RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  97-03791

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

He be released from his 24-month active duty service commitment (ADSC)
he incurred when he was disenrolled from the United States  Air  Force
Academy (USAFA).

_________________________________________________________________

APPLICANT CONTENDS THAT:

Enforcing his ADSC at this time would be an injustice to him  and  his
family.  He was willing to enter active duty at the time  he  expected
(between June and August 1996).  Because the Air Force did not  recall
him to active duty, however, he assumed that the  Air  Force  did  not
need his services.  Consequently, he got married, adopted a child, had
another child, and began his civilian career  as  an  accountant.   He
believes that to force him to enter active duty as an E-3  because  of
an Air Force “oversight” would require him to unexpectantly  interrupt
his civilian employment and cause him financial ruin.

In support of his appeal, the applicant provided a personal  statement
and copies of a special order and an Air Force instruction.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant was honorably separated voluntarily from his appointment  as
a cadet, effective 15 Dec 94, and transferred to the Obligated Reserve
Section, Air Reserve Personnel Center (ARPC), in the grade  of  airman
first class with an effective date and date of rank effective  16  Dec
94.  Information  extracted  from  the  Personnel  Data  System  (PDS)
indicates that the applicant is currently assigned to Inactive  Status
List Reserve Section (ISLRS) of the Air Force Reserve.

The relevant facts pertaining to this application are contained in the
letters  prepared  by  the  appropriate  offices  of  the  Air  Force.
Accordingly, there is no need to recite these facts in this Record  of
Proceedings.

_________________________________________________________________

AIR FORCE EVALUATION:

The Skills Management Branch, AFPC/DPPAES, reviewed  this  application
and noted that the applicant was appointed to the USAFA in  June  1991
and disenrolled in his second class  academic  year,  on  15  December
1994. As a result of his disenrollment, he incurred  a  24-month  ADSC
(active duty is the primary means of reimbursement for education).  He
was granted an educational  delay  until  May  1996  to  complete  his
degree.  The process to get him classified  and  on  active  duty  was
started in March 1996.  In August 1996, the applicant  was  classified
and given an assignment.  DPPPAES indicated that, at this  point,  the
applicant should have been issued extended active duty  (EAD)  orders.
However, due to an  administrative  oversight,  the  orders  were  not
issued nor did they get in contact with the applicant until  September
1997.  He then requested release from his ADSC which the Secretary  of
the Air Force disapproved on  23  October  1997.  The  possibility  of
serving in the Reserves instead  of  entering  active  duty  was  also
considered in the decision.

DPPAES noted the applicant's contention that he  was  ready  to  enter
active duty in August 1996 and to bring him on active duty  now  would
be an injustice to him.  They also noted his claims that at this point
he has a family to move and to bring him on active duty  would  put  a
financial burden on him.  DPPAES indicated that the fact still remains
the applicant knew he would an incur an ADSC if he did not fulfill his
contractual obligation to the  Academy,  and  is  not  without  fault.
However, based on their error in not completing the EAD processing  in
a timely manner, they  recommend  the  Board  provide  relief  to  the
applicant.  DPPAES recommends the applicant reimburse  the  Air  Force
for the cost of the Academy education instead of entering active duty.
 The amount he should reimburse the Air Force is $94,300

A complete copy of the DPPAES evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response, the applicant indicated that he strongly resents  the
statement in the advisory opinion that he knew he would incur an  ADSC
if he did not fulfill his obligation.  He never  signed  or  took  any
oath stating any commitment.  This occurred after the  fact  while  he
was outprocessing from the Academy.  Furthermore, he does not consider
reimbursing $94,300 relief.  Also, the number was much lower  when  he
left the Academy.

Applicant  indicated  that  he  is  really  upset  about  this  entire
situation and it should not continue.  He objects to having  a  finger
pointed at him when he  fulfilled  his  end  of  the  contract.   True
justice in this matter  will  place  the  blame  where  it  should  be
placed—the “administrative oversight” that caused him not to be called
to duty.

Applicant’s complete response is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, the Staff  Judge  Advocate,  AFPC/JA,
reviewed this application and indicated that they  did  not  find  the
circumstances of the applicant's delayed  call  to  fulfill  his  ADSC
constituted an error or injustice.  However, the circumstances of  the
applicant's case have been exacerbated  by  administrative  oversight,
the previous "no pursuit" policy  regarding  recalcitrant  USAFA  ADSC
holders, and the consequent BCMR delay.  Accordingly, JA believes  the
Board may appropriately resolve the matter in  one  of  the  following
manners:

      a.  Deny the applicant's request for correction with no  finding
of error or injustice and direct performance.

      b.  Find that the Air Force's administrative  oversight  created
an "injustice" when it failed to call the applicant to active duty and
accordingly direct the correction of the applicant's record to reflect
that he was  called  to  active  duty  on  or  about  30 August  1996.
Therefore based on the date when he was actually notified by  the  Air
Force to serve his commitment in September  1997,  he  would  have  11
months of the total ADSC remaining to be performed or recouped.

      c.  Find that the combination of  administrative  oversight  and
inaction by  the  Air  Force  since  August  1996  creates  a  current
condition of injustice to call the applicant back to active  duty  now
and direct the correction of his record to reflect that  when  he  was
discharged from cadet status in 1994, he retained no ADSC.

JA also recommended that if the Board elects any  form  of  relief  to
correct the applicant’s records that such correction  also  include  a
discharge code that would not permit the reenlistment or commissioning
of the applicant at a future date.

A complete copy of the JA evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant indicated that he should not pay for such an  extreme  error
on the part of the Air Force.  He worked hard to get to  where  he  is
today and it has been a struggle resulting from that fateful summer of
1994.  Once his orders expired with no word from the Air Force, he did
move on.  Now the Air Force is looking to take all  this  away  for  a
mistake that they made.  He will not share any of the blame, as it has
been suggested he should.  He fulfilled his obligation per the  orders
given to him.  These are meant to be black and  white  for  a  reason.
This entire process has been as a result of the Secretary’s mandate to
bring individuals from the Academy onto active duty and, subsequently,
the administrative oversight of not calling  him  to  active  duty  as
directed by the orders given to him.

Applicant’s complete response is at Exhibit H.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of probable injustice.  We note that  the  applicant  should
have been called to active duty in August 1996 to  complete  his  two-
year commitment but was not  notified  until  September  1997.   After
reviewing  the  available  evidence,  we  are  of  the  opinion  that,
notwithstanding the administrative oversight in not  ordering  him  to
active duty in a timely manner, the applicant should  not  be  totally
absolved from any responsibility in this  matter.   In  this  respect,
despite his assertions to the contrary, statements in his  resignation
reveal the applicant was aware that he would  either  be  required  to
repay the government for the cost of his education or  incur  an  ADSC
when he voluntarily tendered his resignation.   At  the  time  of  his
resignation, he had received three years of  post-secondary  education
at government expense.  We are not persuaded that the  applicant  made
sufficient  effort  to  contact  appropriate   Air   Force   officials
concerning his  ADSC  obligation  or  to  inquire  about  his  status.
Furthermore, we know of no provision of  statute  or  regulation  that
automatically waives the applicant’s ADSC because  he  did  not  enter
active duty by  a  specified  date.   Nevertheless,  the  Air  Force’s
administrative oversight did result in  an  inordinate  delay  in  his
being  ordered  to  active  duty.   And,  we  accept  the  applicant’s
assertion that it would be an injustice for him to now, at  this  late
date, be required to enter active duty because he is entrenched in his
civilian job and this would result in a major disruption  of  his  and
his family’s lives.  In view of the all the circumstances presented in
this case, we believe it would be proper and fitting  to  reverse  the
determination that the applicant should serve on active duty  for  two
years.  However, we do not believe the evidence  supports  a  decision
that the applicant should be treated differently than other cadets who
are disenrolled after their third year at the Academy and who  do  not
perform the requisite active duty service in enlisted status.  Rather,
we believe the appropriate course of action in this case would  be  to
allow the applicant to reimburse the United States for the cost of his
Air Force Academy education instead of requiring that he  perform  two
years of active duty service, and we do so recommend.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to  APPLICANT,  be  corrected  to  show  that  the  Secretary
determined that  he  not  be  ordered  to  active  duty,  but  instead
reimburse the United Stated Government for the cost of  his  education
in accordance with Section 2005 of Title 10, United States Code.  This
approval does not excuse any other indebtedness to the  United  States
Government.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 13 Jul 99, under the provisions of AFI 36-2603:

      Ms. Cathlynn Sparks, Panel Chair
      Dr. Gerald B. Kauvar, Member
      Mr. George Franklin, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 8 Dec 97, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPAES, dated 30 Jan 98.
     Exhibit D.  Letter, SAF/MIBR, dated 16 Feb 98.
     Exhibit E.  Letter, applicant, dated 13 Mar 98.
     Exhibit F.  Letter, AFPC/JA, dated 6 May 99.
     Exhibit G.  Letter, SAF/MIBR, dated 24 May 99.
     Exhibit H.  Letter, applicant, dated 15 Jun 99.



                                   CATHLYNN SPARKS
                                   Panel Chair








AFBCMR 97-03791




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to , be corrected to show that the Secretary determined
that he not be ordered to active duty, but instead reimburse the
United Stated Government for the cost of his education in accordance
with Section 2005 of Title 10, United States Code.  This approval does
not excuse any other indebtedness to the United States Government.





    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency