RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-04345

	XXXXXXXXX	COUNSEL:  NONE	

			HEARING DESIRED:  NO



APPLICANT REQUESTS THAT:

The administrative demotion action to Staff Sergeant, which was a result of Fitness Assessment (FA) failures, should be removed from his records.


APPLICANT CONTENDS THAT:

He had a medical condition that precluded him from passing FAs.  Additionally, due to the lengthy disability process with the Integrated Disability Evaluation System (IDES), a proper medical determination was not made in time and he was unjustly demoted to Staff Sergeant for the contested FA failures.  

In support of his appeal, the applicant submits an AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 1 May 12, validating his medical condition and recommending discharge with severance pay and a disability rating of 20 percent.  Additionally, he provides a memorandum from the Secretary of the Air Force Personnel Council (SAF/MRBP), dated 23 Jul 12, indicating that “his knee and back problems have significantly contributed to his unsatisfactory performance since Nov 2011; specifically, his failure to meet minimum fitness standards,” and directed that he served satisfactorily in the higher grade of Technical Sergeant (E-6).  

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


STATEMENT OF FACTS:

The applicant was medically discharged in the grade of Staff Sergeant (E-5) at the time the application was submitted.

On 5 Nov 10, the applicant participated in an FA, attaining an overall composite score of 10.25, which constituted an “unsatisfactory” assessment.  The applicant was credited with the following composite scores:  Cardio (walk test) – 18/0.00 points, Abdominal Circumference – 41.00”/8.20 points, Push-ups – Exempt, Sit-ups – Exempt.

On 1 Jun 11, the applicant participated in an FA, attaining an overall composite score of 63.00, which constituted an “unsatisfactory” assessment.  The applicant was credited with the following composite scores:  Cardio – Exempt, Abdominal Circumference – 39.00”/12.60 points, Push-ups – Exempt, Sit-ups – Exempt.

The Automated Records Management System (ARMS) shows the applicant received a referral AF Form 910, Enlisted Performance Report, for report period 2 Jun 10 to 1 Jun 11.  The EPR was referred for the marking “Does Not Meet” in Section III, Block 3, Fitness, and states “member failed to meet minimum fitness requirements.”

On 18 Aug 11, the applicant participated in an FA, attaining an overall composite score of 53.00, which constituted an “unsatisfactory” assessment.  The applicant was credited with the following composite scores:  Cardio – Exempt, Abdominal Circumference – 40.00”/10.60 points, Push-ups – Exempt, Sit-ups – Exempt.

On 21 Nov 11, the applicant participated in an FA, attaining an overall composite score of 0.00, which constituted an “unsatisfactory” assessment.  The applicant was credited with the following composite scores:  Cardio – Exempt, Abdominal Circumference – 45.00”/0.00 points, Push-ups – Exempt, Sit-ups – Exempt.

On 19 Jan 12, the Medical Evaluation Board (MEB) convened to determine whether the applicant had a medical condition that would preclude him from continuing active duty service.  The board found the following diagnosis:  “Intervertebral Disc Degeneration of the Lumbar Spine” with an approximate date of origin of Jun 2010.  The board recommended that the applicant’s case be referred to the IPEB. 

On 9 Feb 12, the applicant was notified of the commander’s recommendation for administrative separation based on “Unsatisfactory Performance:  Failure to Meet Minimum Fitness Standards.”

On 28 Feb 12, the applicant participated in an FA, attaining an overall composite score of 26.50, which constituted an “unsatisfactory” assessment.  The applicant was credited with the following composite scores:  Cardio – Exempt, Abdominal Circumference – 42.00”/0.00 points, Push-ups – Exempt, Sit-ups – Exempt. 

The Automated Records Management System (ARMS) shows the applicant received a referral AF Form 910, Enlisted Performance Report, for report period 2 Jun 11 to 4 Jan 12.  The EPR was referred for the marking “Does Not Meet” in Section III, Block 3, Fitness, and states “Scored 0.00, continuously lacked initiative to meet fitness requirements.”

On 12 Mar 12, the applicant’s Wing Commander directed an Honorable Discharge for “Unsatisfactory Performance: Failure to Meet Minimum Fitness Standards.”  However, the action would only be executed after he was found qualified for worldwide duty or dual action processing is complete.

A memorandum from AFPC, dated 23 Mar 12, indicates that the execution of the discharge was deferred pending the outcome of the required dual action processing (medical discharge).  

On 1 May 12, the Physical Evaluation Board (PEB) determined the applicant’s medical condition prevented him from reasonably performing the duties of his office, grade, rank, or rating.  They further found him unfit and recommended a disability discharge.

On 1 Jun 12, the applicant participated in an FA, attaining an overall composite score of 47.00, which constituted an “unsatisfactory” assessment.  The applicant was credited with the following composite scores:  Cardio – Exempt, Abdominal Circumference – 40.50”/0.00 points, Push-ups – Exempt, Sit-ups – Exempt.

On 3 Jul 12, the applicant’s commander issued an “Administrative Demotion Recommendation” memorandum for six consecutive FA failures.

Effective on 20 Jul 12, the applicant was administratively demoted from Technical Sergeant to Staff Sergeant for his FA failures.

On 1 Aug 12, AFPC received a memorandum from the SAF Personnel Council, who determined that the applicant would be medically discharged (due to Degenerative disc disease, thoracolumbar spine) and not subject to an involuntary discharge (Unsatisfactory performance, Failure to meet minimum fitness standards).  

On 3 Sep 12, the Secretary of the Air Force directed that the applicant had served in the higher grade of Technical Sergeant “satisfactorily” within the meaning of Section 1212, Title 10, USC.

On 28 Oct 12, the applicant was honorably discharged for physical disability in the grade of Staff Sergeant.




AIR FORCE EVALUATION:

AFPC/DPSIM states that they cannot reinstate rank and are unable to grant relief to the request of the applicant.  Additionally the applicant’s AFFMS record no longer exists, so they would not be able to edit/remove the failed FAs if the applicant had provided sufficient evidence to do so.

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

AFPC/DPSOE recommends denial of the applicant’s request to remove the demotion action and restore his rank to Technical Sergeant.  In their opinion, the demotion action was procedurally correct and the commander acted within his authority to demote the applicant for his failure to maintain fitness standards based on the information he had at the time.  However, should the Board grant the applicant’s request, they recommend restoration of rank to TSgt with a date of rank and effective date of 1 Jul 10.

A complete copy of the AFPC/DPSOE evaluation is at Exhibit D.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations, with attachments, were forwarded to the applicant on 31 Mar 14 for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit D).


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 injustice.  AFPC/DPSOE recommends denial, stating that the demotion was procedurally correct and based on the information the commander had at that time, he acted within his authority to demote the applicant for failure to maintain fitness standards.  However, the applicant contends that due to the lengthy disability process with the Integrated Disability Evaluation System (IDES) a proper medical determination was not made in time and he was unjustly demoted to Staff Sergeant (SSgt) for the FA failures.  After a thorough review of the evidence of record and the applicant's complete submission, we are convinced that his demotion should in fact be rescinded.  In this respect, we note that at the time of the demotion action, the applicant was concurrently facing an involuntary discharge for failure to meet fitness standards and a medical discharge for a degenerative disc disease.  The final decision was made under secretarial authority that the member should not be discharged for fitness failures, but instead for his medical condition.  Given that the applicant was in fact discharged medically, we believe that the same rationale should be applied to his administrative demotion.  In this regard, we recognize the findings of the the Medical Evaluation Board (MEB), who indicate that the date of organs of the applicant’s medical condition was Jun 2010, which was prior to the FAs that led to his demotion.  This leads us to believe that it is reasonable to conclude that his medical condition precluded him from passing his 5 Nov 10, 1 Jun 11, 18 Aug 11, 21 Nov 11, 28 Feb 12, and 1 Jun 12 FAs.  Therefore, in view of the fact that we have determined the evidence is sufficient to conclude there was a causal nexus between the medical condition for which the applicant received a disability discharged and his ability to attain passing scores on his FAs, we also believe it is reasonable to conclude that the administrative demotion and two referral EPRs should be declared void and removed from his records.  Therefore, we recommend the applicant's records be corrected as indicated below.


THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force pertaining to the APPLICANT be corrected to reflect the following:

	a.  The Fitness Assessments (FA), dated 5 Nov 10, 
1 Jun 11, 18 Aug 11, 21 Nov 11, 28 Feb 12, and 1 Jun 12 be declared void and removed from his records.

	b.  The administrative demotion to the grade of staff sergeant (E-5) be declared void and removed from his records and all rights, privileges, and property be restored.  

	c.  The enlisted performance reports (EPR), closing on 1 Jun 11 and 4 Jan 12, be declared void and removed from his records.


The following members of the Board considered AFBCMR Docket Number BC-2013-04345 in Executive Session on 17 Dec 14, under the provisions of AFI 36-2603:

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All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-04345 was considered:

Exhibit A.  DD Form 149, dated 22 Sep 13, w/atch.
Exhibit B.  Applicant’s Master Personnel Records
Exhibit C.  Letter, AFPC/DPSIM, dated 23 Jan 14.
Exhibit D.  Letter, AFPC/DPSOE, dated 15 Nov 13.
Exhibit E.  Letter, SAF/MRBR, dated 31 Mar 14.