RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-01291

	XXXXXXXXX	COUNSEL:  NONE

			HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1. The Fitness Assessments (FAs) dated 13 Jul 10, 5 Nov 10, and 8 Feb 12 be declared void and removed from the Air Force Fitness Management System (AFFMS).

2. The Referral Enlisted Performance Reports (EPRs) rendered for the periods of 7 Nov 2009 through 6 Nov 2010, 7 Nov 2010 through 17 Jun 2011 and 18 Jun 2011 through 23 Mar 2012 be declared void and removed from his personnel record.  
 
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APPLICANT CONTENDS THAT:

1. Due to a reported knee injury that was misdiagnosed and related to herniated discs he was unable to successfully obtain a minimum passing score on the contested FAs.

2. His referral EPR dated from 7 Nov 2009 through 6 Nov 2010 was a direct result of the contested FA failures.

3. His referral EPR dated from 7 Nov 10 through 17 Jun 11 was a result of an Article 15, issued for being absent without leave (AWOL).  During this time he had injured his back and was going through a series of medical appointments.  On 14 Mar 11, he was told by his first sergeant that until he could actually perform his duties he should not be at work.  He followed the instructions of his first sergeant and remained at home during his recovery from 14 Mar 11 to 4 Apr 11.  However, on 3 May 11 he received an Article 15 for being AWOL.  This article 15 was unjust and resulted in the referral EPR.

4. His referral EPR dated from 18 Jun 11 through 23 Mar 12 was a result of his FA failure and a Letter of Reprimand (LOR) dated 7 Mar 2012, issued for domestic violence.  He believes he was falsely accused and therefore should not have received the LOR. In regards to the FA failure, he was still undergoing his herniated discs and was unable to successfully complete the contested FA.  Due to his medical condition and the unjust LOR he received a referral EPR. 

In support of his contentions, the applicant submitted a letter from his off-base neurosurgeon, indicating that he had degenerative disk disease which precluded him from passing the FAs from 2010 to 2012; the referral EPRs, along with supporting documentation; his personal statement explaining the circumstances surrounding his Article 15 dated 3 May 11 and the LOR dated 7 Mar 12, including his response and supporting documents indicating that he was not charged with domestic violence from the State. 

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

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STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force in the grade of staff sergeant (E-5).

On 13 Jul 10, the applicant participated in a FA, attaining an overall composite score of 75.10, which constituted an “unsatisfactory” assessment.  The applicant was credited with the following composite scores:  Cardio (walk test) – 38/39.30 points, Abdominal Circumference – 35.50”/17.60 points, Push-ups – 57/9.00 points, Sit-ups – 53/9.20 points.

On 5 Nov 10, the applicant participated in a FA, attaining an overall composite score of 75.00, which constituted an “unsatisfactory” assessment.  The applicant was credited with the following composite scores:  Cardio (walk test) – 38/39.30 points, Abdominal Circumference – 36.00”/17.00 points, Push-ups – 59/9.20 points, Sit-ups – 56/9.50 points.

The applicant received a referral EPR for period 7 Nov 09 through 6 Nov 10, based on a rating of "Does Not Meet" in Section 3, Fitness.

On 3 May 11, the applicant received non-judicial punishment according to Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself from his place of duty from 
14 March 11 to 4 Apr 2011 without authority, in violation of Article 86, UCMJ, and making a false official statement in violation of Article 107, UCMJ. 

On 13 May 11, the servicing Staff Judge Advocate reviewed the entire record and found it to be legally sufficient.
 
The applicant received a referral EPR for period 7 Nov 10 through 17 Jun 11, based on a rating of “Does Not Meet” in Section 2, Standards Conduct, Character and Military Bearing.

On 8 Feb 12, the applicant participated in a FA, attaining an overall composite score of 67.50, which constituted an “unsatisfactory” assessment.  The applicant was credited with the following composite scores:  Cardio – Exempt, Abdominal Circumference – 38.50”/17.00 points, Push-ups – Exempt, Sit-ups – Exempt.

On 7 Mar 12, the applicant received an LOR for “Assault” in violation of Article 128, UCMJ, and an Unfavorable Information File was established and the LOR filed therein.

The applicant received a referral EPR for period 18 Jun 11 through 23 Mar 12, based on a rating of “Does Not Meet” in Section 2, Standards Conduct, Character and Military Bearing and “Does Not Meet” in Section 3, Fitness.

The applicant’s last 10 FA results are as follows:

Date 
Composite Score
Rating
31 May 13
81.33
Satisfactory
2 Nov 12
82.00
Satisfactory
17 May 12
75.50
Satisfactory
*8 Feb 12
67.50
Unsatisfactory
24 Aug 11
85.00
Satisfactory
2 Feb 11
79.30
Satisfactory
*5 Nov 10
75.00
Unsatisfactory
*13 Jul 10
75.10
Unsatisfactory
15 Oct 09
88.50
Good
30 Oct 08
88.50
Good* Contested FA

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AIR FORCE EVALUATION:

AFPC/DPSIM recommends denial of removing the contested FAs, stating the evidence provided by the applicant does not conclusively support his contentions.  Specifically, the applicant did not provide any AF Forms 422, additional medical documentation to support a misdiagnosis or the severity of his medical condition, and a memo from the Unit Commander invalidating the contested FAs. 

A complete copy of the AFPC/DPSIM evaluation, with attachments, is at Exhibit C.

AFLOA/JAJM recommends denial of the request to set-aside the nonjudicial punishment imposed on the applicant under Article 15 of the UCMJ, stating the legal review process showed the squadron commander did not act arbitrarily or capriciously in making the nonjudicial punishment decisions.  Furthermore, the applicant did not make a compelling argument the Board should overturn the commander’s nonjudicial punishment decision on the basis of injustice.   

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

AFPC/DPSID recommends denial of the applicant’s request to void  the contested EPRs.  Specifically for the EPR rendered on 6 Nov 10, the applicant has failed to provide any evidence to prove his assertions or that the EPR was not rendered fairly based solely on the fitness failure.  In reference to the EPR rendered 17 Jun 2011, DPSID found that based upon the legal sufficiency of the Article 15, and no evidence the nonjudicial punishment was ever set aside, they find that its mention in the applicant's contested report was appropriate, and as such there is no basis to support its removal.  However, DPSID does recommend the prohibited statement of “suspended reduction in grade/30 days extra duty” be removed.  Finally, the EPR rendered on 23 Mar 12 and referred due to the applicant receiving an LOR/UIF for a domestic violence incident and a failed fitness assessment was appropriate and within the evaluators authority.  Furthermore, given the administrative actions have not been rescinded for either the LOR/UIF or the fitness failure, a removal of the contested report should not be entertained.

A complete copy of the AFPC/DPSID evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations, with attachments, were forwarded to the applicant on 16 May 14 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit F).

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THE BOARD CONCLUDES THAT:

1.	The applicant has exhausted all remedies provided by existing law or regulations concerning the contested FAs.  He has not exhausted all available avenues of administrative relief concerning the contested referral-reports.

2.	The application was timely filed, since the three-year period for filing, as required under 10 USC § 1552(b), tolls while a member is serving on active duty.  We note the applicant is currently serving on active duty.

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 contested FAs should be invalidated.  Although the applicant submitted a letter from his off-base neurosurgeon, indicating that he had degenerative disk disease which precluded him from passing the FAs from 2010 to 2012, he has failed to provide any AF Forms 422 and support from the unit commander, recommending the contested FAs be invalidated.  In the absence of evidence to the contrary, we find no basis upon which to recommend favorable consideration of his request to invalidate the contested FAs.  The applicant believes he was falsely accused of domestic violence and therefore, should not have received the LOR.  However, he has failed to provide evidence to support this contention.  Although the applicant has not requested the nonjudicial punishment action under Article 15 of the UCMJ related to the domestic violence be removed from his records, we agree with the comments of AFLOA/JAJM that the squadron commander did not act arbitrarily or capriciously in making the nonjudicial punishment decisions.  As such, there exists no basis to disturb it.  Concerning the contested referral-reports, as noted above, the applicant has not exhausted all available avenues of administrative relief in this regard, as he has not first pursued relief through the Evaluation Reports Appeals Board.  However, since this portion of his application is predicated on the removal of the contested FAs and is currently before us, in the interest of expediency, we will address it at this time.  We have reviewed the applicant’s contentions concerning the contested referral reports and are not convinced they have rendered him the victim of an error or an injustice.  In this regard, we note the contested referral report, closing 6 Nov 2010, was a direct result of the contested FA failures.  In view of our above determination the FA failures are valid there exists no basis to disturb this EPR.  The contested referral report, closing 17 Jun 11 was the result of the Article 15, issued for being AWOL.  Although the applicant contends that after injuring his back, his First Sergeant advised him that until he should not be at work, this is refuted by the Squadron Commander’s 6 Jun 11 Memorandum.  In his memorandum, the Squadron Commander indicated that when questioned about this, the applicant stated after 14 Mar he stayed home because his roommate told him the First Sergeant advised him to do so, but the roommate denied that he made the statement.  In view of this and in the absence of evidence the commander’s decision was arbitrary or capricious, we find no basis to remove the Article 15 or the contested referral report, closing 17 Jun 11.  In view of our above determination concerning the propriety of the LOR, we find no basis to remove the contested referral report, closing 7 Mar 12, in which the LOR is referenced.  In regards to the FA failure, he was still undergoing his herniated discs and was unable to successfully complete the contested FA.  Due to his medical condition and the unjust LOR he received a referral EPR. Therefore, in view of the above, 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-2013-01291 in Executive Session on 19 Aug 14, under the provisions of AFI 36-2603:

Mr. XXXXXXXXX, Chair
Ms. XXXXXXXXX, Member
Mr. XXXXXXXXX, Member

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 12 Mar 13, w/atchs.
	Exhibit B.	Extracts from Master Personnel Records.
	Exhibit C.	Letter, AFPC/DPSIM, dated 24 Sep 13, w/atch.
	Exhibit D.	Letter, AFLOA/JAJM, dated 24 Oct13.
	Exhibit E.	Letter, AFPC/DPSID, dated 22 May 14.
	Exhibit F.	Letter, SAF/MRBR, dated 13 Jun 14.