AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

;m38= 

IN THE MATTER OF: 

DOCKET NUMBER:  97-01370 
COUNSEL:  NONE 
HEARING DESIRED:  NO 

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APPLICANT REOUESTS THAT: 
His Active  Duty  Service  Commitment  (ADSC) of  30  October  1998  be 
voided. 

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- 

APPLICANT CONTENDS THAT: 
The ADSC was added to his record without his knowledge; that he was 
never  counseled  by  the  Military  Personnel  Flight  (MPF) on  this 
ADSC; and that he never signed an AF Form 63  (Officer Active Duty 
Service  Commitment  Counselling  Statement) committing  him  to  this 
ADSC. 
Applicant's complete  statement  is  set  forth  in  Item  9  of  his 
application for correction of his military records (Exhibit A). 

STATEMENT OF FACTS: 
On  7  August  1995,  applicant,  a  captain,  was  selected  for  an 
assignment  to  Peterson AFB  CO  to  fly  the  C-21  aircraft.  This 
required him to attend Initial Qualification Training  (IQT) in the 
C-21 graduating October  1995.  As  a  result of  this  training, he 
incurred a three-year ADSC of 30 October 1998. 
According  to  the  Training  Management  System  (TMS),  applicant 
graduated  from the  C-21 course on October  1995  and  the ADSC  was 
automatically updated in the Personnel Data System  (PDS) in October 
1996.  Therefore, he  could  have  known  of  the  existence  of  the 
30 October 1998 ADSC since October 1996. 
Item 16, Remarks, of  his travel orders authorizing his attendance 
at the training stated "ADSC: 36 MQNTHS." 

AIR FORCE EVALUATION: 
HQ AFPC/DPPRP explains the reasons f o r   establishment of ADSCs, sets 
forth  the  applicant's  previous  experience  with  ADSC-incurring 
training  and  recommends  that  the  application  be  denied.  That 

office states, in part, that the three-year ADSC was clearly stated 
in  AFI  3 6 - 2 1 0 7 ,   Table  1.5, Rule  8 .  
An  assignment  notification 
message  was  sent  to  the  Dover  AFB  MPF  on  10  August  1995  with 
instructions to counsel applicant on the ADSC  to be  incurred for 
both  permanent  change  of  station  (PCS) and  training, citing  the 
specific tables and rules in AFI 36- 2107  to be used to compute the 
ADSCs. 
An  additional assignment notification was sent to Dover AFB, 
MPF, via  trailer remarks through the PDS on 7  August  1995.  This 
notification  also  provided  the  MPF  with  instructions  to  counsel 
applicant  on the ADSC  to be  incurred  for both  PCS  and  training. 
Counselling  is  normally  accomplished  during  PCS  relocation 
counseling necessary to prepare members' orders and to resolve any 
issues related to the upcoming PCS. 
Additionally,  applicant was  scheduled  to  attend  the  C-5  training 
via TMS, with a Training Line Number KBOR30575. 
This generated a 
training  allocation  notification  R I T ,   which  clearly  indicated  a 
three-year RDSC would  be  incurred, and  applicant was  required  to 
initial the following statements on the RIP, I I I   accept training and 
will  obtain  the  required  retainability" and  ''1  understand  upon 
completion of this training I will incur the following active duty 
service commitments  (ADSC) ' I .  
This quota allocation is also filed 
in the relocation folder. 
Relocation folders are destroyed a few months after the member's 
departure.  Therefore, the folders are unavailable for them to 
review to determine exactly what information was provided to 
applicant regarding either the PCS counseling or the training 
counseling.  Although MPFs are supposed to forward copies of AF 
Forms 63  to the officer's permanent files (at unit level and at 
AFPC), they sometimes neglect to do so; sometimes -  as is alleged 
in this case -  they fail to even accomplish an AF Form 6 3 .  
Although documentation of counseling does not exist and applicant 
denies that it occurred, they believe it's a reasonable presumption 
that competent counseling was provided and that applicant was in 
fact aware of the ADSC which would be incurred based on the number 
of redundant'notifications sent to the MPF.  Furthermore, given the 
routine nature of ADSCs, the common acknowledgment by Air Force 
personnel, and applicant's previous experience of receiving ADSCs 
for flying training on three different occasions, they are highly 
skeptical of any claim of unawareness regarding the ADSC. 
They also have written evidence that the applicant was provided 
information regarding the ADSC he would incur as a result of the 
training he would attend.  Specifically, the TDY travel order which 
sent him to C-21 pilot initial qualification training  (see Atch 
11).  In the llremarksll block of those orders  (item #16) is the 
annotation IIADSC:  36  months.  Applicant received these orders 
prior to departure for training, so it is difficult for them to 
understand any claim of ignorance regarding the ADSC he would 
incur. 
Furthermore, it is unlikely he could have avoided all discussions - 
either before or during PCS or training -  among colleagues, 

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classmates, or instructors which alluded -  even informally -  to the 
association of a three-year ADSC with the C-21 training. 
also unlikely that, even if he had initially been ignorant of the 
length of the ADSC, he would have blithely proceeded with the 
training after encountering such allusions, and failed to seek 
clarification of this status regarding the ADSC. 

It is 

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-In applicant's case, he still had an Undergraduate Pilot Training 
(UPT) ADSC of 14 February 1998 and a C-5 flying training commitment 
of 18 May 1998 at the time he was selected for this assignment. 
Had he declined the assignment, he may have been placed in a non- 
flying position for the balance of his commitment  (over two and a 
half years).  They are skeptical that he would have elected such an 
alternative, particularly since the three-year ADSC he was 
considering extended only five months beyond his existing UPT ADSC. 
Further, they note that applicant does not assert that he would 
have declineahthe assignment if briered on the ADSC -  in fact, he 
doesn't even,assert ignorance of the ADSC.  Therefore, in addition 
to doubting the validity of any claim of unawareness he may state 
in rebuttal to this advisory, they assert that he suffered no harm 
from what amounts to a clerical error in the documentation of the 
ADSC  counseling. 
ADSCs  for flying training are normally updated automatically upon 
graduation from the training course, via the TMS.  According to 
TMS, applicant graduated from the C-21 course on October 1995 and 
the ADSC was automatically updated in the PDS in October 1996; that 
PDS update generated an ADSC change notification RIP which was 
produced at his duty location (Peterson AFB) f o r   forwarding to him, 
so he has apparently known of the existence of the 30 October 1998 
ADSC since October 1996.  Although they are unable at this late 
date to verify the RIP was produced and delivered to applicant, 
they again rely on a reasonable presumption of regularity that the 
automated computer product was in fact produced and that, in 
accordance with routine administrative procedures, it was provided 
to applicant.  Furthermore, having verified that the ADSC was 
properly recbrded in the PDS in October 1996, they submit that 
existence of the ADSC was easily discoverable by applicant since 
that time by a simple review of his own records.  Although such 
review is no longer mandated, a prudent officer accomplishes such 
reviews from time to time  (Exhibit C with Attachments 1 through 
13). 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

Applicant states, in part, that in August  1995, he was selected by 
the AFPC for a new assignment flying C-21s at Peterson AFB, CO.  At 
that time, he was a C-5 Instructor Pilot at Dover AFB, DE.  He was 
notified of  his assignment verbally and  told to call the base MPF 
to  coordinate  the  TDY/PCS  orders. 
Throughout  the  assignment 
process, he was never  informed or counseled on any ADSCs  required 
f o r   this assignment. 

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Up to that point in his military career, all ADSCs that he incurred 
were presented to him at a formal briefing.  At those briefings, he 
was informed of the ADSC and given a choice to accept the training 
and associated commitment, or reject it and wait for other training 
opportunities.  Since he had already qualified in the C-12 (similar 
aircraft  and  mission)  during  his  first  assignment  after  pilot 
training, he did not expect any additional commitments, and did not, 
(find it unusual when he was not informed or counseled.  Also, he is 
not an expert on MPF regulations to make the determination whether 
an ADSC applies or not. 
He completed the training course on 2 6   October 1 9 9 5   and arrived at 
Peterson AFB, CO, in November 1995.  The first time he reviewed his 
personnel  records at  Peterson AFB  was  in October  1 9 9 6 .  
At  that 
time, all his ADSCs were correct  (Atch 1).  The next time he looked 
at his records in February 1 9 9 7 ,   a new commitment dated  98  Oct  30 
had appeared in his records (Atch 2):  He asked Peterson AFB MPF to 
explain to him the origin of that commitment.  They told him that 
it  was  for  a  C-21 training  class  he  had  completed  1 6   months 
earlier.  He did  not  understand how  that  commitment was  added  to 
his  records  without  his  knowledge  or  acceptance.  He  was  never 
informed or counseled on that ADSC, he never completed an AF  Form 
63, and never signed any paperwork establishing a contract between 
himself and the USAF for this training. 

P 

Since  Peterson AFB  MPF  could  not  explain  the  undocumented  ADSC, 
they instructed him to contact AFPC to resolve this problem.  Over 
a period of three months, all attempts to resolve this problem with 
AFPC were  not  properly  addressed  and  he  was  told  to  submit a DD 
149. 
In  justifying  the  removal  of  this  ADSC,  he  cites  specific 
paragraphs of the governing AFI that the Air Force failed to comply 
with and argues that compliance is mandatory as directed by USAF/CC 
directives. 
Attachment  3 ' i s   a message sent from HQ AFPC/DPP to all MPFs on the 
subject  of  "Management  of  the  Officer  Active  Duty  Service 
Commitment  Programv1.  Paragraph  3  requests  MPF  attention  in 
following AFI 3 6 - 2 1 0 7   guidelines.  The following is highlighted in 
this message "If an Officer requires training, it is Mandatory for 
him or her to be counseled and sign an AF  Form  63,  Officer Active 
Duty  Service  Commitment  (ADSC)  Counseling  Statement,  prior  to 
departing TDY ...I1 
This clearly reaffirms HQ AFPC's position on the 
requirement  to  be  counseled  prior  to  training  and  the  need  to 
document it on an AF Form 6 3 .  
Attachment  4 is  an  extract  of  a  slide presentation  given by  the 
Chief,  Retirements  and  Separations  Division, HQ  AFPC. 
In  this 
presentation,  the  chief  reaffirms  the  "AF  Intent : 
members  be 
counseled prior to incurring ADSCs, and they voluntarily incur the 
In  addition,  "AFI 3 6 - 2 1 0 7   directs  documentation of  ADSC 
ADSC.Il 
counseling on AF Form 63 (unless otherwise specified in the AFI)." 

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Attachment  5 is a message  sent  from HQ AFPC/DPSFM to all MPFs  on 
the subject of "Management of Active Duty Service Commitment  (ADSC) 
Program. 
Paragraph 2 directs the use of plain English statement 
describing the ADSC to be  incurred.  It reads  'IYou will incur the 
following  ADSC  IAW  AFI  36-2107  for  this  training  ( )   Years  ( )  
Months.  This statement is not on his TDY/PCS orders.  The obscure 
notation  found in his  orders was never brought  to his  attention,, 
mor  does  it  clearly  specify  that  he  will  incur  a  commitment. 
[NOTE:  This message was  sent  to the MPFs well  after applicant's 
TDY orders were issued]  As an officer, he is required to obey all 
lawful orders, written or verbal, regardless of his agreement with 
the order.  Orders are issued to an individual for compliance, not 
for agreement or signature.  Therefore, it is not a valid voluntary 
agreement between him and the USAF. 
Based  on USAF  regulation AFI  36-2107, the  burden  rests with  the 
USAF  to  ensure  that  individuals  are  properly  counseled. 
Full 
compliance with  this  regulation will  ensure  that  all  individuals 
are counseled on all ADSCs and incur such commitments freely.  Part 
of  this  counseling  involves the  signing of  the  AF  Form  63  that 
becomes  the  legal  binding  contract  between  the  USAF  and  the 
individual.  Since  no  such  contract  exists  between  him  and  the 
USAF, how can he be  responsible for something he never agreed to? 
Therefore, the ADSC dated 30 October 1998 should be deleted. 
The  AFPC  advisory  opinion  alleges  that  under  normal  procedures, 
many RIPs regarding this ADSC were produced and should be  part  of 
his personnel records.  Such RIPs would have been given to him  at 
Dover AFB and Peterson AFB.  Why is it then, not a single copy of 
such documents can be found in his personnel records? 
In  response  to  AFPCIs  statement  that  "We  cannot  detect  any 
significant harm which he  has experienced or will experience as a 
result  of  serving  his  commitment," he  advises  that  he  has  been 
hired by the United States Air Force Reserves at Dover AFB, DE, as 
a C-5 pilot.  All agreements were based on his separation from the 
USAF in May'98.  He will lose that job if he  is not able to start 
C-5 requalification training by May 98. 
In summary, applicant states that  he  was not  aware of  this ADSC. 
He was not properly counseled and never signed an AF Form 6 3   or any 
other contract between him and the USAF.  To this day, no attempts 
have been made by  the USAF to counsel him  as directed  in AFI  3 6 -  
2107,  Chapter 1, Paragraph 1.9.5.  Nor has AFPC been able to find 
any  documents  to  support  any  of  their  assumptions.  Applicant's 
complete  statement  is  included  as  Exhibit  E  with  Attachments  1 
through 5. 

ADDITIONAL AIR FORCE EVALUATIONS: 
On 5 December 1997, copies of  the United States District Court f o r  
the Eastern District of California decision in the case of Captain 
David  T.  DeGavre v.  Sheila Widnall  and  a  recent  AFPC/JA  opinion 

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concerning the impact of this decision on applications for removal 
of  ADSCs  were  forwarded to  the  applicant  for  review and  comment 
(Exhibit F with Attachments 1 &  2). 
In discussing the court case, HQ AFPC/JA states, in part, that as a 
litigation  matter,  the  decision  has  limited  precedential  value 
simply because it is a single U.S. District Court decision; L e .  , , 
technically, the case must be followed only in that district where 
the decision was rendered.  Nevertheless, in their view, the case 
may  be  cited  as persuasive  authority  (that is, the  reasoning  is 
sound  and  emanates  from  a  distinguished  federal  court)  for  two 
basic propositions:  (a) Pursuant to AFR  36-51, para  (4) (b), the 
absence of an Air Force Form 63 and even the absence of evidence of 
ADSC counseling do not compel the invalidation of an ADSC; and  (2) 
Evidence  that  an  officer  benefited  from  training  and  acted 
unreasonably in failing to investigate the length of his ADSC  are 
valid reasons,for  denial of an ADSC -peal. 

The bottom line for the AFBCMR?  They are not obligated to follow 
the  Court's  decision  in  the  DeGavre  case;  however,  that  case 
provides  the  best  (and only, at  this  point)  judicial precedent 
available  anywhere  and  would  constitute  persuasive  authority  to 
support future BCMR  decisions to deny ADSC  waiver  requests under 
similar circumstances.  They would analogize this situation to that 
facing the AFBCMR  followiqg the  court's decision  in Detweiler V. 
Pena, 38 F.3d 591  (D.C. Cir. 1994)  -  wherein it was determined that 
the  Board  would  follow that decision notwithstanding  that  it  too 
was only a single court decision that the Board could have arguably 
chosen  to  ignore.  Thus,  like  Detweiler,  although  the  DeGavre 
decision has, in a technical sense, only limited precedential value 
for  litigation  purposes,  it  provides  legitimate  persuasive 
authority  to  cite  in  support  of  the  rationale  explained  therein 
(See Attachment 2 to Exhibit F). 

APPLICANT'S RESPONSE TO ADDITIONAL AIR FORCE EVALUATIONS: 

b 

Applicant  advises  that  he  does  not  wish  to  add  any  additional 
information to his existing case  (Exhibit G). 

THE BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
law or regulations. 
2.  The application was timely filed. 
3.  Insufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  a probable  error  or  an  injustice 
warranting favorable action on the applicant's request that his 
ADSC of  30 October 1998 be voided.  Applicant's contention that 
the ADSC was added to his record without  his knowledge; that he 

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/ 

was never counseled by  the MPF  on this ADSC; and that he never 
signed  an  AF  Form  63  (Officer Active  Duty  Service  Commitment 
Counseling Statement) committing him to this ADSC appears to have 
merit.  Because of the reasons stated hereinafter, however, we do 
not  find the lack of  counseling and the failure to sign the AF 
Form  63  acknowledging  the  ADSC  sufficiently  compelling  to 
conclude that his ADSC should be voided. 
4 .   The Air Force admits that no documentation exists to prove 
that  the  applicant  was  counseled  of  the  three-year  ADSC  for 
attending IQT.  Nonetheless, because of the applicant's extensive 
experience with ADSC-incurring events, the elaborate procedures 
in place to ensure counseling, the Air Force speculates that the 
applicant was indeed aware of the three-year ADSC notwithstanding 
the  lack  of  documentary  evidence  of  that  awareness.  The  Air 
Force notes that the three-year ADSC was timely recorded in the 
PDS in October  1996  and was available for discovery during any 
records review as is prudently accomplished from time-to-time by 
most officers:  Lastly, the Air Force notes that the applicant's 
TDY orders which sent him  to the training are annotated in the 
remarks block: ItADSC: 36 monthsll; and that the applicant received 
these orders prior to departure for training.  Therefore, it is 
difficult for them to understand any claim of ignorance regarding 
the ADSC he would incur. 

, 

In  interpreting  a  recent  court  decision  concerning  the 
5. 
validity of  imposing ADSCs for training programs in the absence 
of documented counseling, AFPC/JA concedes that the decision must 
be  followed  only  in  the  district  where  it  was  rendered. 
Moreover,  it  is the view  of  AFPC/JA  that  this  decision is not 
binding on us in any manner.  Nevertheless that office believes 
the decision may be  cited as persuasive authority  (that is, the 
reasoning  is  sound  and  emanates  from  a  distinguished  federal 
court) for two basic propositions: 

a.  PurSuant  to  the  prevailing  regulation/instruction, the 
absence of an Air Force Form 63 and even the absence of evidence 
of ADSC counseling do not compel the invalidation of an ADSC. 

b.  Evidence  that  an  officer  benefited  from  training  and 
acted unreasonably  in  failing to investigate the  length of  his 
ADSC  are valid reasons for denial of an ADSC appeal. 
In  deference  to  the  legal  expertise  of  AFPC/JA, the  applicant 
appears to have no legal right removal of his ADSC because of the 
Air  Force's failure  to  properly  counsel  him  and  give  him  the 
opportunity  to  accept  or  decline  the  C-21  IQT.  Since  we  are 
empowered to grant relief based on injustice, however, the lack 
of  a legal entitlement is not  totally dispositive of the merits 
of his case. 

Unfortunately  for  the  applicant,  we  find  no  error  or 
6 .  
injustice  in  the  imposition  of  the  three-year  ADSC  for  his 

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. 

completion of the C-21 IQT.  The evidence supports the fact that 
the  applicant  was  not  timely  counseled  as  required  by  the 
prevailing Air Force Instruction.  Nonetheless, as noted by  the 
Air Force, the three-year ADSC was updated in the PDS in October 
1996, and he could have known of its existence as of that month. 
Moreover,  the  TDY  orders  that  he  received  and  presumably 
carefully reviewed to determine his  reporting date  for the  IQT  , 
and his entitlements indicate an ADSC of 36 months.  In view of 
the foregoing, we believe the applicant was aware of  the three- 
year  ADSC  prior  to  attending  the  flying  training,  but,  for 
reasons of his own, failed to timely raise the issue.  Therefore, 
we conclude that the applicant was aware of the three-year ADSC 
notwithstanding the lack of counseling by his MPF;  and that he is 
obligated to serve the ADSC  unless sooner relieved by  competent 
authority. 

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. 

The following members of the Board considered this application in 
Executive Session on 12 February  1998, under the provisions  of 
AFI 36-2603: 

Mr. LeRoy T. Baseman, Panel Chairman 
Mr. Benedict A. Kausal, IV, Member 
Mr. Henry Romo, Member 

The following documentary evidence was considered: 

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Exhibit A .   DD Form 149, dated 2 May 1997, with Attachments. 
Exhibit B.  Microfiche Copy  of Applicant's Master Personnel 

Records. 

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Exhibit C.  Letter, HQ AFPC/DPPRP, dated. 10 September 1997, 
Exhibit D.  Letter, SAF/MIBR, dated 29 September 1997. 
Exhibit E.  Letter from Applicant dated 15 October 1997, 

with Attachments. 

Exhibit F.  Letter from AFBCMR, dated 5 December 1997, with 

with Attachments. 

Attachments. 

Exhibit G.  Letter from Applicant, dated 8 December 1997. 

I 

Panel Chair 

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