3UL 2 4 1998 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

* 

DOCKET NUMBER:  97-02268 
COUNSEL:  NONE 

. 

HEARING DESIRED:  NO 

I 

APPLIC'ANT REQUESTS THAT: 

His Active Duty Service Commitment  (ADSC) be changed to April 1999, 
rather than May 2001. 

APPLICANT CONTENDS THAT: 

He Mas not counseled that he would incur any service commitment for 
initial qualification in the KC-10; and that he has not signed any 
documentation accepting the ADSC. 

- 

4 

Applicant's  request is at Exhibit A. 

STATEMENT OF FACTS: 

Applicant was  selected for PCS  reassignment to 
AFB  and  to 
fly  the  KC-10.  He  apparently  completed  the  flying  training  and 
incurred a five-year ADSC of 1 May 2001. 

AIR FORCE EVALUATION: 

HQ AFPC/DPPRS sets forth the reasons for establishment of ADSCs for 
flying  training,  provides  summary  of  the  applicant's 
prior 
experience  with  ADSC-incurring  events  and  recommends  that  the 
application be  denied.  It is indicated, in part, that counseling 
is normally accomplished during PCS relocation counseling necessary 
to prepare members'  orders and to resolve any issues related to the 
upcoming  PCS. 
However,  relocation  folders  are  destroyed  a  few 
months after the member's  departure, so are unavailable for them to 
review  to  determine  exactly  what  information  was  provided  to 
applicant.  Although  MPFs  are  supposed  to  forward  copies  of  AF 
Forms  63 to  the  officer's  permanent  files  (at unit  level  and  at 
sometimes -  as is alleged 
AFPC), 
in this case -  they fail to even accomplish an AF  Form 63.  (They 
suggest  that  could  be  due  to  the  MPF  clerk's  confusion regarding 
PCS  ADSC  counseling,  which  requires  no  documentation,  and  the 
training ADSC  counseling, which  occurred simultaneously.  Although 

they  sometimes neglect to do so; 

the  latter  should have  been  documented, it  is  possible  the  clerk 
mistakenly  assumed otherwise.)  However, although documentation of 
that counseling does not exist, applicant denies that it occurred, 
and  a  copy  of  the  PCS  notification RIP  is no  longer  available to 
permit  verification  of  applicant's 
signature  accepting  the 
assignment,  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 for training  (Exhibit C 
with Attachments 1 through 6). 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

Applicant  submits an in-depth response to the advisory opinion and 
continues to maintain that he was not counseled concerning the ADSC 
in question  (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 probable error or injustice warranting 
favorable  action  on  the  applicant's  request  that  his  ADSC  be 
changed  to April  1999, rather than May  2001.  In this  regard, we 
note that: 

a.  The  applicant  contends  that  he  was  not  counseled  that  he 
service commitment for initial qualification in the 
he  has  not  signed any documentation accepting the 

would incur any 
KC-10; and  that 
ADSC. 

Force  states  that  although  documentation of  that 
b.  The  Air 
not exist, applicant denies that it occurred, and a 
counseling does 
notification RIP  is no  longer available to permit 
copy of  the  PCS 
applicant's  signature  accepting  the  assignment, 
verification  of 
a  reasonable  presumption  that  competent 
they  believe 
counseling was provided and that applicant was in fact aware of the 
ADSC which would be incurred for training. 

it's 

c.  In the most  recent court decision involving  an ADSC  (U.S. 
District  Court,  Eastern  District  of  California), the  Court  noted 
that  although  the  governing  regulation, AFR  36-51,  requires  that 
ADSC  counseling  be  provided,  the  regulation also  stated  that  the 
fact advance ADSC  counseling did not  take place  or if the officer 
was  miscounseled  does  not  negate  an  ADSC. 
The  Court  then 
determined  that  given  this  proviso,  the  Air  Force's  apparent 
failure  to  provide  the  petitioner  with  ADSC  counseling  does  not 

2 

AFBCMR  97- 02268 

permit  the  invalidation of 
accepting C-141  training. 
the  regulation,  the  Cour 
unremarkable in placing an 
who accepts training while 
to provide counseling." 

the extended commitment 
In sustaining the  const 

t  commented  that  the 
ultimate duty of inquiry 
at the same time enjoinin 

he  incurred 
itutionality 
regulation 
on the offi 
g the Air Fo 

by 
of 
"is 
cer 
rce 

d.  In  interpreting  this-  court  decision,  AFPC/JA  has  stated 
that  the  decision must  be  followed only in  the  district where  it 
was  rendered.  Moreover, this court decision is not binding on us 
in any manner.  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: 

(1)  Pursuant  to AFR  36-51/AFI  36-2107,  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. 

(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 appeal. 

In deference to the opinion of the Staff Judge Advocate, AFPC, 
applicant does not appear to have a legal right to the relief b 
sought  notwithstanding  the  absence  of  proper  counseling 
responsible Air  Force Officials.  However,  since we  are empow 
to  recommend  relief based  on  our  perception  of  an  injustice, 
lack of a legal entitlement is not dispositive of the merits of 
applicant's  case. 

the 
eing 
by 
ered 
the 
the 

4.  Applicant's  contentions  are  duly  noted.  However,  we  do 
find  these  contentions,  in  and  by  themselves,  sufficien 
persuasive  to  conclude  that  the  applicant  was  unaware  of 
service commitment he would incur as a result of his completion 
initial qualification in the KC-10.  Therefore, we  agree with 
recommendation  of  the  Air  Force  and  adopt  its  rationale  as 
basis  for our conclusion that  the applicant has  failed to  sust 
his burden of establishing the existence of either an error or 
injustice warranting favorable action on his request. 

not 
.tly 
the 
of 
the 
the 
ain 
an 

THE BOARD DETERMINES THAT: 

The  applicant  be  no 
demonstrate the exist 
that the application 
that the application 
of  newly  discovered 
application. 

tified  that  the  evidence  presented  did 
ence of probable material  error or injust 
was denied without a personal appearance; 
will only be  reconsidered upon the submis 
relevant  evidence  not  considered  with 

not 
.ice; 
and 
ziion 
this 

3 

AFBCMR  97- 02268 

The  following members  of  the Board  considered this application in 
Executive  Session  on  26  June  1998,  under  the  provisions  of  AFI 
36- 2603 : 

Mr. LeRoy T. Baseman, Panel Chair 
Mr. Benedict A. Kausal IV, Member 
Mr.  David W.  Mulgrew, Member 

The following documentary evidence was considered: 

Exhibit A.  DD Form 149, dated 24  Jul 97. 
Exhibit B.  Applicant's Master Personnel Records. 
Exhibit C.  Letter, AFPC/DPPRS, dated 31 Mar 98, w/atchs. 
Exhibit D.  Letter, SAF/MIBR, dated 20  Apr 98. 
Exhibit E.  Letter, Applicant, dated 23 Apr 98. 

LEROY T. BASEMAN 
Panel Chair 

4 

AFBCMR  97- 02268