considered and denied by the Fitness Assessment Appeals Board (FAAB), due to a lack of  supporting documentation from the applicant’s primary care manager and commander. The FAAB further found no evidence of testing equipment error or sufficient evidence of prescribed medications that would impact his testing ability. For these reasons, the FAAB denied his request for removal of FAs dated 2 Mar 12 and 24 May 12.

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AIR FORCE EVALUATION:

In reference to the FAs dated 2 Mar 12 and 24 May 12, AFPC/DPSIM recommends denial of removing them, stating there is insufficient evidence to support the applicant’s claim of faulty equipment and prescribed medication.  In reference to his contentions about the heart rate monitor, the applicant has supplied multiple documents discussing care and maintenance of the monitor.  However, outside the care and maintenance documents, the applicant has not provided any evidence to indicate the testing equipment was not properly maintained.  Furthermore, when reviewing the evidence about his prescribed medication, there is no official medical documentation to indicate the applicant was on any medication.  The only supporting documents are a print-out about the medication, which only describe the medication and identifies possible side effects.    

AFPC/DPSIM recommends denial of the applicant’s request to remove the LORs and Article 15, stating that while they cannot confirm the commander’s action being just or not, they have concluded he/she followed proper procedures IAW AFI 51-202. Furthermore, there is insufficient evidence to indicate the commander’s actions were a reprisal action.

Complete copies of the AFPC/DOSIM evaluations, with attachments, are at Exhibit C.

AFLOA/JAJM recommends denial to grant relief based on any error or injustice with the Article 15 process.  Based upon the paper record submitted, they see no error or injustice that would warrant reversing the commander’s decision. 

A complete copy of the AFLOA/JAJM evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In response to the Air Force evaluations, the applicant submits a personal letter to the Board indicating that key information had been taken out of the supporting documents for the Article 15.  He claims the evidence was provided in the original submission, but also included it with his rebuttal.  Additionally, he submitted print-outs of his patient health records which validate he was prescribed the medication (Micardis and Voltaren) that precluded him from passing the FA dated 2 Mar 12.  Finally, the applicant states that on 31 May 13, he was separated from active duty under the Date of Separation program and would like to be reinstated as an E-6.  

The applicant’s complete response, with attachment is at Exhibit F.

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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 error or injustice.  After thoroughly reviewing the evidence of record and noting the applicant’s contentions, we are not persuaded the applicant has been the victim of an error or an injustice.  In this respect, we note the applicant has provided insufficient evidence to show the contested FAs should be invalidated.  Although he has provided documentation concerning the care and maintain of the heart rate monitored employed during the walk test, we had failed to provide an corroborating statements from the Fitness Assessment Cell, Fitness Training Leader, or eyewitnesses.  While the applicant contends the LOR, dated 15 Dec 11, was issued as a result of the contested FAs failures, the evidence before us indicates the LOR was issued and the nonjudicial punishment  was imposed due to his repeated failures to attend fitness training; specifically, fitness improvement training.  There is no showing the nonjudicial punishment under Article 15 of the UCMJ, was improper or not within the commander’s discretionary authority.  Moreover, there has been no showing that is was rendered in reprisal for seeking relief through the AFBCMR.  Based on the foregoing, we find no basis to show that he was not separated on 31 May 13, but on that date, continued to serve on active duty.  Therefore, in view of the above and in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

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

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The following members of the Board considered AFBCMR Docket Number BC-2013-01104 in Executive Session on 19 August 2014, under the provisions of AFI 36-2603:

	XXXXXXXXXX, Panel Chair
	XXXXXXXXXX, Member
	XXXXXXXXXX, Member

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 25 Feb 13, w/atchs.
	Exhibit B.	Extracts from Military Master Personnel Record.
	Exhibit C.	Letter, AFPC/DPSIM, dated 7 Feb 14, w/atch.
	Exhibit D.	Letter, AFPC/JAJM, dated 7 Mar 14.
	Exhibit E.	Letter, SAF/MRBR, dated 21 Mar 14.
	Exhibit F.	Letter, Applicant, not dated.