THIRD ADDENDUM TO
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  86-04014
            INDEX NUMBER:  113.04
            COUNSEL:  NONE

            HEARING DESIRED:  NO

___________________________________________________________________

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.

In an amendment to this application, applicant requests that if  he
is awarded constructive service credit for attending the USUHS,  he
be awarded early retirement (with no reserve commitment) in lieu of
a monetary settlement.

___________________________________________________________________

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.

Applicant states, in part, that this new evidence is in the form of
a letter written by the General  Counsel  from  the  USUHS  to  the
Office  of  the  Secretary  of  Defense.   This  letter  is   dated
September 29, 1998; after the AFBCMR’s most recent decision on  the
reconsideration  of   his   case   (dated   September   3,   1998).
Unfortunately, this letter was only recently made available to him;
however, its  importance  and  relevance  to  his  case  cannot  be
overlooked.

As he understands it, his recent appeal was denied for two reasons.
 The first was  that  there  were  some  inconsistencies  with  his
attempt to tie this issue into  a  request  for  early  separation.
Clearly, this was inappropriate, and he can understand why this may
have biased his appeal.  At the risk of further  jeopardizing  this
request for reconsideration, he apologizes for attempting to  apply
another case that did not exactly fit his case into  that  request.
The second, and perhaps main reason that his previous requests were
denied   is   related   to   the   statement   from    the    USUHS
Registrar/Director of Admissions who “....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...”  The current letter from the  General  Counsel
challenges that position.

The General Counsel letter acknowledges for  the  first  time  that
USUHS “...admissions interview information  with  regard  to  DOPMA
credits [was} not correct.”  The  letter  goes  on  to  state  that
“...the  University   {USUHS}   acknowledges   responsibility   for
unintentional miscounseling...”

One must consider the position of the USUHS  Registrar/Director  of
Admissions when attempting to resolve this  apparent  inconsistency
in  the  USUHS  position.   It  is  clear  that  he  was   assigned
responsibility, at some level, to brief the interviewees on the new
DOPMA changes.  However, even  he  did  not  fully  appreciate  the
ramifications of the  DOPMA  legislation.   Although  he  may  have
mentioned the issue in some interviews, the issue was  not  on  his
briefing outline (as it was the following year) {Attachments 5 &  6
to his 14 March 1998 letter}, and he may  have  forgotten  to  even
mention it during some interviews.  His position may also have been
motivated, at least in some fashion, by his desire to remain as the
Registrar/Director of  Admissions  and  not  suffer  the  potential
consequences of admitting that  he  failed  to  adequately  counsel
future USUHS students.  For whatever  reason,  this  recent  letter
from the General Counsel clearly  indicates  that  USUHS,  however,
unintentionally, did not correctly counsel  members  of  the  USUHS
class of 1987 regarding DOPMA benefits.

In light of this recent evidence, please allow him to summarize his
position.  He was counseled at the Air Force Academy that he  would
receive full constructive service credit  for  his  time  at  USUHS
(Attachment 1 from  his  14  March  1998  letter).   He  was  never
counseled that there was a change  to  this  policy  (Attachment  2
through 14 from his 14 March 1998 letter, and the  current  General
Counsel letter).  Additionally, he signed the  Air  Force  contract
without adequate counseling and with a short suspense (Attachment 2
from his 14 March 1998 letter).  Further, this  same  contract  has
not precluded other AFBCMR applicants from being awarded credit.

This new evidence is the missing piece to the  puzzle.   This  puts
his case on exactly the same level as other cases  the  AFBCMR  has
awarded constructive service credit for.  If his case is  carefully
reviewed in an unbiased fashion, and compared to other  cases  that
have been awarded credit, he feels that the Board  cannot  fail  to
come to the conclusion  that  he  deserves  the  same  constructive
service credit as his classmates.  He has not addressed  the  issue
of equity, because the Board has felt in the past that  this  is  a
matter for Congress.  However, he agrees with the General  Counsel,
at least for this case, that  “..In  the  view  of  the  University
{USUHS}, therefore, any satisfactory resolution properly rests with
the  BCMRs.”   Applicant’s  complete  statement   and   documentary
evidence submitted in support of his  request  for  reconsideration
are included as Exhibit AA with Attachments 1 and 2.

___________________________________________________________________

STATEMENT OF FACTS:

Applicant, a lieutenant  colonel,  graduated  from  the  Air  Force
Academy on 30 May  1979,  was  commissioned  a  second  lieutenant,
Regular Air Force, and entered the line of the Air Force  the  same
date.  He has since resigned his  Regular  commission,  accepted  a
Reserve commission and is transferring to the  Air  National  Guard
under PALACE CHASE.  He is scheduled for early retirement effective
30 September 1999.

Applicant 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  his  entry  into  USUHS,  he  signed  a   STATEMENT   OF
UNDERSTANDING FOR AIR  FORCE  APPLICANTS  on  24  May  1983,  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, 1984 (Exhibit BB 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.

Headquarters Air  Force  Personnel  Center  (HQ  AFPC)  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 CC 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  (HPSP)
which was recently approved by the Board.

On April 25, 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
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 DD).

On May 4, 1993, the Board reconsidered and denied  the  applicant’s
request for 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  miscounselling  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
included or that a change in this aspect was  implied.   The  Board
believed,  however,  that  other  than  the  fact  that  the  USUHS
President/Dean believes the students, this statement  added  little
to the case.  Consequently, the Board did not find  this  statement
sufficient   to   impeach   the   credibility    of    the    USUHS
Registrar/Director of Admissions who unequivocally stated that  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 miscounselling 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 15 September 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  miscounselling
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 EE).

In  a  letter,  dated  14  March  1998,  the  applicant   requested
reconsideration  of  his   earlier   application   for   award   of
constructive credit for time spent at USUHS.  On this occasion,  he
asked that his records  be  corrected  to  show  that  he  did  not
complete medical school under USUHS, but that he  attended  medical
school at his own expense in an education be delay.  He also  asked
that the ADSC associated with graduating from USUHS be voided.

___________________________________________________________________

Applicant’s request for reconsideration was considered  and  denied
in executive session on June 3 1998.  The rationale for the Board’s
decision is on pages 6, 7, and 8 of Exhibit FF.

___________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/JA states, in part, that this is in response to your  three
separate letters of 6 May 1999, requesting our review  and  comment
on  two  cases  for  further  evaluation,  and  one   request   for
reconsideration,   in    view    of    additional    documentation.
Specifically, these three cases are addressed in a  letter  written
by the USUHS General Counsel dated 19 September 1998 to the  Office
of the Secretary of Defense.  This  correspondence  serves  as  the
common denominator among the cases; and, hence, they are  addressed
en masse in the following advisory opinion.   They  recommend  that
relief be denied in all three instances.

These  applicants,  in  numerous  applications,  sought   pre-DOPMA
constructive service credit for post-DOPMA medical school education
at the USUHS.  All graduates of  the  USUHS  Class  of  1987,  they
continue to want their four years spent in medical school at  USUHS
to count for pay purposes, both upon graduation and at the time  of
retirement, contrary to DOPMA’s mandate.  Though the retirement pay
issue has  been  decided  –  current  law  does  not  prohibit  the
crediting of time spent at USUHS towards retired  pay  –  longevity
pay  credit  is  not  allowed  for  time  in  medical  school   and
applicants’ previous requests have been denied.  Of the three cases
here, one applicant now specifically requests  reconsideration  and
the other two are anticipated to request reconsideration  of  their
previous applications, in light of congressional correspondence  to
that effect.

Since DOPMA went into effect on 15 September 1981, there  has  been
no constructive pay credit for medical education, including  USUHS.
A statutory exception is found in the  grandfather  provision  that
reserved the pre-DOPMA constructive pay credit for medical officers
on active duty and for students enrolled  in  a  medical  education
program (including USUHS)  leading  to  appointment  as  a  medical
officer as long as they occupied such a  position  the  day  before
DOPMA took effect, i.e., 14 September 1981 (P.L. 96-513,  94  Stat.
2951, and note to 10 U.S.C. Section 611).

This change was immediately  incorporated  in  the  contract  USUHS
members signed upon entering the program, starting with  the  Class
of 1985.  However, members of this class, as well as the Classes of
1986 and 1987, received  documented  miscounseling  concerning  the
DOPMA  changes.   Specifically,  the  USUHS  Bulletin,   given   to
applicants during the interview process, still explained  that  the
four years at USUHS were to count when computing years  of  service
creditable for basic pay.  This inaccuracy was finally  changed  in
the Bulletin for the applicants of the Class of 1988.

Notwithstanding the clear and accurate contract applicants  signed,
the Bulletin’s misinformation, coupled with specific  instances  of
miscounseling by various USUHS and United States Air Force  Academy
(USAFA) officials, led this  Board  to  grant  constructive  credit
relief en bloc to the Classes of 1985 and 1986 –  but  not  to  the
Class of 1987.  In contrast to the preceding classes, the Class  of
1987  applicants  received  briefings  by  school  officials  which
specifically countered the misinformation in the Bulletin.   Hence,
absent further specific instances of miscounseling (which has  been
identified in several  cases  from  USUHS  87  graduates  who  also
matriculated from USAFA), the clear contract members of  the  Class
of  1987  signed  sufficiently  informed  these  members  of  their
constructive credit  pay.   Hence,  they  were  not  reasonable  in
relying upon the inaccurate Bulletin and the Board  has  repeatedly
denied relief to that effect.

We have repeatedly advised against  granting  constructive  service
credit for those medical officers who do not meet the  requirements
of DOPMA – that is, those not “grandfathered  in,”  which  includes
the Class of 1985  on.   Notwithstanding,  the  Board  has  granted
relief to certain medical officers who entered  either  the  Health
Professions Scholarship Program  (HPSP)  and  USUHS  subsequent  to
DOPMA, although all applicants in  these  cases  had  entered  into
contracts with clauses specifically providing that they  would  not
receive constructive credit for pay for the time spent  in  medical
school.  In particular, in 1985, the Board granted across-the-board
relief to the USUHS Classes of 1985 and 1986, primarily because  of
widespread misinformation repeatedly given to the  USAFA  graduates
in such classes while they  were  cadets.   The  BCMR  believed  it
needed to maintain parity with such USUHS  classes,  so  by  giving
credit to former cadets from the Academy, it  gave  credit  to  the
others also.  Additionally, in 1990, the Board extended this relief
to all 1985 and 1986 HPSP graduates as well.  However, in extending
this relief to the HPSP 1985 and 1986 classes en  bloc,  the  Board
added:

      In  the  absence  of  clear-cut   or   presumptive   evidence   of
      miscounseling  and  a  belief  that  it  was  reasonable  for   an
      individual to have relied on  such  information  years  after  the
      effective date of the change in law,  we  can  see  no  compelling
      reason to recommend relief in the future.

This emphasis on a case-by-case determination of reliance on  clear
miscounseling has since guided the  Board’s  subsequent  decisions,
including the original application for relief by 22 members of  the
USUHS Class of 1987.  These  22  applicants,  including  the  three
members considered here, originally argued that they were similarly
situated to the  members  of  the  Class  of  1986,  and  therefore
required relief.   However,  as  this  Board  determined,  although
instances of miscounseling did occur, these applicants did not have
a basis to reasonably rely upon  such  information,  and  therefore
relief was not granted.  The Board found that  although  the  Class
Bulletin dated 1983-1984  contained  inaccurate  information,  this
miscounseling was countered by information provided by officials at
USUHS  and  that  applicants  have  a  personal  responsibility  to
determine the benefits they would accrue.

This Board, in 1990, denied these members’ original applications as
participants in a “class action” case involving 22 members  of  the
USUHS Class of 1987.  It has subsequently denied  their  individual
requests for reconsideration, based on the same grounds employed in
the original denial.  The only factors to have  changed  since  the
original 1990 case include: (a) the fact  that  several  additional
members of their class have subsequently been granted  constructive
credit; and (2) the letter written by the general counsel at USUHS.
 In our opinion, neither of these events constitute evidence of  an
error or injustice requiring relief.  The only basis for  which  an
application can be  reconsidered  is  if  and  when  the  applicant
submits “newly discovered relevant evidence that was not  available
when the application  was  previously  considered.”   AFI  36-2603,
para. 6.  In these cases, nothing has  been  submitted  that  meets
this criteria.

AFPC/JA further states that concerning the first  changed  factors,
as stated above, the Board has granted several USUHS Class of  1987
members  constructive  credit  based  on  miscounseling/presumptive
evidence of miscounseling and/or parity within  their  peer  group.
However, these cases all involved USAFA  graduates,  and  therefore
are not similarly situated to current applicants,  having  received
different  counseling  and   information.    Notwithstanding   this
difference, the author of the congressional letter written  to  the
Board, as well as Major “F’s” request for reconsideration, wants to
apply the same rationale used by the  Board  in  granting  en  bloc
relief to the Class of 1986 – that  is,  the  question  of  equity.
Some Academy graduates who were  Class  of  1986  members  received
constructive credit via  Board  action,  and  therefore,  to  avoid
disparity, relief was granted to the entire  class.   However,  the
Class of 1987 faced different circumstances than the Class of  1986
which directs against  granting  similar  relief  based  purely  on
equity considerations.

This Board has acknowledged that the  Class  of  1987  did  receive
inaccurate  information  concerning  credit  for  basic  pay  while
enrolled in USUHS.   Specifically,  the  1983-1984  USUHS  Bulletin
failed to include the revisions  of  DOPMA.   However,  the  school
administration identified this  inaccuracy  and,  at  the  time  of
interviews for the Class of 1987, included the accurate information
in its briefings during the application process.  The  Director  of
Admissions explained the  DOPMA  changes  in  these  sessions,  and
absent specific evidence to the contrary, such as in the few  Class
of 1987 cases the Board has granted relief.  This  explanation,  in
conjunction with the written contract, was  sufficient  to  clarify
the constructive credit issue.

As the Board  notes  in  its  September  1998  (86-04014)  findings
concerning Lt Colonel “M”, its “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.”  However, they proceed  to  point
out, as they have consistently in the multitude of cases  involving
this issue, that all applications for constructive credit  must  be
treated on a case-by-case basis.  The granting of one such  request
does not mandate a mass exemption from DOPMA for the USUHS Class of
1987.   To  wit,  “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.”

The  second  factor  prompting  both   this   reconsideration   for
constructive credit (Major “F”)  and  congressional  correspondence
consists of a 29 September 1998 letter  from  a  Mr.  Charles  “M”,
General Counsel at  USUHS,  to  the  Office  of  the  Secretary  of
Defense.  In it, he basically outlines the equity  argument  above;
that is, since the BCMR has granted relief to several Class of 1987
USUHS Academy graduates, it should provide relief en  bloc  to  the
entire class in order  to  avoid  the  appearance  of  preferential
treatment.  Mr. “M” also revisits the same miscounseling issue that
the Board has addressed in all the previous  applications  for  the
members of the USUHS Class of 1987.  However, he  provides  no  new
evidence of miscounseling; rather, he simply  reiterates  the  same
information the USUHS Dean listed in  previous  cases  –  that  the
briefings conducted by the Director of Admissions for the Class  of
1987, while accurate, may not have been received  by  all  members.
The Board has acknowledged that fact and considered it on a case-by-
cases basis, and this new letter provides  nothing  to  justify  en
block relief for the Class of 1987.



As applicants have failed to prove the existence  of  an  error  or
injustice, we recommend that relief be denied (Exhibit HH).

___________________________________________________________________

APPLICANT’S RESPONSE TO AIR STAFF EVALUATION:

Applicant states,  in  part,  that  he  was  disappointed  but  not
surprised with the response  from  HQ  AFPC/JA.   This  agency  has
consistently recommended  denial  of  most,  if  not  every,  DOPMA
constructive service credit case that  they  have  reviewed.   This
includes several cases in which the  AFBCMR  did  not  accept  this
office’s  recommendations,  but  instead  awarded  the  individuals
credit based upon the merits of their individual cases.  He  humbly
appeals to the Board to do the same in this case.  He has served on
various boards during his military career, and is keenly  aware  of
the burden that this places on already busy senior  personnel.   It
is difficult to resist the propensity to simply endorse the opinion
of the advisory opinion and/or the permanent representative of  the
Board and be done  with  this  additional  duty.   Once  again,  he
respectfully requests that  you  carefully  review  this  case  and
render a fair and impartial opinion.

The biggest issue that he has with the advisory opinion is found in
“Discussion” section.  They propose:  “The  only  factors  to  have
changes since the original 1990 case include:  (1)  the  fact  that
several additional members of their class  have  subsequently  been
granted constructive credit; and (2)  the  letter  written  by  the
general counsel at USUHS.”   This  is  simply  not  true!   In  his
24 March 1998 letter to the AFBCMR (never formally reviewed  by  HQ
AFPC/JA but included in the  current  package),  he  presented  two
pieces of new evidence: (1) A letter from Lt Colonel (Dr)  “W”  who
points out that only three Air Force Academy  graduates  (including
himself) have not been awarded credit to date; and (2) A  notarized
statement from Major Edward “N”, his supervisor  and  counselor  at
Los Angeles Air Force Station  in  1982/1983,  who  notes  that  he
“...had  no  idea  that  {I}  was  at  the   [Uniformed   Services]
University.”  The letter from the USUHS general counsel  is  simply
one more piece of evidence that is only appreciated when considered
in context.

Allow him to review the preponderance of evidence that supports his
assertion that he relied on clear miscounseling in the 1982/83 time
frame and expected constructive service credit for pay purposes for
the time spent at USUHS (In fact, he never even heard of  DOPMA  or
any other plan that would affect these benefits until 1986):

       (1)  School  Bulletins:  The  1983/1984  Bulletin  made   no
mention of the DOPMA issue.  The 1984/85  Bulletin  clearly  spells
out the new policy.

       (2)  Interview  Outlines:  The   1983   Interview   Outlines
specifically exclude any reference to DOPMA or constructive service
credit.  The 1984 Interview  Outline  clearly  elucidates  the  new
policy.

      (3)  Affidavits:  Sworn affidavits from himself and two other
classmates who attended the same  interview  that  he  did  clearly
recount the DOPMA issue was either not mentioned or simply  glossed
over as something that would change by the they  matriculated  into
USUHS.

      (4)  Acceptance Letters:  Again, no mention of  DOPMA-related
issues in letters to his class, but clear delineation of new policy
to the subsequent classes.

      (5)  USUHS Position:  Two letters by the former  Dean  and  a
letter  from  the  USUHS  general  counsel  clearly  indicate  that
miscounseling  occurred.   The  general  counsel  letter   actually
acknowledges responsibility for unintentional miscounseling!

      (6)  Dr. “Ws’” Letter:  Documents miscounseling that occurred
at the Air Force Academy.  Goes on to note that failing to give him
constructive credit would be “an egregious injustice.”  In attached
table, he points out, by name, remaining Academy graduates who have
not been awarded credit.  Note that at least one graduate (J-- V--)
[and perhaps others] did not matriculate into USUHS  directly  from
the Air Force Academy.  Therefore, this individual would have  been
“re-counseled,” and yet he was awarded credit at some point!

      (7)  Major “N’s” Letter:  Described the significant  role  he
took  as  his  supervisor  and  counselor  regarding  benefits   of
attending USUHS.  Clearly recounts the  events  of  this  time  and
notes ”...there was absolutely  no  indication  that  the  [Uniform
Services] University or the Air Force had  recently  changed  their
policy.”

As Board members, it is your responsibility to  weigh  these  seven
strong pieces of evidence against one statement by the former USUHS
Registrar/Director of Admissions whose job was on the  line.   This
same  individual  made  significant  efforts  the  following   year
(changed the Bulletin, changed the briefing outline, sent  out  two
letters to the entering class, etc.) to make sure that he  did  not
make the same error again!  In order to  deny  his  appeal,  it  is
necessary to compare his case to other successful applications.  If
he has proven his case to the same degree as  even  one  successful
appeal, they he should be awarded  similar  credit.   The  advisory
opinion notes that the Board has considered this issue on a case-by-
case basis.  In order to  do  so,  this  process  must  apply  some
standard in order  to  be  fair  and  equitable.   He  respectfully
submits that he has not only met, but has exceeded this standard in
proving  his  case,  and  requests  your  careful  and  independent
affirmation of this.  He sincerely appreciates your careful  review
of this case (Exhibit JJ).

___________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing
law or regulations.

2.  The application was not timely filed; however,  it  is  in  the
interest of justice to excuse the failure to timely file.

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.   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.
In support of his contention, he submits new evidence in  the  form
of a letter written by the General Counsel from the  USUHS  to  the
Office of the  Secretary  of  Defense  and  argues  that  this  new
evidence is the missing piece to the puzzle.  He also believes that
this letter puts his case on exactly the same level as other  cases
the  AFBCMR  has  awarded  constructive  service  credit  for.   We
disagree.  The USUHS General Counsel acknowledges responsibility on
the part of the University  for  unintentional  miscounseling,  but
believes  that  the  BCMRs  have  created  the  present   inequity.
Therefore, he believes any satisfactory resolution  properly  rests
with the BCMRs.  We do not  necessarily  disagree  that  in  acting
favorably on the cases  of  several  cases  of  Air  Force  Academy
graduates who also graduated from USUHS in 1987, we may have  given
rise to the argument of institutional equity.  Nonetheless, we have
a statutory mandate to correct established errors or injustices  in
individual cases without regard to the impact  these  actions  will
have on other 1987 USUHS graduates  who  presumably  were  properly
counseled.  As we previously  stated,  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 training would no  longer
be entitled to constructive service for computation of  basic  pay.
Thus, we 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
cases denied by the Army BCMR.  Consideration could also  be  given
the 340 1987 Air Force AFHPSP  graduates  and  the  1988  and  1989
graduates of AFHPSP/USUHS who were  either  properly  counseled  or
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 as a result of corrections to their records.

4.  Granted,  the  letter  from  the  USUHS  General  Counsel  does
constitute new  relevant  evidence.   However,  since  he  was  not
responsible  for  counseling  the  USUHS  students  and   did   not
personally observe  the  briefings,  we  do  not  find  his  letter
sufficiently persuasive to override the statements from  the  USUHS
Registrar/Director   of   Admissions.     This    individual    has
unequivocally stated  on  more  than  one  occasion  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.  Absent substantial evidence to the contrary, we continue to
believe that the USUHS Registrar/Director of  Admissions  briefings
were not misleading and, more importantly,  by  his  briefings,  he
corrected the  erroneous  information  in  the  Bulletin  regarding
constructive service credit.  In view of the foregoing and  in  the
absence of corroborative evidence from the USUHS official  who  was
responsible for briefing the applicant of his entitlements prior to
his entry into USUHS, we find no compelling reason to  recommend  a
change in our earlier decisions.

___________________________________________________________________

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 24 August 1999 under the provisions of AFI 36-
2603:

      Mr. Charles E. Bennett, Panel Chair
      Mr. Benedict A. Kausal IV, Member
      Mr. Henry Romo Jr., Member

The following documentary evidence was considered:

    Exhibit AA.  Letter from Applicant, dated 23 Feb 1999, w/atchs.
    Exhibit BB.  Copy of Record of Proceedings, dated 1 May 1987.
    Exhibit CC.  Copy of Record of Proceedings, dated 15 Jul 1988.
    Exhibit DD.  Addendum to Record of Proceedings, undated.
    Exhibit EE.  Addendum to Record of Proceedings, dated 29 Jul
                 1993.
    Exhibit FF.  Second Addendum to Record of Proceedings, dated
                 3 Sep 1998.
    Exhibit GG.  AFBCMR Memorandum for HQ AFPC/JA, dated 6 May
                 1999.
    Exhibit HH.  HQ AFPC/JA Memorandum for AFBCMR, dated 24 Jun
                 1999.
    Exhibit II.  SAF/MIBR Letter to Applicant, dated 30 Jun 1999.
    Exhibit JJ.  Letter from Applicant, dated 7 Jul 1999.





                                   CHARLES E. BENNETT
                                   Panel Chair