RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-01911
            INDEX CODE: 129.00

            COUNSEL:  None

            HEARING DESIRED: No


_________________________________________________________________

APPLICANT REQUESTS THAT:

His original pay date and total federal commissioned  service  date  (TFCSD)
of 15 December 1983 be reinstated.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Statement of Understanding (AETC Form 1430) he signed on 16 August  1983
did not state that his graduation date would establish his pay  and  service
dates, nor did AFR 36-15  (15  September  1981  version)  state  this.   The
Statement  of  Understanding  and  AFR  36-15   were   changed   after   his
commissioning.  He was encouraged to take his oath as soon  as  possible  to
establish his pay and service dates.  These  dates  were  validated  by  Air
Force Military Personnel Center (AFMPC)  and  reflected  in  all  Leave  and
Earning Statements  (LESs)  until  1988,  when  the  rules  were  apparently
changed and applied retroactively.  The benefits of commissioning  as  early
as possible were clearly used as a  recruiting  enticement  to  get  him  to
execute the Oath  of  Office  as  early  as  possible.   Subsequent  to  his
commissioning date, he canceled several interviews for  other  post-graduate
dental programs and  thus  believed  that  he  was  committed  to  the  USAF
Reserves.  He believed Lt Col  A---,  Chief,  Medical  Recruiting  Division,
Directorate of Health Professions Recruiting, when he stated in  his  letter
dated  1  December  1983  that,  “Appointment  is  effective  on   date   of
acceptance.”  This statement, along with those of recruiters, several  other
attached documents and the 1981 version of AFR 36-15 leads  him  to  believe
the original pay and service date of 15 December 1983 should be reinstated.

In support of the  appeal,  applicant  submits  a  personal  statement,  two
letters from the Chief, Medical Recruiting Division, Directorate  of  Health
Professions  Recruiting;  a  letter  from  Chief,  Officer  Actions  Branch,
Directorate of Personnel Data Systems; Statement of Service (AF Form  1613),
dated 7 January 1988; AFR 36-15 excerpt, dated 15 September 1981;  Statement
of Understanding (AETC Form 1430), dated 16 August 1983; AFR 36-15  excerpt,
dated 1 August 1987; Commissioning Document  (DD  Form  1),  dated  23  July
1984; Reserve Appointment Order (AF Form 778), dated  27 January  1984,  and
Application for Waiver of Erroneous Payments (AF Form 1782), undated.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving on extended  active  duty  (EAD)  in  the
grade of lieutenant colonel.

On 16 August 1983, the  applicant  signed  a  “Statement  of  Understanding,
Applicant for Extended Active Duty USAF Medical  Service,”  ATC  Form  1430,
which stated “I  understand  that  I  am  being  conditionally  tendered  an
appointment conditional on receipt of my qualifying degree and  the  failure
to receive that degree by 13 May 1984  will  result  in  revocation  of  the
conditional tender of appointment.”

On 15 December 1983, the applicant was tendered  a  conditional  appointment
in the grade of first lieutenant (1Lt), Reserve of  the  Air  Force,  Dental
Corps (DC), pending completion of dental school.

On 15 December 1983, he executed an Oath of Office  and  his  pay  date  and
TFCSD were established.

On 13 May 1984, the applicant graduated form dental school.

On 2 July 1984, the applicant was ordered to extended  active  duty  in  the
grade of captain, USAFR, DC.

On 1 August 1984, AFR 36-15,  paragraph  6-4  was  amended  to  include,  “I
further understand and agree that my date of graduation and  no  other  date
will be used to  compute  my  service,  promotion,  and  pay  dates.”   This
language was not included in the Statement of Understanding  signed  by  the
applicant on 16 August 1983.

In January 1988, AFPC conducted an audit in which  all  records  of  members
who  had  been  given  constructive  service  credit  were  reviewed.    The
applicant’s records were corrected to reflect the pay date and TFCSD  of  13
May 1984 (his date of graduation) instead of 15 December 1983 (date he  took
oath of office).  This was done to be consistent with the  then-current  AFR
36-15, even though the relevant  amendment  to  paragraph  6-4  was  not  in
effect when the applicant took his Oath of Office.  The applicant  requested
a waiver for repayment and it was granted at that time.

_________________________________________________________________

AIR FORCE EVALUATION:

The  Chief,  Service   Verification,   Director   of   Personnel   Programs,
AFPC/DPPAOR, reviewed this application and states that it is very  important
that all officers within their specific competitive category (in  this  case
all dental officers) be treated  the  same  with  respect  to  entitlements,
promotions, and seniority.  While  any  misunderstanding  in  this  case  is
regrettable; nonetheless,  the  member  must  possess  a  doctor  of  dental
surgery degree and satisfy other eligible criteria before the member can  be
appointed as a commissioned officer.  Based on the guidance in place at  the
time applicant  was  commissioned,  they  recommend  denial  of  applicant's
request.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant  reviewed  the  Air  Force  evaluation  and  states  that  the
evidence clearly indicates the August 1987 version of AFR 36-15, chapter  6,
para 6-4a(3) was applied retroactively to his military pay date.   No  where
in the September 1981 version of AFR 36-15, chapter  6,  para  6-4a(3),  the
version in effect when he was commissioned, is there a statement  indicating
his military pay date would be contiguous with the date of graduation.   All
documents presented indicate that his appointment was effective 15  December
1983.  Please examine this  application  and  realize  the  disservice  this
retroactive application of regulations has created.

Applicant's complete response is attached at Exhibit D.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUTION:

The  Chief,  Service   Verification,   Director   of   Personnel   Programs,
AFPC/DPPAOR, reviewed this application and  states  that  at  the  time  the
member’s record was audited and corrected in  1988  a  Judge  Advocate  (JA)
review was requested and as a  result  guidance  was  issued  pertaining  to
similar cases.  Considering the JA review  and  guidance  in  place  at  the
time, they recommend the applicant’s request be denied.

A complete copy of  their  evaluation,  with  attachments,  is  attached  at
Exhibit E.

The Senior Attorney-Advisory, AFPC/JA, reviewed this application and  states
that the AFR 36-15 in effect  on  15  December  1983  did  not  require  the
applicant to sign a  Statement  of  Understanding  to  include,  “I  further
understand and agree that my date of graduation and no other  date  will  be
used to compute my service,
promotion, and pay  dates.”   It  wasn’t  until  1  August  1987  that  such
language was added  to  the  regulation.   The  Statement  of  Understanding
signed by the applicant on  16  August  1983  was  silent  on  his  service,
promotion, and pay dates.  The applicant states that his  recruiters,  whose
names he provides, “strongly and repeatedly” emphasized  the  importance  of
taking his commissioning oath as soon as possible “since this  commissioning
date would establish my pay and service dates.”  The 1 December 1983  tender
of appointment from the Chief of Medical Recruiting Division,  which  states
that executing and returning the Oath of Office  constitutes  acceptance  of
his appointment,  supports  the  applicant’s  assertions.   Further  support
comes from the fact that the Air Force established 15 December 1983  as  his
pay date, and compensated him based on this date for the  next  four  years.
Believing on 15 December 1983 that he was committed to  the  USAF  Reserves,
the applicant states that he canceled several  interviews  for  other  post-
graduate dental programs.  Based  on  these  facts  and  circumstances,  the
Statement of Understanding signed by the applicant is  best  interpreted  as
an understanding that he was to be commissioned as soon as he  executed  the
Oath of Office, and that if he did not receive his degree by  13  May  1984,
the commission would be revoked.  As such, his pay date should have been  15
December 1983.  Any other  determination  would  be  inconsistent  with  the
available evidence and cause unwarranted hardship to the applicant, who  had
every reason to believe that he was a member of the Air  Force  Reserves  on
15 December 1983, and relied on such belief.  This conclusion is  consistent
with the 16 November 1988 AFMPC/JA opinion that stated the following:

    “Finally, it is our opinion having these students execute an oath  when
    tendered these ‘conditional appointments’ is misleading  at  best.   If
    they are led to believe, as a result, that they  are  commissioned  and
    can be forced to perform military service, we view  this  as  deceptive
    and dishonest.  The Air Force should deal in  good  faith,  to  include
    health profession students.  These students should be told they are not
    commissioned officers and not obligated to serve until  they  meet  all
    qualifications including graduation and take an oath or begin service.”

The applicant was led to believe that he  was  commissioned  on  15 December
1983.  It was the realization of this unintentional deception that  prompted
AFR 36-15 to be  amended  in  1987  to  make  it  clear  that  the  date  of
graduation and  no  other  date  would  be  used  to  compute  the  service,
promotion, and  pay  dates.   For  the  reasons  stated,  they  believe  the
applicant has established by relevant evidence a prejudicial injustice,  and
they recommend that the applicant’s pay date and  TFCSD  be  changed  to  15
December 1983.

A complete copy of their evaluation is attached at Exhibit F.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the  applicant  on  14
December 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.   AFPC/JA  states  that   the
Statement of Understanding signed by the applicant is  best  interpreted  as
an understanding that he was to be commissioned as soon as he  executed  the
Oath of Office, and that if he did not receive his degree by  13  May  1984,
the commission would be revoked.  As such, his pay date should have been  15
December 1983.  Any other  determination  would  be  inconsistent  with  the
available evidence and cause unwarranted hardship to the applicant, who  had
every reason to believe that he was a member of the Air  Force  Reserves  on
15 December 1983, and relied on such belief.  AFPC/JA  further  states  that
the applicant was led to believe that he  was  commissioned  on  15 December
1983.  It was the realization of this unintentional deception that  prompted
AFR 36-15 to be  amended  in  1987  to  make  it  clear  that  the  date  of
graduation and  no  other  date  would  be  used  to  compute  the  service,
promotion, and pay dates.  In view of the foregoing  and  in  an  effort  to
remove any possibility of an injustice to the applicant, we  recommend  that
his pay date and total federal commissioned service date (TFCSD) be  changed
to 15 December 1983.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to  show  that  his  total  federal  commissioned
service date and pay date is 15 December 1983.

_________________________________________________________________

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
              Ms. Gloria J. Williams, Examiner (without vote)

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

   Exhibit A.  DD Form 149, dated 9 February 1998, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPAOR, dated 23 July 1998, w/atchs.
   Exhibit D.  Applicant's Response, dated 20 August 1998.
   Exhibit E.  Letter, AFMPC/DPPAOR, dated 29 October 1998,
               w/atchs.
   Exhibit F.  Letter, AFPC/JA, dated 24 November 1998.
   Exhibit G.  Letters, AFBCMR, dated 10 August 1998 and
               14 December 1998.





                                   DOUGLAS J. HEADY
                                   Panel Chair


AFBCMR 98-01911




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 his total federal commissioned
service date and pay date is 15 December 1983.




            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency