RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00764 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ THE APPLICANT REQUESTS THAT: 1. His one additional year of active duty service commitment (ADSC) received as a student at the Uniformed Services University of Health Sciences (USUHS) be waived. 2. His six-year ADSC he received for a civilian-sponsored neurosurgery residency training from 1994 to 2000 be removed. ________________________________________________________________ THE APPLICANT CONTENDS THAT: He should not have to serve an additional year of ADSC because he served on active duty during an eight month period at USUHS, contemplating whether or not he was going to continue medical school. So, since he was not in a student status he should not be required to serve the additional year of the original seven- year ADSC. After graduating from the United States Air Force Academy (USAFA), he attended USUHS expecting to graduate in 1992, with an agreed upon seven-year ADSC to run consecutively with his USAFA commitment. However; while it was his intention to serve 20 years in the Air Force, at the end of his second year he experienced reservations about becoming a physician. After months of deliberations and numerous conversations, he decided to continue his third year of medical school. During this period he worked for the Department of Defense (DOD) Human Performance Laboratory as a lab assistant, not in student status. His six-year ADSC he incurred as a result of his civilian sponsored neurosurgery residency training be removed because at the time he was given a lot of misinformation about training status specifics (deferred vs. civilian sponsored) and the associated commitments. He felt pressured into signing the associated contracts for ADSC. Prior to completing his training at USUHS, he developed an interest in neurosurgery and during his last year, he pursued the specialty of neurosurgery. At that time, no prior USHUS graduate had chosen to pursue this critically needed Air Force Specialty Code (AFSC). Because this was unique, much of the information he was given about pursuing this residency program from Air Force and DOD superiors was incorrect. Since the Air Force did not offer a neurosurgery residency program, this led to him seeking support with the United States Navy (USN) and the US Army; however he was unsuccessful. He came to realize his only alternative to obtain neurosurgery residency training was with a civilian program, either in a deferred or sponsored status. Over the next 18 months, he believed that upon completion of residency program he would return to active duty and begin serving his remaining ADSC of 13 years. In Jan 93, he was able to find a spot in a residency program beginning in Jul 94, in a deferred status. Upon completion of medical school in 1993, he was transferred to Travis AFB CA for duty as a general surgery intern. He served at Travis from 1993 to 1994. On 29 Jun 94, he was informed the Air Force had made a mistake and that his status would be changed to sponsored. This meant he would incur an additional six-year commitment upon his return to active duty. Since he was in the process of being discharged, he had two hours to sign and return the commitment papers or his discharge would be effective the next day. He did accept the contract and signed for the six-year ADSC, even though the Air Force did not incur any additional educational costs. In essence, he believes he has been treated differently than other similarly military trained residents. Further, he was not given the option to attend a military residency program even though the Air Force needed him to receive the training based on future manpower needs. As a result he is under a contract of adhesion that requires his continued service beyond any reasonable period of time. In support of his appeal, the applicant’s counsel provides a brief; his Fiscal Year 1988 (FY88) UHUHS Contract; FY88 Statement of Understanding; Extension of Education Memorandum, dated 21 Dec 90; ADSC statements, and letters of support. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: Based on the available records and the Air Force office of primary responsibility (OPR), the applicant attended the USAFA from 1984 to 1988, for which he incurred a five-year ADSC. Upon graduation, he was commissioned as a second lieutenant and entered extended active duty, effective 1 Jun 88. The applicant was in leave status from 1 Jun 88 to 7 Aug 88, thereby fulfilling two months and seven days of his USAFA ADSC. The applicant entered the Armed Forces Health Professions Scholarship Program (AFHPSP) as a student at USUHS from 22 Aug 88 to 15 May 93, which included a 1 year extension, incurring an eight year consecutive ADSC. He fulfilled one month and seven days of his USAFA ADSC, when he completed a residency orientation from 15 May 93 to 30 Jun 93. On 1 Jul 93, the applicant entered a general surgery internship at David Grant Medical Center until 30 Jun 94, neither incurring nor fulfilling any ADSC. The applicant was selected for a Neurosurgery training program in a redeferred (unfunded) status; however, the Air Force subsequently approved his training from redeferred to funded (civilian sponsored) on 30 Jun 94. On 1 Jul 94, he started training through 30 Jun 00, incurring a six-year consecutive ADSC. The applicant has an active duty service commitment date (ADSCD) of 5 Mar 19. The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force. ________________________________________________________________ THE AIR FORCE EVALUATION: AFPC/DPAME recommends denial stating, in part, the applicant was offered and accepted his training location preference of civilian sponsorship, received entitlements as a result of the sponsorship and received written acknowledgement of the associated ADSC’s. He could have declined the civilian sponsorship and remained unfunded for his neurosurgery residency and spine fellowship training from 1 Jul 94 to 30 Jun 00. The applicant incurred a five-year ADSC after graduating from the USAFA. He was selected for USUHS, from 1 Jul 88 – Jun 92, and submitted a request for a one-year extension, thereby delaying his graduation date from 1992 to the class of 1993. In accordance with his USUHS contract, he incurred an eight-year ADSC and acknowledged the additional ADSC on 8 Jan 91. The contract also stipulates that no portion of the ADSC may be fulfilled while in training status. The applicant was not removed from training at USUHS from 1988 – 1993. He claims the six - year ADSC should be waived because the opportunity to train at an active duty (Air Force, Navy, Army or Department of Defense (DOD) location) was not afforded to him. Annually, each service determines their training requirements based on service specific needs. The 1993 Graduate Medical Education (GME) Selection Board considered and selected four applicants for training in Neurosurgery beginning 1 Jul 94. The out brief indicated that the applicant would be approved for funded training pending man year availability. DOD recommends 25 percent of the active duty workforce be in funded training. To comply with this recommendation, a limited number of funded man years are available each year. This was the case in 1993 and is still the case today. Although, the applicant applied for civilian sponsorship, the 1993 GME board selected him for redeferred training. However, it appears a last minute funding opportunity arose and the applicant made a quick decision and accepted the offer. The applicant could have remained unfunded with an approved separation date; however, he accepted the civilian sponsorship and processed the necessary administrative action to cancel his separation date. The complete AFPC/DPAME evaluation, with attachments, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: The applicant’s counsel explains had the applicant been required to repeat a year of medical school, he would have incurred an additional commitment. However, the applicant did not attend any additional courses nor underwent any additional periods of evaluation. Although the record may indicate he was not removed from training status, he did not receive any training during the period in question and thus should receive credit for the period of military service and should not have incurred an ADSC for additional training which was not received. The application for GME specifies that the applicant rank order his preferences for training, which was offered at both Army and Navy facilities; however, he was informed that he was not eligible to apply. No eligible programs were available in the Air Force, at the time; a policy and situation which are no longer true today. As a USHUS student, the applicant could not apply for “deferment.” During the 1993 GME, the Air Force was only offering training to future PGY1’s in a deferred status. The applicant was the first USUHS graduate to pursue neurosurgery, navigating a training pathway with varied bureaucratic constraints and receiving guidance from various sources. He had to complete the application and chose to mark PGY2/civilian sponsored which, given the information he had at the time, made the most sense. The applicant, in his position as consultant for neurosurgery for the Air Force for the past six years, has successfully set up Air Force training for residents in neurosurgery and has done everything possible to recruit by equating the commitment to that of other services and other Air Force training programs. DPAME cites three specific entitlements the applicant received as a result of sponsorship. 1) Allowing the applicant to attend Northwestern. The Air Force originally approved a six year deferment for him to complete training to become a neurosurgeon. When the first program closed, had the Air Force recalled him after he completed only four of those six years he would have been of no more use to them than had he obtained no additional training after internship. It was in the Air Force’s best interest to allow him to continue his training at a new program, particularly in a specialty that was so important for wartime needs. This was a “win/win” situation for the Air Force and the applicant, orchestrated by the applicant, but approved by the Air Force. 2) The cost for the move to the second school. Had the applicant not been sponsored, this expense would have fallen on the applicant. If this is a justification for incurring his ADSC, he will gladly reimburse the Air Force for the cost of shipment of his household goods for a six year ADSC, which bars him from pursuing additional bonuses and benefits later in his career. 3) The applicant would have received at least pay and entitlements with or without the Air Force. In fact, he had to pay for benefits that he would have received without Air Force sponsorship. The residency training came at no cost to the government. If he had been given the opportunity to train at a military medical training facility (MTF), he would have received better benefits without incurring an ADSC, such as full health coverage. The Air Force wanted to send the applicant, a USUHS graduate, to neurosurgery training without presenting him the same options available to other USUHS graduates. Through no fault of his own, the applicant was literally boxed in a contractual arrangement that extended his service commitment at no real additional cost to the Air Force when compared to other residency programs. The passage of time and hindsight has exposed these inequities of this contractual obligation. The counsel’s complete response 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. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. In addition, while we understand the applicant believes the commitments resulting from his additional time at USUHS and his neurosurgery training should not be included as ADSC, based on the available evidence of record, it appears the applicant understood the active duty service commitments associated with the training he received, agreed to, and signed the commitment contracts. Therefore, in the absence of evidence to the contrary, we find no 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(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ 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. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-00764 in Executive Session on 2 November 2010, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 17 Jan 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPAME, dated 8 Apr 10, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 4 Jun 10. Exhibit E. Letter, Counsel, dated 3 Jul 10. Panel Chair