I 

SECOND ADDENDUM TO 

RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

IN THE MATTER OF: 

DOCKET NUMBER:  86-04014 
COUNSEL :  NONE 
HEARING DESIRED:  NO 

SEP 0 3  1998 

APPLICANT REQUESTS THAT: 

His  records be  corrected to show that he  did not  complete medical 
school  under  the  Uniformed  Services  University  of  the  Health 
Sciences  (USUHS);  that  he  attended  medical  school  at  his  own 
expense  in  an  education  delay;  and  that  the  Active  Duty  Service 
Commitment  (ADSC) associated with graduating from USUHS be voided. 

APPLICANT CONTENDS THAT: 

While  at  the  United  States  Air  Force  Academy  (USAFA),  he  was 
counseled that he would  receive four years of constructive service 
credit  upon  graduating  from  USUHS;  that  he  relied  on  this 
counseling in making his decision to attend USUHS; and that, had he 
known of a change in constructive service policy prior to attending 
medical  school,  he  probably  would  have  foregone  this  opportunity 
and remained in the Air Force as a line officer. 

STATEMENT OF FACTS: 

Applicant,  a  lieutenant  colonel,  is  a  member  of  the  USUHS 
graduating  class  of  1987.  Prior to his  entry  into  the  USUHS,  he 
served  on  active  duty  for  four  and  one-half  years  as  a  civil 
engineer upon his graduation from the USAFA in 1979. 
Prior  to  entering  USUHS  in the  Fall of  1983, on May  24, 1983, he 
signed a STATEMENT OF UNDERSTANDING FOR  AIR  FORCE APPLICANTS which 
states,  among  other  things,  that  service performed  while  a member 
of  the  program  is  not  counted  in  computing  years  of  service 
creditable for basic pay. 
In an application to the AFBCMR, dated June 13, 1985, the applicant 
requested  that  he  be  awarded  four  years  of  constructive  service 
credit  for pay  and  retirement for the time spent in the Uniformed 
Services University  of  the  Health  Sciences  (USUHS).  He  contended 
that his recruitment and counseling regarding the service credit to 
be  awarded  for  completion  of  USUHS  were  erroneous  because  he  was 
not  advised  of  the  changes  in  entitlements  resulting  from  the 

Defense  Officer  Personnel  Management  Act  (DOPMA),  which  was 
effective  September  15,  1981.  He  indicated  that  he  was  now 
committed to a lengthy period of active duty and believed he should 
be  accorded  the  pay  and  benefits  which  were  represented  to  him 
prior to making his commitment. 
Applicant‘s  case  was  considered  and  denied  by  the  Board  on 
January 15, 1987.  The Board was  not persuaded that  the applicant 
had  been miscounseled  concerning the  change in law that precluded 
constructive  service credit for USUHS graduates for computation of 
basic pay  subsequent to September 15, 1981.  The Board noted  that 
there  were  inconsistencies  in  counseling  at  USUHS,  but  believed 
applicant had some responsibility to ensure he had clarification of 
any questionable area prior to signing the contract which committed 
him  to  serve  on active  duty.  Thus,  the  Board  found  insufficient 
evidence  to  negate  the  terms  of  the  written  contract  applicant 
signed on May 24, 1983  (Exhibit AA with Attachments). 
In another  application  to the Board  of August  26, 1987, applicant 
requested  correction  of  his  Promotion  Eligibility  Date  (PED) to 
allow full credit for prior commissioned service on active duty as 
a  civil engineer.  He  contended that his experience and  education 
in  engineering  warranted  award  of  credit  under  the  category 
“unusual  qualifications  or  special  education”  allowed  by  DOD 
Directive 1320.7. 
An  advisory  opinion  from AFPC  (formerly AFMPC)  recommended denial 
of  this  application. 
It  was  indicated  that  while  engineering 
experience may  be  beneficial  for an  orthopedic surgeon, it  cannot 
be proven  that  the experience is needed  in order for applicant  to 
be a successful surgeon.  Thus, it was indicated that granting full 
credit to applicant for his line officer time was not supported by 
the  directives  and  would  be  inconsistent and  unfair  to  others  in 
the same situation. 
This case was considered and denied by  the Board on June 14,  1988, 
and applicant was advised accordingly.  He was also advised of his 
right  to  submit  new  relevant  evidence  for  reconsideration by  the 
Board  (Exhibit BB with Attachments). 
By  letters  of  August  21,  1989,  and  January  7,  1991,  applicant 
requested  reconsideration  of  both  of  his  applications. 
He 
continued  to  believe  that  his  prior  service  as  a  civil  engineer 
warranted  additional  service credit under the category of  “unusual 
qualifications  or  special  education”  allowed  by  DODD  1320.7.  He 
also  disputed  the  propriety  of  the  DOD  policy  which  limited  the 
credit he received for his prior commissioned service.  Lastly, he 
argued that his  original application was  similar to  the case of a 
1987 graduate  of the Health Professions Scholarship Program  ( H P S P )  
which was recently approved by the Board. 
On April  2 5 ,   1993,  the  Board  reconsidered the  applicant‘s request 
for  full  service  credit  as  a  line  officer  because  of  his 
engineering  experience. 
However,  the  Board  did  not  find  his 
unsupported  assertion  sufficiently  persuasive  to  override  the 

2 

AFBCMR 86-04014 

opinion of the Office of The Judge Advocate General that his entry 
grade  credit  was  computed  consistent  with  the  DODD  and  the 
applicable  regulation. 
Therefore,  the  Board  agreed  with  that 
office and adopted its rationale as the basis for its decision that 
the applicant's  request .for reconsideration be denied  (Exhibit CC). 
On  May  4,  1993,  the  Board  reconsidered  and  again  denied  the 
applicant's  request  f o r   constructive  service  credit  for  the  time 
spent in medical  school at USUHS.  The Board noted that an earlier 
panel  denied  applicant's  case because  of  insufficient evidence to 
show that he was detrimentally miscounseled.  The panel noted that 
there were  some inconsistencies in the information provided to the 
applicant  by  USUHS.  Nonetheless,  the  panel  believed  that  he  had 
some  responsibility  to  insure  that  he  had  clarification  of  any 
questionable area prior to signing the contract which committed him 
to the service. 
Concerning the allegation that a similar case had been granted for 
another applicant, the Board noted that this individual, unlike the 
applicant,  presented  clear-cut  evidence  of  miscounseling  on  the 
part  of  responsible  Air  Force  Academy  personnel. 
He  also 
established to the satisfaction of the Board that it was reasonable 
for  him  to  have  relied  on  the  counseling  received  from  those 
individuals.  On the other hand, the applicant relied on affidavits 
from himself and some of his USUHS classmates, statements submitted 
by  the  USUHS  Registrar/Director  of  Admissions  and  the  USUHS 
President/Dean, inaccuracies in the 1983 -  1984 USUHS Bulletin, and 
the  absence  of  a  specific  reference to  the  DOPMA  changes  in  some 
briefing  outlines purportedly  used  by  the  individuals who  briefed 
the program for USUHS. 
The  Board  noted  that  the  sworn  statements  from  the  officers 
similarly situated were  self-supporting and, as a consequence, not 
sufficiently  compelling. 
The  statements  submitted  by  the  USUHS 
Registrar/Director of Admissions conceded that it was very possible 
that a given segment of the Class of 1987 could have, and probably 
did,  receive inaccurate  or  incomplete information from any  number 
of  official/semi-official  sources  concerning  the  effects  upon 
entitlements  due  to  the  DOPMA  legislation;  and  that  all  this 
obviously  had  resulted  in  a  confused  and  misinformed  population. 
However,  the Board noted that this official never wavered from his 
assertion  that,  when  he  briefed,  he  told  applicants  that  due  to 
changes  under  DOPMA,  USUHS  graduates  would  no  longer  receive 
longevity credit for pay purposes and the 1983- 1984 USUHS Bulletin 
was incorrect by stating they would. 
The  Board  further  noted  that  the  only  statement  from  a 
disinterested  party  that  was  at  variance  with  the  statements from 
the  USUHS  Registrar/Director  of  Admissions  was  the  most  recent 
statement  from  the  USUHS  President/Dean.  That  individual  stated 
that  based  on  his  meetings  with  members  of  the  1987  USUHS 
graduating  class,  he  concluded  that  at  some  of  the  briefings 
presented  by  the  USUHS  Registrar/Director of  Admissions,  specific 
details  regarding  service  creditable  for  basic  pay  were  not 

3 

AFBCMR 86-04014 

the 

credibility 

of 

the 

to 

impeach 

included  or  that  a  change  in this  aspect was  implied.  The Board 
believed,  however,  that  other  than  the  fact  that  the  U S U H S  
President/Dean  believes  the  students,  this  statement  added  little 
to the case.  Consequently,  the Board did not  find this statement 
sufficient 
U S U H S  
Registrar/Director  of Admissions  who unequivocally stated t h a t   his 
briefings  were not misleading,  and that he corrected the erroneous 
information in the school bulletin regarding service credit. 
Lastly,  the  Board  stated  that  the  granting  of  requests  from  the 
majority of the 1985 and 1986 HPSP classes and the one request from 
the  HPSP  class  of  1987  on  the  basis  of  miscounseling/presumptive 
evidence  of  miscounseling  and/or  parity  within  their  peer  group 
would  undoubtedly  precipitate  similar  requests  from  the  remainder 
of  the  1987  and  subsequent  medical  training  classes.  The  Board 
noted,  however,  that  the  plain  and  unambiguous  language  of  the 
applicable  law  leaves  no  doubt  that,  for  whatever  reason,  the 
Congress  intended that, effective September 15, 1981, graduates of 
government-sponsored medical school would no longer be entitled to 
constructive  service  credit  for  computation  of  basic  pay. 
Therefore, in the absence of clear-cut evidence of miscounseling by 
responsible  personnel  and  a  showing that  it was  reasonable for an 
individual  to  have  relied  on  such  information  years  after  the 
effective date of the law, the Board  found no compelling reason to 
recommend relief in the future.  Any  further relief on the basis of 
equity, in the Board's view, should be addressed to the Congress in 
the form of a request for an amendment of the statute  (Exhibit DD). 
In  a  letter,  dated  March  14,  1998,  the  applicant  requests 
reconsideration  of  his  earlier  application  for  award  of 
constructive credit for time spent at USUHS.  H e   now  asks,  however, 
that  h i s   records  be  corrected  t o   show  that  he  did  not  complete 
medical  school  under  USUHS,  but  that  he  attended  medical  school  a t  
h i s   own  expense  i n   an  education  delay.  H e   a l s o   asks  that  the  ADSC 
associated  with  graduating  from  USUHS  be  voided. 
Applicant  states, in part, that he has recently discovered two new 
pieces  of  evidence  that  support  his  steadfast  claim  that  he  was 
never  counseled  as  to  a  change  in  law  (DOPMA).  In  the  Board's 
previous  review of his case, they noted ". . .  some doubt is present 
as  to  whether  or  not  all  individuals  in  the  1987  class  received 
complete  counseling  pertaining  to  this  area.... 
He  now  has 
acquired new evidence to support his strong contention that he was 
never  counseled  regarding  changes  in  constructive  service  credit, 
and  it was  not  until  the  time  of his  original application  to  the 
Board, that he discovered this change. 
The  first  x, 
case.  In 
-. this. letter, 
tates Air 
Force Academy  graduates-  who have not  received constructive credit, 
even  though  they  had  the  same  identical  counseling  as  the  19 
graduates  who  have  received  constructive credit."  He  goes  on  to 
and 
mention  him  by  name:  "Therefore to  exclude  Doctors 

liece  of  new  evidence  is  a  not 
submitted in support of 
notes:  "This leaves t 

from 

- 

I# 

4 

AFBCMR 86-04014 

third graduate], who were counseled while at USAFA, out of 
*[the 
fear  of  additional  claims  would  be  an  egregious  injustice."  The 
point  of this letter, he believes  is that he was  counseled at the 
Academy and he relied on this information.  No new inform3tion was 
ever  provided!  The  USUHS  Bulletin  (amended the  following  year), 
interviews  (both in his  informal interview at  USUHS  in the summer 
of  1981  and  his  official  interview  in  San  Francisco  in  December 
1982), USUHS  acceptance letters  (amended in subsequent years), and 
other information did not reflect any change in policy. 
The second piece of new evidence is a notarized statement by- 

e his immediate supervisor a 

eles Air Force Station when 
he  was  applying  to  USUHS. 
also  an Air  Force Academy 
graduate,  strongly  supports 
ntion  that  he  was  never 
counseled  about  any  changes  in  service  credit. 
He  further 
indicates  that  he  relied  on  this  miscounseling .(or  lack  of 
r  decisions early in his Air 
counseling)  to make  irrevo 
Force career.  He relied on 
as a career advisor, and they 
discussed career opportunit 
gular basis.  Neither of them 
was  aware of any policy  changes at  that time.  His  statement also 
addresses  the USUHS  contract issue.  Although  it is true 
of them signed this contract  (including many  individuals 
subsequently been  awarded  credit  through  the  Board),  as 
points out, he had a short suspense to return the document and was 
not  counseled  that  it  included  any  changes  to  what  he  was 
previously told or had read. 
In addition to this new evidence, he appeals to the Board to review 
his previous  application  (excerpts attached -  Attachments 3  -  14). 
Note  in  particular,  the  school  Bulletin;  acceptance  letter; 
affidavits  from himself  and  two  USUHS  classmates who  attended  the 
same interview;  the outline of the  interview given to him  and  the 
outline  of  the  interview  given  the  following  year;  and  a  letter 
from the former USUHS Dean that states " ... a percentage of members 
of the Class of 1987 were either not or were inaccurately informed 
of  the  impact of  DOPMA on basic pay .... "  In a  subsequent letter, 
he concluded: 

I would urge that each petition be considered specifically 
as to whether  the  individual petitioner  states he/she was 
either  not  informed  or  misinformed. 
As  Air  Force 
officers, I would accept their specific statements. 

He  hopes  that  the  Board 
He  simply  asks  for  that  courtesy. 
recognizes  that,  like others before  him,  he  deserves  this  service 
credit.  He has been an exemplary Air  Force officer since entering 
the  Air  Force  Academy  in  1975.  Despite  uninterrupted  service  in 
uniform for 23 years, he has only been awarded "partial" credit for 
both  longevity and pay purposes throughout his  career.  This DOPMA 
issue has had a very negative career impact. 
In. conclusion,  applicant  states  that  had  he  known  of  a  change  in 
constructive  service policy  prior  to  attendinq medical  school, he 

Air Force as a line officer.  In that case, he would be eligible to 
retire in May  1999.  He asks that the Board provide  him with  that 
opportunity.  This action would not be unprecedented.  In a similar 
case, the Board  took action  to  correct the military  records of an 
applicant to show that he did not complete medical school under the 
Armed  Forces  Health  Professions  Scholarship  Program  (AFHPSP), but 
that  he  attended  medical  school  at  his  own  expense  in  an 
educational  delay  and  voided  all  Active  Duty  Service  Commitments 
(ADSCs)  associated  with  that  program. 
Applicant's  complete 
statement  and  documentary  evidence  submitted  in  support  of  his 
request  for  reconsideration  are  included  as  Exhibit  EE  with 
Attachments 1 -  14. 

THE BOARD CONCLUDES THAT: 

1.  Insufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  a  probable  error  or  injustice 
warranting  favorable  action  on  the  applicant's  request  for  a 
correction  of  records  to  show  that  he  did  not  complete medical 
school  under  the  Uniformed  Services  University  of  the  Health 
Sciences  (USUHS);  that  he  attended  medical  school  at  his  own 
expense  in  an  education  delay;  and  that  the  Active  Duty  Service 
Commitment  (ADSC) associated with graduating from USUHS be voided. 

2.  Applicant contentions that while at the United States Air Force 
Academy  (USAFA), he was counseled that he would  receive four years 
of constructive  service credit upon graduating from USUHS; that he 
relied  on  this  counseling  in making  his  decision to  attend USUHS; 
and,  that had  he  known of a  change in constructive service policy 
prior  to attending medical  school, he probably would have foregone 
this  opportunity  and  remained  in  the  Air  Force  as  a  line officer 
are  duly  noted. 
However,  because  of  the  reasons  set  forth 
hereinafter,  we  do  not  find  these  assertions  sufficiently 
persuasive  so  as  to  conclude  that  the  relief  sought  should  be 
granted.  In this regard, we note that: 

a.  In his original application of June 13, 1985, the applicant 
contended that his recruitment and counseling regarding the service 
credit to be awarded for completion of USUHS were erroneous because 
he  was  not  advised  of  the  changes  in  entitlements resulting from 
the  Defense  Officer  Personnel  Management  Act  (DOPMA), which  was 
effective  September  15,  1981. 
He  indicated  that  he  was  now 
committed to a lengthy period of active duty and believed he should 
be  accorded  the  pay  and  benefits  which  were  represented  to  him 
prior  to making  his  commitment.  This  request  was  considered  and 
denied on January 15, 1987. 

b.  In  another  application  of  August  26,  1987,  applicant 
requested  correction  of  his  Promotion  Eligibility  Date  (PED) to 
allow full credit  for prior  commissioned service on active duty as 
a  civil engineer.  He  contended that his experience and  education 
in  engineering  warranted  award  of  credit  under  the  category 

6 

AFBCMR  86-04014 

"unusual  qualifications  or  special  education"  allowed  by  DOD 
Directive  1320.7.  This  application was  considered and  denied  on 
June 14,  1988. 

c.  In  letters  of  August  21,  1989,  and  January  7,  1991, 
applicant  requested  reconsideration  of  both  of  his  applications. 
He continued to believe that his prior service as a civil engineer 
warranted  additional  service credit under the category of  "unusual 
qualifications  or  special  education" allowed  by  DODD  1320.7.  He 
also  disputed  the  propriety  of  the  DOD  policy  which  limited  the 
credit he received for his prior commissioned service.  Lastly, he 
argued  that his  original application was  similar to the case of a 
1987  graduate  of  the  Armed  Forces  Health  Professions  Scholarship 
Program  (AFHPSP) which was recently approved by the Board. 

been 

d.  Having 

unsuccessful 

for 
reconsideration  of his applications, for the first time, applicant 
asserts that he was  counseled that he would  receive four years of 
constructive  service  credit  upon  graduating  from  USUHS  while  a 
cadet  at  the  USAFA.  He  also  argues  for  the  first  time  that  he 
relied  on this  counseling in making his  decision to attend USUHS; 
and, that had  he  known of a change in constructive service policy 
prior  to attending medical  school, he probably would have foregone 
this opportunity and remained in the Air Force as a line officer. 

in 

his 

requests 

3.  Since  the  applicant  attended the USAFA  during  the period  1976 
through  1979,  any  briefings  he  received  concerning  constructive 
service  credit  for  attending  medical  school  under  the  AFHPSP  or 
USUHS  were  undoubtedly  correct.  Therefore, we  do  not  take  issue 
with  his  allegation  that  he  was  counseled  he  would  receive  four 
years  of  constructive  service  credit  upon  graduating  from USUHS. 
We are not convinced, however, that he relied on this counseling in 
making his decision to attend USUHS.  Nor are we persuaded that had 
he  known  of  a  change  in  constructive  service  policy  prior  to 
attending  medical  school,  he  probably  would  have  foregone  this 
opportunity and remained in the Air  Force as a line officer.  This 
belief is supported by  the statement from his  former supervisor in 
the  Line  of  the  Air  Force.  This  retired major  advises  that  the 
applicant  applied  to  several medical  schools, including the  USUHS 
for  the  1981 entering  class, but  because  he  did  not  complete the 
prerequisite undergraduate courses, he was not successful.  Because 
applicant  felt  that  it  would  take more  than  one  year  to  complete 
all  of  the  necessary  courses,  he  set  his  sights  for  the  1983 
medical  school  entering  class  for  USUHS  and  several  civilian 
schools.  Applicant  was  very  successful in his  post-graduate work 
and  by  the  Winter  of  "1992/1993" 
(sic),  he  had  several 
interviews/offers  for medical  school.  By  this  time,  however, the 
Defense  Officer  Personnel  Management  Act  (DOPMA)  had  become 
effective  and  disallowed  the  four  years  of  constructive  service 
credit  for  pay  and  retirement  for  those  individuals who  were  not 
enrolled  in  medical  school  on  or  before  September  14,  1981. 
Granted, the applicant could have been  induced to pursue a medical 
career by  the briefings  received as  a  cadet during  the  years  1976 
through  1979.  However, by  the  time  he  met  the  prerequisites and 

7 

AFBCMR 86-04014 

was  accepted  for medical  school,  DOPMA  had  changed  the  benefits. 
Therefore,  absent  a  showing  that  the  Air  Force  had  a  regulatory 
duty  to  apprise  him  of  the  changes  in  the  program  while  he  was 
serving  in  the  Line  of  the  Air  Force,  he  had  a  personal 
responsibility  to seek out any  information he believed relevant to 
his  decision  to enter  USUHS  subsequent to  the  change  in the  law. 
In addition,  according to the statement from his  former supervisor 
in  the  Line  of  the  Air  Force,  he  signed  a  STATEMENT  OF 
UNDERSTANDING  FOR AIR FORCE APPLICANTS, which clearly placed him on 
notice  that  service  performed  while  a  member  of  USUHS  is  not 
counted  in  computing  years  of  service  creditable  for  basic  pay, 
prior  to obtaining approval of his request for separation in order 
to  accept  a  Reserve  commission  to  attend  USUHS. 
If  the 
constructive  service credit for pay was crucial to his decision to 
attend USUHS, he had every opportunity to withdraw his resignation 
from  his  Regular  Air  Force Appointment  and  remain  in the Line  of 
the Air Force. 

4.  We  realize that  our  earlier actions in approving the requests 
of  a  number  of AFA  graduates who  graduated  from USUHS  or  HPSP  in 
the  classes  of  1987  through  1989 cause  a  degree  of  institutional 
inequity and, at first blush, would  seem to beg  for relief on the 
grounds  of  equity.  As  we  have  previously  stated,  however,  the 
plain  and  unambiguous  language  of  the  applicable  law  leaves  no 
doubt  that,  for  whatever  reason,  the  Congress  intended  that 
effective  September  15,  1981,  these  graduates  of  government- 
sponsored  medical  training  would  no  longer  be  entitled  to 
constructive  service  for computation of basic  pay.  Therefore, we 
continue  to believe  that  any  relief  on the basis  of  institutional 
inequity  should  be  addressed  to  the  Congress  in  the  form  of  a 
request  for  an  amendment  to  the  statute.  Such  action could  take 
into consideration  the denial  of 22 Air  Force officers’ cases who 
graduated  from USUHS  in  1987, but  were  not  AFA  graduates; the  35 
similar  cases  denied  by  the  Navy  BCNR;  and  the  approximately  200 
like  cases  denied  by  the  Army  BCMR.  Consideration could also  be 
given to the 340 1987 Air  Force graduates from AFHPSP and the 1988 
and  1989  graduates  of  AFHPSP/USUHS  who  were  apparently  properly 
counseled  or  have  decided  to  accept  the  terms  of  their  signed 
contracts  notwithstanding  the  fact that  there  are a number of AFA 
graduates  who  graduated  from medical  school in  1987-1989 that  are 
entitled to the pre-DOPMA constructive service credit for pay. 

THE BOARD DETERMINES THAT: 

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

8 

AFBCMR 86-04014 

The  following members  of  the  Board  considered  this application  in 
Executive  Session  on  3  June  1998,  under  the  provisions  of  AFI 
36-2603: 

Mr. LeRoy T. Baseman, Panel Chair  . 
Mr. Charles E. Bennett, Member 
Mr. Henry C. Saunders, Member 

The following documentary evidence was considered: 

Exhibit AA.  Record of Proceedings, AFBCMR 86-04014, 

Exhibit BB.  Record of Proceedings, AFBCMR 87-04357, 

dated 1 May  87, w/atchs. 
dated 15 Jul 88, w/atchs. 

87-04357, dated 3 Aug  93. 

Exhibit CC.  Addendum to Record of Proceedings, AEBCMR 

Exhibit DD.  Addendum to Record of Proceedings, AFBCMR 

86-04014, dated 29 Jul 93. 

Exhibit EE.  Letter from Applicant, dated 14 Mar 98, w/atchs. 

Panel Chair 

9 

AFBCMR 86-04014