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
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