RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-00785
            INDEX CODE:  128.00

      APPLICANT  COUNSEL:  MEL DAHL

      XXX XX XXXX      HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His recoupment of funds expended on his medical school education be waived.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was involuntarily discharged  from  the  Air  Force  Reserves  for  being
honest about his sexual orientation.  After consultation  with  medical  and
legal advisors,  he  determined  that  he  could  not  promise  to  keep  an
important and integral part of his life a secret.   Because  of  his  honest
and forthright statements, he was discharged.  He did  not  inform  the  Air
Force of his sexual orientation for the purpose  of  voluntarily  separating
from the Air Force, but rather in furtherance  of  his  therapy  and  as  an
ethical matter.  He did not know he was gay at  the  time  he  enlisted,  so
there  was  no  intent  to  deceive.   He  has  not  been  involved  in  any
misconduct, nor has he failed to meet any term or condition of his  contract
with the Air Force.

In support of his appeal, the applicant provided a personal statement.

Applicant’s complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 8 June 1992, applicant was appointed second lieutenant,  Medical  Service
Corp (MSC).

Applicant  was  an  Armed  Forces  Health  Professions  Scholarship  Program
(AFHPSP) student from 17 August 1992 through 2 May 1995.

On 18 July 1995,  the  Chief,  Civil  Law,  recommended  that  applicant  be
administratively withdrawn from the AFHPSP for being involved in  homosexual
conduct by way of making “homosexual statements.”





On 11 July 1995 his scholarship benefits were stopped.

During the discharge process he disputed the recoupment  of  funds  expended
for his education.

On 12 November 1997, the Air Force Personnel Council directed the  applicant
be honorably discharged and determined he  was  required  to  reimburse  the
United  States  Government  for  the  funds  expended  on   his   education.
Indebtedness incurred by applicant totaled $78,298.46.

He was discharged on 20 November 1997, under the provisions of AFI  36-3209,
Separation Procedures for Air National Guard and Air Force Reserve  Members,
(homosexual conduct), and he received an honorable discharge.

_________________________________________________________________

AIR FORCE EVALUATION:

The Director of Personnel Program  Management,  HQ  ARPC/DP,  reviewed  this
application and  states  that  Title  10  U.S.C.,  Section  2005  authorizes
recoupment of funds if a  person  voluntarily,  or  because  of  misconduct,
fails to complete the period of active duty specified in the  contract.   In
the HPSP contract signed by the applicant, he agrees that  if  he  fails  to
meet the applicable standards of the Air Force, then, at the option  of  the
Air Force, he may be asked to repay funds rather than serve on active  duty.
 A review of the applicant’s discharge case by their  Staff  Judge  Advocate
determined the inquiry into the  reasons  for  discharge,  and  the  further
inquiry  into  recoupment,  were  complete  and  legally  sufficient.   They
recommend denial of applicant’s request.

A complete copy of the Air Force evaluation is attached at Exhibit C.
_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The counsel for the applicant reviewed the advisory opinion and states  that
for reasons set forth in his earlier correspondence, the  applicant  is  not
in violation of the contract as written.  While the Air Force could draft  a
contract that would cover the factual situation present here, it did not  do
so.  Accordingly, because the Air Force breached first, it is  not  entitled
to recoupment.

Counsel’s complete response is attached at Exhibit E.

_________________________________________________________________


ADDITIONAL AIR FORCE EVALUATION:

The Chief, General Law Division, Office of the Judge  Advocate  General,  HQ
USAF/JAG, reviewed this application and  states  that  counsel’s  assertions
are that applicant was not “in violation of the contract  [i.e.,  the  Armed
Forces Health Professions  Scholarship  and  Financial  Assistance  Contract
entered into by Mr.     ] as written.”  Succinctly  put,  Mr.   argues  that
recoupment of funds expended for medical school costs under 10  U.S.C.  2005
is impermissible because  he  did  not  voluntarily  seek  to  separate,  he
engaged in no misconduct, and he did not fail to meet any term or  condition
of his contract with the  Air  Force.   Instead,  he  alleges  that  he  was
discharged because of his homosexual “status.”

The 17 May 1994,  memorandum  from  Deputy  Secretary  Deutch  (the  “Deutch
Memorandum”) governs recoupment against personnel separated  or  disenrolled
for homosexual conduct.  The Deutch Memorandum established the  policy  that
homosexual conduct can be a basis for  recoupment  only  where  the  conduct
could  give  rise  to   an   under   than   honorable   conditions   service
characterization or  is  punishable  under  the  Uniform  Code  of  Military
Justice.  On  its  face,  this  would  seem  to  preclude  recoupment  where
separation is based only on homosexual statements.  However, the  memorandum
goes on to state that,  in  determining  whether  a  member  has  failed  to
fulfill his service  obligation  “voluntarily  or  because  of  misconduct,”
recoupment “would be appropriate where, based on the  circumstances,  it  is
determined that the member made the statement for  the  purpose  of  seeking
separation.”

As this action was subject to the Deutch  Memorandum,  recoupment  would  be
appropriate  if  it  was  determined  that  applicant  made  his  homosexual
statements for the purpose  of  seeking  separation.   While  the  file  you
submitted does not contain the show cause authority’s  determination  as  to
whether homosexual statement was or was not made for the purpose of  seeking
separation, it does contain the  investigating  officer’s  finding  to  that
effect and the 12 November 1997  Secretarial  action  directing  recoupment,
which presumes that such a determination was made.  You may wish to  examine
the original file if you have any doubts on this matter.

The “contract” entered into by  the  applicant  is  subject  to  the  Deutch
Memorandum, and the arguments made by applicant against recoupment  must  be
assessed in the context of the Memorandum’s  requirements.   In  this  case,
the  Secretary  of  the  Air  Force  determined  that  applicant  made   his
homosexual statements for  the  purpose  of  seeking  separation,  and  that
determination is the basis for recoupment.

A complete copy of the  additional  Air  Force  evaluation  is  attached  at
Exhibit F.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was  forwarded  to  the  applicant  on  9
November 1998, for review and response.  As of this date,  no  response  has
been received by this office.

_________________________________________________________________

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 error or injustice.  After reviewing the  evidence  of
record, we believe that it is in  the  interest  of  justice  to  waive  any
requirement that the applicant reimburse the government for  funds  expended
on his HPSP education.

4. A May 17, 1994,  memorandum  from  Deputy  Secretary  of  Defense  Deutch
governs  recoupment  against  personnel   separated   or   disenrolled   for
homosexual conduct.  Under the memorandum, a member's statement that  he  or
she is a homosexual may constitute  grounds  for  separation  but  does  not
constitute a basis for  recoupment.   The  memorandum  adds,  however,  that
recoupment would be appropriate where, based on  the  circumstances,  it  is
determined that the member made the statement for  the  purpose  of  seeking
separation.

5.    On 17 April 1995, the applicant, a second year student  in  the  Armed
Forces Health Profession Scholarship Program (HPSP) informed the  Air  Force
through his attorney that he was a homosexual.  According to the  report  of
inquiry conducted in  regard  to  the  recoupment  action,  there  is  ample
evidence that the applicant did  not  know  of  his  homosexuality  when  he
signed the financial assistance contract and  that  he  did  not  intend  to
defraud the Air Force.  This is supported by the psychiatric record  and  by
the fact that he made  his  revelation  after  only  two  years  of  medical
school.  Further, there is evidence that the applicant made  his  statements
divulging his  sexual  orientation  for  reasons  related  to  psychological
therapy and personal ethics rather than for the purpose of  separating.   We
are aware that there is additional,  conflicting  evidence  of  record  that
supports the actions taken by the Air Force.  However, we believe  that  the
evidence described above warrants granting relief to avoid  the  possibility
of an injustice.

6.    We are mindful of the concerns of the Air Force about cases  in  which
individuals provide false statements to  enter  or  separate  from  the  Air
Force.  However, the circumstances  surrounding  applicant’s  admission  and
subsequent  discharge  do  not  persuade  us  that  this  is  such  a  case.
Therefore, based on the totality of  the  evidence  before  this  Board,  we
recommend his records be corrected to the extent indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that at the time of  his  discharge  from
the Air Force,  the  Secretary  of  the  Air  Force  found  that  under  the
particular circumstances of his case, his discharge for misconduct  was  not
within the meaning of Title 10, United States Code, Section 2005,  and  that
accordingly, no debt was established to  reimburse  the  United  States  for
funds expended on his education under the Armed  Forces  Health  Professions
Scholarship Program (AFHPSP).

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 4 February 1999, under the provisions of AFI 36-2603:

            Mr. Douglas J. Heady, Panel Chair
            Mr. Gregory W. DenHerder, Member
            Mr. James R. Lonon, Member

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

   Exhibit A.  DD Form 149, dated 13 March 1998, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ ARPC/DP, dated 9 June 1998.
   Exhibit D.  Letter, SAF/MIBR, dated 29 June 1998.
   Exhibit E.  Letter, Applicant, dated 6 July 1998.
   Exhibit F.  Letter, HQ USAF/JAG, dated 30 October 1998.
   Exhibit G.  Letter, SAF/MIBR, dated 9 November 1998.




                 DOUGLAS J. HEADY
                 Panel Chair


AFBCMR 98-00785





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 APPLICANT, XXX XX XXXX, be corrected to show that at the time
of his discharge from the Air Force, the Secretary of the Air Force found
that under the particular circumstances of his case, his discharge for
misconduct was not within the meaning of Title 10, United States Code,
Section 2005, and that accordingly, no debt was established to reimburse
the United States for funds expended on his education under the Armed
Forces Health Professions Scholarship Program (AFHPSP).




            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency