RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-02386
            INDEX CODE:  128.00

            COUNSEL: STEPHEN L. COLLIER

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

Order  for  recoupment  of  all  funds  expended  on  Armed  Forces   Health
Professions Scholarship Program (AFHPSP) be rescinded.
_________________________________________________________________

APPLICANT CONTENDS THAT:

The counsel for the applicant states that at no time did the Air Force  find
that applicant voluntarily separated from the  Air  Force,  engaged  in  any
misconduct, engaged in homosexual acts that could result in  an  other  than
honorable discharge, or that he made a statement regarding a  propensity  to
engage in homosexual acts in order  to  obtain  separation.   At  all  times
petitioner  wished  to  complete  his  active  duty  and  was  involuntarily
discharged from the Air Force.

The Air Force contends, and applicant denies,  that  he  owes  $71,49.53  in
HPSP funds based upon the Air Force’s order of recoupment  as  a  result  of
his  honorable  discharge.   This  act  of  the  Air  Force  is   arbitrary,
capricious, and an abuse of discretion,  and  otherwise  not  in  accordance
with law for the following reasons:  (See petition - pages  4-5,  paragraphs
a-d).

The Air Force ordered recoupment  without  stating  any  reasons  justifying
recoupment under its regulations.  The recoupment order was contrary to  the
Air Force regulations (AFI 36-3209, section 1.18.5)  and  Title  10  U.S.C.,
section 2005.

10 U.S.C. & 2005(g) and AFI 36-3209 section 1.18.4 and  1.18.5  require  the
Secretary  of  the  Air  Force  to  investigate  all  claims   of   disputed
recoupment, and require the investigating officer to state in a  report  the
official’s  assessment  as  to  whether  misconduct  or  other  grounds  for
recoupment  occurred.   In  order  to  order  recoupment,  specific  written
findings must be made by the Air Force that during applicant’s current  term
of service, he engaged in homosexual conduct that constitutes  a  basis  for
recoupment.

Applicant objected to and  disputed  the  order  of  recoupment.   Prior  to
ordering recoupment, the Air Force made no report  stating  that  misconduct
or other  grounds  justifying  recoupment  occurred.   No  specific  written
findings were made that  applicant’s  engaged  in  homosexual  conduct  that
constitutes a basis for recoupment.

Applicant’s complete submission is attached at Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

On 13 June 1986, applicant  entered  the  Armed  Forces  Health  Professions
Scholarship Program (AFHPSP).

He was appointed to the grade of second lieutenant in the Air Force  Reserve
as a Medical Services Corps (MSC) officer.

In June 1990, applicant graduated from Chicago Northwestern Medical School.

On 7 August 1990, applicant was appointed captain of the Air  Force  Reserve
(AFRes), Medical Corps (MC).  He then received a deferment to attend a five-
year civilian medical residency program in psychiatry.

On 12 December 1994,  applicant  signed  a  letter  to  Colonel  D,  Medical
Executive and Physician Management  that  stated  “I  have  decided  that  I
should inform you, prior to beginning active duty service, that I am gay.”

On 9  August  1995,  the  commander,  detailed  an  Individual  Mobilization
Augmentee Judge Advocate, to conduct an inquiry  into  all  aspects  of  the
facts and circumstances concerning statements made by the applicant.

On 21 January 1997, the inquiry was completed and the findings sent  to  the
commander.

On 10 February 1997, the commander closed the  inquiry  and  concluded  that
the  findings  and  recommendations  regarding  recoupment   satisfied   the
requirements of 10 U.S.C. 2005(g).

On 27 February 1997, applicant was notified of  his  commander’s  intent  to
initiate discharge action.

On  15  May  1997,  applicant  waived  consideration  of  his  case  by   an
administrative discharge board.

On 5 November 1997, the Secretary of the Air Force  directed  the  applicant
be honorably discharged and determined that he  was  required  to  reimburse
the United States Government  for  the  funds  expended  on  his  education.
Indebtedness incurred by applicant totaled $71,429.53.

He was discharged on 19 November 1997, under the provisions of AFI  36-3209,
paragraph 2.31.2, Separation Procedures  for  Air  National  Guard  and  Air
Force Reserve Members, (homosexual conduct), and he  received  an  honorable
discharge.
_________________________________________________________________

AIR FORCE EVALUATION:

The Staff Judge Advocate, HQ ARPC/JA, reviewed this application  and  states
that this record conclusively  demonstrates  the  validity  of  Colonel  B’s
conclusions that:  (1) given the applicant’s statement, he failed  to  prove
by a preponderance of the evidence that he was not a person who engaged  in,
attempted to engage in, had a  propensity  to  engage  in,  or  intended  to
engage in homosexual actions; and (2) he voluntarily made the statements  to
cause the initiation of a separation action against  him  that  would  allow
him to avoid the active duty military service that he had agreed to  perform
in return for the advanced educational assistance he received under  AFHPSP.
 Buttressing Colonel B’s findings are these revelatory  facts:   that,  even
though the applicant had known of  his  homosexuality  since  the  “Fall  of
1988” he failed to disclose this fact until he  had  completed  his  medical
education at government expense and a residency in  psychiatry  in  deferred
status; that “in a letter dated 30 November 1994,  the  Air  Force  notified
the applicant to schedule a physical since his active  duty  obligation  was
to commence in the new year.  On 12 December 1994, within days of  receiving
notice to schedule his active duty physical, [the applicant]  submitted  his
homosexual orientation statement” [Colonel B’s 21 January 1997  memorandum];
that the applicant “completes his physical on 18 January  1995  and  shortly
thereafter submits a list  of  homosexual  organizations  to  which  he  had
belonged with points of contact to verify  his  homosexuality”  [21  January
1997 memorandum]; and that “with active duty orders pending and, I  believe,
to drive home his point, [the applicant] calls his medical advisor and  asks
for housing for his “boyfriend” at  his  first  active  duty  assignment  at
Scott AB.”  (21 January 1997 Memorandum.)  Therefore, they recommend  denial
of applicant’s request.

A complete copy of the Air Force evaluation, with  attachment,  is  attached
at Exhibit C.

_______________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel for the applicant  reviewed  the  evaluation  and  states  that  the
opinion bases its conclusion regarding recoupment entirely  on  the  January
21, 1997 memorandum of Colonel  B.   Contrary  to  Colonel  B’s  conclusions
regarding recoupment, the record indicates that applicant’s  statements  are
entirely consistent with a wish to complete service.  The only  evidence  in
the record is that applicant wanted to complete his term of service.

The record indicates that applicant informed  Colonel  D.  on  December  12,
1994, that he was gay.  He  indicated  that  after  much  consideration,  he
wished to inform the service of this fact, and he did not believe  that  his
sexual orientation would affect his ability to serve in the Air Force  as  a
child psychiatrist.

In his interview with Colonel B, the applicant  stated  that  he  wanted  to
stay in the Air Force.  He always felt that it would be great to  work  with
service members as a psychiatrist, and that it would be a  wonderful  career
experience and a great  opportunity.   He  has  strong  feelings  about  the
military and would like to be a part of it.  He stated that at the  time  he
made the statement  that  he  was  gay,  he  had  reached  a  point  in  his
development  where  he  no  longer  felt  comfortable  hiding   his   sexual
orientation from people.  As a psychiatrist, he felt that it  was  important
to his mental health that he be open  about  his  sexual  orientation.   The
policy of recoupment was unknown to him at the time and had  no  bearing  on
his statement.

The opinion relies heavily on the  timing  of  applicant’s  statement,  soon
after being informed of his duty assignment in 1994, despite the  fact  that
he learned he was gay in 1988.  There  is  nothing  inconsistent  with  this
timing of events and petitioner’s sincere  wish  to  continue  his  service.
Petitioner states in his letter that he was responding to the recent  policy
changes by the military regarding homosexuality (“don’t ask,  don’t  tell”).
Petitioner learned about these changes from the media in 1993.

When a person first realizes that he is homosexual, he may  keep  it  secret
or tell close friends or family.  It is unlikely that he  would  immediately
tell an employer, or the Air Force, or other institutions about this  highly
personal matter.  However, over time, he  becomes  more  accustomed  to  his
orientation and realizes that he must tell his employer.

The Air Force policy requires homosexuals to  be  discharged  due  to  their
sexual   orientation,   but   permits   recoupment   only   under    certain
circumstances.  The Air Force  should  not  be  allowed  to  penalize  those
homosexuals who are open about their orientation by ordering  recoupment  as
a means of keeping them quiet.

Counsel’s complete response is attached at Exhibit E.
_________________________________________________________________

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 reviewing the  evidence  of
record, we are not persuaded that the applicant’s records are  in  error  or
that he has been the victim of an injustice.   His  contentions  are  noted;
however, in our opinion, the detailed comments provided by  the  appropriate
Air Force offices  adequately  address  those  allegations.   Therefore,  we
agree with opinions and recommendations of the Air  Force  and  adopt  their
rationale as the basis for the conclusion that the applicant  has  not  been
the victim of an error or injustice.  In the  absence  of  evidence  to  the
contrary, we find no compelling  basis  to  recommend  granting  the  relief
sought in this application.

4.    The applicant's case is adequately documented  and  it  has  not  been
shown that a personal appearance with or  without  counsel  will  materially
add to our understanding of the issue(s) involved.  Therefore,  the  request
for a hearing is not favorably considered.
_________________________________________________________________

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 27 October 1999, under the provisions of AFI 36-2603:

                  Mr. Douglas J. Heady, Panel Chair
                  Mr. Gregory W. Den Herder, Member
                  Mr. Michael V. Barbino, Member



The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 14 August 1998, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, ARPC/JA, dated 25 November 1998,
   w/atch.
   Exhibit D.  Letter, SAF/MIBR, dated 21 December 1998.
   Exhibit E.  Letter, Counsel, dated 15 January 1999.




                                DOUGLAS J. HEADY
                                Panel Chair