RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 98-01469
                 INDEX CODE 128.10
      XXXXXXXXXXXXXXX  COUNSEL:  None

      XXXXXXXXXXXXXXX  HEARING DESIRED:  No
_________________________________________________________________

APPLICANT REQUESTS THAT:

He be relieved of his debt of $51,751.69 in scholarship funds expended
under the Health Professions Scholarship Program (HPSP).
_________________________________________________________________

APPLICANT CONTENDS THAT:

It was always his intent  to  uphold  every  obligation,  service  and
commitment of the contract he signed in  1986.  This  opportunity  was
denied him when the Air Force made a unilateral decision to  medically
disqualify him. Previous inaction by the Air Force directly influenced
the course of the cancer and treatment required. He was to  receive  a
complete exam and the examining physician noted essentially every part
of the exam, including the GU [genito-urinary] system,  as  normal  on
the Report of Medical Examination. In actuality he received  merely  a
cursory exam which did not  include  any  evaluation  at  all  of  his
testicles or GU system. The exam form clearly indicates to enter  “NE”
if not evaluated; however, nowhere is this entered.  The  letter  from
the Chief of US Military Processing Command admits he did not  receive
a detailed testicular examination; that  he  received  an  appropriate
screening  examination.  He  asserts   that   no   such   “appropriate
examination”  occurred.  His  oncologist  has  stated  that,   had   a
testicular exam been done in October 1993, the cancer would have  been
diagnosed then. The further course would have been  directly  affected
then. Specifically, the chance of  the  cancer  spreading,  which  was
actually the case, would have been significantly lessened. This  could
mean that the original surgery would have been curative and his  long-
term survival rate would be significantly greater.

A copy of applicant's complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was accepted into the Air Force component of  the  Armed
Forces HPSP on 30 May 1986. The HPSP contract he signed on  that  date
indicates in paragraph 2.j. that, should he become
unable to commence the period of active duty specified in the contract
because of physical disqualification, he agreed to reimburse the US in
one lump sum for the total cost of advanced education as specified  in
Title 10, USC, Section 2005. The ADSC for HPSP is normally four years.


He began medical school at Vanderbilt University in  August  1986  and
graduated in May 1990.

On 27 October 1993, he underwent a physical  examination  at  the  San
Diego  Military  Entrance  Processing  Station  in   preparation   for
beginning  active  duty  in  July  1994.  On  the  Report  of  Medical
Examination, the examining physician indicated at the  time  that  the
applicant’s GU system was normal.

However, in January 1994 applicant noted a right testicular mass  and,
following examination on 26 January  1994,  underwent  surgery  on  27
January 1994 which disclosed right testicular carcinoma. He advised HQ
AFMPC of the situation on 15 February 1994.

On 25 April  1994,  the  Headquarters  Air  Reserve  Personnel  Center
Surgeon (HQ ARPC/SGS) medically disqualified the applicant  under  AFR
160-43 for right testicular tumor (mixed germ cell) and recommended he
be discharged under AFR 35-41.  HQ ARPC/SGS added  the  applicant  was
not eligible for disability processing under AFR 35-4.

In June 1994, applicant completed his residency in psychiatry  at  the
University of California, San Diego.

On 2 September 1994, the HQ ARPC Staff  Judge  Advocate  (HQ  ARPC/JA)
reviewed the case and found it legally sufficient to  begin  discharge
proceedings under AFR  35-41.  The  JA  advised  the  case  should  be
referred to the Secretary of the Air Force (SAF)  for  a  decision  on
recoupment of the $51,751.69 expended on applicant’s education.

On 12 September 1994, applicant was notified of the proposed discharge
action under AFR 35-41. The letter advised him of his rights.   During
this  time,  he  learned  the  cancer  had  spread  and  he  began  an
approximately three-month course of chemotherapy.

In a letter dated 10 October 1994, the applicant requested that, based
on his difficult circumstances, no recoupment action be taken  against
him as part of his disqualification from the Air Force Reserves.

On 12 October 1994, applicant tendered his resignation  and  signed  a
Statement  of  Selection  of  Options   (Physical   Disqualification),
indicating he had not applied for transfer to the Retired
Reserve, had tendered his resignation, did desire to comment, did  not
elect to have his case reviewed by a Physical Disqualification  Review
Board, and had been afforded an opportunity to consult with counsel.

On 24 October 1994, the HQ ARPC/JA reviewed the tender of resignation.
The JA indicated that at the time the discharge was initiated (12  Sep
94), AFR 35-41 had been rescinded and replaced by AFI  36-3209,  dated
12 August 1994. The AFI had been received by the JA on approximately 2
September 1994. The JA stated that using  AFR  35-41  had  no  adverse
impact on the rights of the applicant and that processing of the  case
could proceed under AFR 35-41. The JA recommended that the applicant’s
tender of resignation be accepted and he be honorably discharged  from
the Air Force Reserve.

The SAF, acting through the  [now]  SAF  Personnel  Council  (SAF/PC),
accepted applicant’s resignation  on  18  November  1994  and  further
determined he  was  required  to  reimburse  the  government  for  the
expended scholarship funds.  As  a  result,  applicant  was  honorably
discharged on 1 December 1994.

By letter dated 5 December 1994, the applicant  was  notified  of  his
discharge and that recoupment  action  of  the  $51,751.69  was  being
initiated. He requested a waiver of recoupment  on  11 December  1994;
however, SAF/PC disapproved his request  on  6 January  1995.  Another
request for waiver was again denied by SAF/PC on 13 March 1995.

Applicant forwarded a  series  of  letters  regarding  the  recoupment
action to the SAF, his Congressional  representatives,  and  the  Vice
President.  On  29  September  1997,  applicant  offered  a  lump  sum
settlement of 25% of the requested amount, or $12,938.00.  This  offer
was also denied by SAF/PC on 10 February 1998.
_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Physical Education Branch, HQ AFPC/DPAME, reviewed the case
and states that for the period 1986-1994, while in Medical  School  on
HPSP Scholarship and while completing his residency, the applicant was
in  an  inactive,  obligated  Reserve  status.  All  HPSP  scholarship
recipients attending medical school and deferred from active  duty  to
complete post graduate training serve in an inactive obligated Reserve
status. Paragraph 4f of applicant’s [HPSP] contract states  that  time
spent in residency training cannot fulfill  obligation  of  Air  Force
HPSP. His medical disqualification  was  unfortunate  and  unforeseen;
however, the Chief recommends the Board comply with the three previous
rulings by the SAF/PC and acknowledge the contractual obligation  made
by the applicant when he signed his contract.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the evaluation and contends it does not acknowledge
or even mention the most important  aspect  of  his  case;  i.e.,  the
negligence and malpractice that was done against him.  The  fact  that
this negligence occurred is undeniable and indefensible and the direct
harm done him is also undeniable. While at this time he does not  seek
damages and compensation, he does ask that this essential and critical
component of his application be given the consideration  it  deserves.
Fair, thorough and impartial review would justly conclude that he  not
be penalized for the malpractice acted against him.

A copy of applicant’s complete response is at Exhibit E.
_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATIONS:

[On 6 November 1998, the AFBCMR Staff  requested  the  AFBCMR  Medical
Consultant to review the case with respect to the applicant’s  medical
circumstances, which he did on 9 November 1998.  On 13 November  1998,
the AFBCMR Staff  also  requested  HQ  USAF/JAG  to  provide  comments
regarding the applicant’s debt.  After coordination with the Office of
General Counsel, HQ USAF/JAG provided an evaluation on 25 June 1999.]

The AFBCMR Medical Consultant reviewed the appeal  and  addresses  the
applicant’s contentions regarding the  examination  he  was  given  in
1993, the subsequent diagnosis/prognosis of testicular cancer, and the
bearing,  if  any,  these  circumstances  have  on  this  case.    The
Consultant concludes that, regardless of the timing of the  diagnosis,
once  it  was  established  the  applicant  would  have   been   found
disqualified for active duty, the administrative actions  taken  would
have been applicable.  Denial is recommended.

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

The Chief, General Law Division, HQ USAF/JAG, begins his  analysis  by
defining the term “waiver” and distinguishing it from “compromise.”  A
“waiver” is the intentional relinquishment or abandonment of  a  known
right or privilege. It forgives the debt and relieves the debtor  from
having to make payment. For the purposes here, the defining feature is
that it is essentially unilateral. In contrast, “compromise”  involves
the “making of mutual concessions by the parties to a dispute in order
to arrive at an amicable  settlement  without  recourse  to  adversary
proceedings.” The author explains why the applicant’s compromise offer
would have to be rejected, and concludes that the Secretary of the Air
Force, acting personally or through the AFBCMR, has  no  authority  to
waive the applicant’s debt.  He adds that a repayment obligation  does
not become a “debt” or “claim” until an appropriate  official  of  the
federal government determines the amount is owed to the US. It is this
nuance that allows the AFBCMR occasionally to grant relief having  the
practical effect reducing/eliminating a debt. Of course, there must be
a factual basis upon which the AFBCMR  can  find  error  or  injustice
before making such a correction. Congress authorized only two  options
in the event an HPSP participant  fails  to  fulfill  his  active-duty
service obligation: service in another capacity or reimbursement.  Had
Congress thought it appropriate to relieve  [an  individual  separated
from the military for physical disability] of both  a  service  and  a
financial obligation if his disqualification was no fault of his  own,
it could easily have done so or  given  the  Service  Secretaries  the
authority to do so. The AFBCMR  can  correct  records  but  lacks  the
authority to rewrite the law.  Further, even if the applicant suffered
harm as a result of Air Force malpractice [an  allegation  the  AFBCMR
Medical Consultant opined  was  groundless],  his  request  to  forego
recoupment is substantively nothing more than  a  claim  for  monetary
damages (compensation) in the form  of  forgiveness  of  a  $51,751.69
debt. Such a claim is plainly barred  by  Feres  v.  US.   The  author
recommends against relief.

A copy of the complete additional evaluation, with attachment,  is  at
Exhibit G.

_________________________________________________________________

APPLICANT’S RESPONSE TO THE ADDITIONAL EVALUATIONS:

The  applicant  provided  a  rebuttal,  asking   how   it   has   been
substantiated that he had a testicular examination as  the  evaluation
indicates. There has been no evidence reported that would suggest  his
claim that  no  testicular  exam  was  done  is  erroneous  or  false.
Further, he obtained medical consultation one day after  noticing  the
abnormality.  He questions the  qualification of  the  AFBCMR  Medical
Consultant. His board-certified oncologist has different opinions. The
27 October 1993 Medical Exam is clearly and negligently erroneous. His
is an appropriate case for relief.

Applicant’s complete rebuttal is at Exhibit I.

_________________________________________________________________

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. After a thorough  review
of the evidence of record  and  applicant’s  submission,  we  are  not
persuaded that the applicant should be  relieved  of  his  HPSP  debt.
Applicant’s contentions are duly noted; however, we do not find  these
assertions, in and by themselves, sufficiently persuasive to  override
the rationale provided by the Air Force. We therefore agree  with  the
recommendations of the Air Force and adopt the rationale expressed  as
the basis for our decision that the applicant has  failed  to  sustain
his burden of having suffered either an error or an injustice. In view
of the above and absent persuasive evidence to the contrary,  we  find
no compelling basis to recommend granting the relief sought.
_________________________________________________________________

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 30 September 1999, under the provisions of AFI 36-
2603:

                  Mr. Richard A. Peterson, Panel Chair
                  Mr. Patrick R. Wheeler, Member
                  Ms. Rita J. Maldonado, Member

Mr. Wheeler and Ms. Maldonado voted to deny the  appeal;  Mr. Peterson
recused himself from voting.

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 18 May 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPAME, dated 9 Jul 98.
   Exhibit D.  Letter, AFBCMR, dated 3 Aug 98.
   Exhibit E.  Letter, Applicant, dated 25 Aug 98.
   Exhibit F.  Letter, AFBCMR Medical Consultant, dated 9 Nov 98.
   Exhibit G.  Letter, HQ USAF/JAG, dated 25 Jun 99.
   Exhibit H.  Letter, AFBCMR, dated 9 Jul 99.
   Exhibit I.  Letter, Applicant, dated 6 Sep 99.



                                   RICHARD A. PETERSON

                                   Panel Chair