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

IN THE MATTER OF:      DOCKET NUMBER:  97-02571
            INDEX NUMBER:  113.04
            COUNSEL:  NONE

            HEARING DESIRED:  NO

___________________________________________________________________

APPLICANT REQUESTS THAT:

His date of entrance into the Uniformed Services University of  the
Health Sciences (USUHS) be changed to 14 September 1981.
___________________________________________________________________

APPLICANT CONTENDS THAT:

He was told in the 1983-1984 USUHS bulletin and in  a  briefing  by
the USUHS Registrar on 5 November 1982 that he would receive credit
for pay purposes for time spent in USUHS; and that he  entered  the
contract in reliance upon the representations that he would receive
pre-Defense Officer Personnel Management Act  (DOPMA)  constructive
service credit for pay and retirement.
___________________________________________________________________

STATEMENT OF FACTS:

Applicant’s  application  dated             ,  was  considered  and
denied by the Board in executive session on   .  The rationale  for
the Board’s decision may be found at pages 7, 8, and 9  of  Exhibit
AA.

In a letter of           , the applicant requests that his case  be
reopened based on the submission of  new  evidence.   Specifically,
the official USUHS’s opinion from Mr.     “M”, a memorandum for the
AFBCMR from    J. “S”, lt colonel, MSC,  USA  (Retired),  a  letter
from   J. “C”, dated   , referencing case  #87-02993,  his  initial
personnel data sheet accomplished  by  military  personnel  on  his
entry to the  Air  Force  in  1993  and  his  letter  to  New  York
representatives.

He states that  as  previously  presented  to  the  Board,  he  was
miscounseled when applying to USUHS.   Despite  his  evidence  that
included written miscounseling in the Student Bulletin,  the  Board
apparently  rejected  this  evidence  and  relied  solely  on   the
available evidence of Lt Colonel “S,”  this  despite  the  contrary
opinion of 156 classmates who  had  previously  signed  affidavits,
many of which were presented to previous Boards.   However,  in  Lt
Colonel “S’” own opinion (Atch 2), it is probable  that  inaccurate
or incomplete information was  presented  by  officials  concerning
entitlements.  The Board should note that he was only one  of  many
officials present on the day he was interviewed.  His  part  was  a
small part of a 10-hour day at the  school  which  included  visits
with numerous other  advisors  and  students.   After  leaving  the
interview as a civilian, he was dependent on the “written word”  as
provided in the Student Bulletin for the remainder of the 364 days.
 The Board also accepted his opinion that he alone was aware of the
rule changes despite the prior Board  rulings  that  US  Air  Force
Academy graduates, who were counseled by USUHS  advisors  from  the
medical school directly, had proven miscounseling.   Moreover,  the
letter now provided by Mr.    “M” (Atch 1) clearly states  that  an
internal review at USUHS  had  documented  that  miscounseling  was
rampant.

Also, he now includes evidence that he obtained to further document
that misinformation was widespread at the time of his matriculation
to the school (Atch 4).

Personnel officials of the Air  Force  were  even  unaware  of  the
changes that  DOPMA  had  affecting  longevity  at  the  school  as
evidenced by his TAFCSD date of 830705.  Also,  his  EAD  date  was
recorded as 830705.  This was changed in 1987 when it  was  finally
understood  what  the  effect  of  the  1981  DOPMA  law  meant  to
entitlements.

Also, he would refer the Board to the previous  decisions  allowing
credit for U.S. Air Force Academy graduates.  As he clearly  stated
previously, he was dependent on the information available to him at
the time.  The affidavit provided  in  the  other  cases  (Atch  3)
clearly states that even an Air Force Academy advisor  was  unaware
of the law change, despite having easier access to information than
a civilian would have.  Also, it is quite clear from prior evidence
that USUHS advisors were in direct communication with  the  Academy
advisors and even journeyed to the academies to counsel prospective
candidates.  As a civilian, he had no “middleman” and  was  relying
on the only information available, i.e., the Student Bulletin  when
deciding  on  his  career  path.  Surely,  this  is  miscounseling.
Applicant’s complete statement  is  included  as  Exhibit  BB  with
Attachments 1 through 5.
___________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/JA states, in part, that this is in response to your  three
separate letters of  , 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   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  to  rely
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.    “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-
case 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 DD).
___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states, in part, that the internal  review  conducted  at
USUHS is new evidence.  It is an opinion  compiled  after  internal
interviews and fact-finding.  Also, the  additional  new  evidence,
submitted in his request for further review clearly illustrates the
lack of information available in 1983 concerning the new law.   The
Judge Advocate does not address the original  pay  roll  record  as
proof of institutional errors being made  at  the  time.   The  new
evidence in addition to the written word in  the  Student  Bulletin
satisfies the Board’s requirement of miscounseling.

Colonel  “D”  states  that  the  contract  signed  was  “clear  and
accurate”.  This is in error.  The  contract  as  previously  shown
states that credit for longevity would not  be  received  while  at
school but does not refute the Student Bulletin which  states  that
longevity would  be  granted  at  graduation.   This  is  the  same
contract USAFA members signed.

Only one briefer (Colonel “S”)  states  he  believes  he  may  have
counseled correctly  but  admits  he  cannot  be  sure  what  other
briefers stated.  These were briefers that were  both  acknowledged
to be present at USAF Academy briefings and at USUHS.  In addition,
USUHS tours were given by second year medical students who  at  the
time believed they would receive  longevity  pay  and  knew  of  no
adjustment to the longevity issue.   The  Judge  Advocate’s  office
ignored the prevailing evidence that misinformation was rampant  as
determined  by  other  boards.   The  only  written  document  that
addresses longevity is the Student  Bulletin.   It  is  incredulous
that no one has acknowledged the “power” of the Student Bulletin as
the  sole  source  of  reference  to  a  civilian  applicant.   The
Dictionary states “miscounseling can be in either oral  or  written
form.”  In a court of law the written word has more weight and  yet
prior boards and the Judge Advocate ignore this fact! (Exhibit F)
___________________________________________________________________

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   injustice
warranting a change in our prior decision.  Applicant contends that
he was told in the 1983-1984 USUHS bulletin and in  a  briefing  by
the USUHS Registrar on 5 November 1982 that he would receive credit
for pay purposes for time spent in USUHS; and that he  entered  the
contract in reliance upon the representations that he would receive
pre-Defense Officer Personnel Management Act (DOPMA )  constructive
service   credit   for   pay   and   retirement.    In   requesting
reconsideration,  applicant  further  contends  that  despite   his
evidence  that  included  written  miscounseling  in  the   Student
Bulletin, the Board apparently rejected this  evidence  and  relied
solely on the available  evidence  of  the  USUHS  Registrar,  this
despite the contrary opinion of 156 classmates who  had  previously
signed affidavits, many of which were presented to previous boards.
 However, in the Registrar’s  own  opinion,  it  is  probable  that
inaccurate or incomplete information  was  presented  by  officials
concerning entitlements.  The Board should note that the  Registrar
was  only  one  of  many  officials  present  on  the  day  he  was
interviewed.  His part was a small part of a  10-hour  day  at  the
school which included  visits  with  numerous  other  advisors  and
students.  After leaving  the  interview  as  a  civilian,  he  was
dependent on the “written word” as provided in the Student Bulletin
for the remainder of the 364  days.   As  a  civilian,  he  had  no
“middleman” and was relying  on  the  only  information  available,
i.e., the Student Bulletin when deciding on his  career  path.   In
support of his contentions, applicant submits copies  of  a  recent
opinion from the USUHS General Counsel who  believes,  among  other
things, that  the  information  contained  in  the  USUHS  Bulletin
incorrectly led interviewees to conclude that they would  get  pre-
DOPMA benefits; a memorandum from the  USUHS  Registrar  indicating
that it is 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; a letter from  one  of  the  chairmen  of  the  Health
Professions Advisory Committee at the USAFA  indicating  that  they
briefed the cadets incorrectly through the  1985  Spring  Semester;
his Statement of  Service,  AF  Form  1613,  showing  that  he  was
initially given the four years of constructive service credit until
the  error  was  discovered;  and  a  letter  to  his   congressman
requesting assistance in obtaining the relief sought.

4.  We  have  carefully  considered  the  additional  documentation
submitted.  However, we  do  not  find  this  documentation  either
singularly or collectively 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 decision.
___________________________________________________________________

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.  Record of Proceedings, dated 29 Jun 98.
    Exhibit BB.  Memorandum from Applicant, dated 24 Feb 99,
                 w/atchs.
    Exhibit CC.  AFBCMR Memo, dated 6 May 99.
    Exhibit DD.  HQ AFPC/JA Memorandum for AFBCMR, dtd 24 Jun 99.
    Exhibit EE.  SAF/MIBR Letter, dated 19 Jun 99.
    Exhibit FF.  Memorandum from Applicant, dated 6 Aug 99.




                                   CHARLES E. BENNETT
                                   Panel Chair