RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-03568
            INDEX CODE: 136.00

            COUNSEL:  LOUIS N. HIKEN

            HEARING DESIRED: YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

The Air Force accept her resignation and  discharge  from  the  service  for
hardship/dependency, or, in the alternative, she be assigned to active  duty
at a base in the San Francisco Bay area.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In 1995, she married her current husband and they had their first  child  in
1996.  She is expecting their second child in February  1999.   Her  husband
is  a  post-graduate  doctoral  student  in  oncology/gene   therapy.    His
qualifications are such that there are not one in one  million  students  in
this country possessing his expertise and training.  He is  currently  under
a six-year contract with Stanford University Medical Center to complete  his
work in the vital area of gene therapy and cancer research.  There are  only
two or  three  other  institutions  in  the  entire  nation  that  have  the
equipment and expertise to effectively  utilize  his  skills  and  training.
Recognizing the difficulty that they would have  in  finding  an  Air  Force
placement for her that would allow the family unit  to  stay  together,  she
and her husband started as early as 1995 to contact the Air Force to  figure
out  how  to  accommodate  her  need  for  carrying  out  her  active   duty
obligation, while at the same time permitting  him  to  pursue  his  career.
The Air Force personnel that they contacted  repeatedly  assured  them  that
every effort would be made  to  accommodate  their  situation.   Up  to  and
including the month that they informed the Air Force that  her  husband  was
signing a contract for a six year commitment  to  Stanford,  the  Air  Force
continued to assure them of its cooperation.  Two and  a  half  weeks  after
her husband signed his contract, the Air Force ordered  her  to  report  for
duty at Luke AFB in Arizona.  She then filed a request for  Resignation  and
Discharge based upon AFI 36-3209.  Without  even  addressing  the  questions
raised by the pediatricians and family members concerning the  psychological
damage that would accrue to the infant children arising from the  separation
of the parents for an
extended period  of  time,  the  Air  Force  denied  the  request  with  the
explanation that  pregnancy,  while  generally  a  basis  for  granting  the
request, would not apply to the applicant’s situation  because  of  the  Air
Force’s need for “investment payback.”  She has offered  to  compensate  the
Air Force for all funds which she received as a result of her  participation
in the Scholarship program.  She faces an  irreconcilable  conflict:  either
separate herself from her husband and/or infant children for at  least  four
years, or refuse to comply with her military obligation.  AFI  36-3209  does
not demand such a sacrifice.  It is designed specifically for  the  sort  of
hardship envisaged by the Air Force’s refusal to accommodate  the  needs  of
the entire family unit.  By signing up for the Scholarship program, she  was
neither required to nor should she have been expected  to  remain  childless
or  single.   She  informed  her  husband  immediately   of   her   military
obligations and together they made every reasonable  effort  they  could  to
comply with their family’s needs and that  of  the  service.   Her  repeated
attempts to notify  the  Air  Force  of  the  unique  circumstances  of  her
husband’s employment and expertise should have forewarned the Air  Force  of
the need for a particularized placement as a result of  her  situation.   It
is simplistic and disingenuous for the Air Force to respond that a  contract
is a contract.  It would be just as reasonable for her to respond  with  the
obvious, a hardship is a hardship.  Instead, she seeks one of two  fair  and
reasonable compromises: either allow her to pay the military  back  for  the
funds she has used, and permit her to resign and remain with her family,  or
reassign her to a location in which she and her family can remain  together,
taking into account the contractual obligations  incurred  by  her  husband,
with the Air Force’s knowledge.

In support of the appeal, applicant  submits  statements  from  the  medical
profession indicating applicant is experiencing stress  and  depression  and
her  clinical  performance  has  suffered  as  a  result  of  the   possible
separation from her husband and children.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving on extended active duty in the  grade  of
captain.

On 5 April 1990, applicant was appointed  a  2nd  Lieutenant,  Medical  Corp
(MC), Reserve of the Air Force and entered an Air Force  Health  Professions
Scholarship Program/Financial Assistance Program  (AFHPSP/FAP)  contract  in
which she agreed to serve on active duty for a specific period  of  time  in
exchange for the Air Force paying her educational expenses while in  medical
school.

On 29 May 1994, the applicant was appointed Captain, MC, Reserve of the  Air
Force.

From 27 August 1990 to 10 June 1994, applicant attended  the  University  of
Southern California under the AFHPSP/FAP.  The Air Force paid $93,280.85  on
the applicant’s behalf.  She incurred a four  year  commitment  to  the  Air
Force.  She was granted a deferment for  residency  training  in  Obstetrics
and Gynecology (OB/GYN)  incurring  an  additional  obligation  to  the  Air
Force.

On 31 March 1998, the applicant submitted a letter  of  resignation  of  her
commission indicating she felt she would be unable to  dedicate  the  energy
and concentrate the devotion to her duties as an  officer  and  a  physician
while raising two small children alone and commuting to see her husband  and
bring her children to see their father.  She stated she would reimburse  the
government for any expenditures on her behalf.

On 3 June 1998, the Secretary of  the  Air  Force  declined  to  accept  the
resignation tendered on 8 April 1998, by the applicant under the  provisions
of hardship.   The  Secretary  of  the  Air  Force  further  determined  the
applicant’s case did not meet  the  established  discharge  criteria,  which
must be consistently applied in order to ensure fairness for all  Air  Force
members who face similar problems.

During June 1998, the Air Force became aware of health concerns from Dr. S--
-W---, psychiatrist for the applicant.  Additional information was  received
from Dr. P--- B---, the applicant’s residency program, and  Dr.  D---  W---,
faculty advisor/mentor.  These  letters  addressed  in  varying  detail  the
impact the impending geographic separation from her husband  was  having  on
the applicant, both personally and professionally. AETC/SG ordered a  mental
health evaluation for the applicant.

On 11  August  1998,  the  applicant’s  attorney  submitted  a  request  for
reconsideration of her application for resignation  and/or  separation  from
the Air Force, pursuant to AFI 363209, on  the  grounds  of  dependency  and
hardship.

On 4 September  1998,  the  Command  Surgeon/Director  of  Med  Svs  &  Tng,
AETC/SG, indicated the applicant was properly  diagnosed  with  a  recurrent
Major Depressive Disorder  of  moderate  severity.   It  was  the  unanimous
opinion of the mental  health  examiner,  her  attending  psychiatrist,  and
their medical staff that  the  applicant’s  medical  condition  is  of  such
degree that its tendency is for long-term chronicity and a high  probability
of exacerbation, thus: a. Represents a  decided  risk  to  her  health.   b.
Precludes member from satisfactorily fulfilling the  duties  of  her  office
and rank.  c. Imposes unreasonable requirements on the military by  the  on-
going need for extraordinary medical resources
to  adequately  manage  her  recurrent  condition.   They  recommended   the
applicant be considered medically unfit  for  duty  and  be  considered  for
immediate discharge from the Air Force.

On 11  September  1998,  the  Chief,  Physician  Education  Branch,  Medical
Service Officer Management  Division,  AFPC/DPAME,  provided  a  commander’s
statement to ARPC also recommending she be considered  unfit  for  duty  and
separated from the Air Force.

On 27 October 1998, the Secretary of the Air Force again declined to  accept
her resignation under the provisions of  hardship/pregnancy  and  under  the
provisions established for a  miscellaneous  reasons  resignation,  AFI  36-
3209, paragraph 2.46.1.7.

Applicant was to report to Luke AFB in December 1998, but since she  is  due
to deliver her child in February 1999, the Air Force has delayed her report-
not-later-date to 30 April 1999.

_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Medical Service Officer  Mgt  Div,  Directorate  of  Assignments,
AFPC/DPAM, also reviewed this application and states that in  preparing  for
her assignment following  graduation  from  training,  AFPC/DPAMP  solicited
assignment preferences in the fall 1997, as was done  with  all  prospective
graduates.   Her  assignment  preference  sheet,  dated  17  November  1997,
requested assignment placement  after  18  March  1998  to  accommodate  her
civilian spouse’s match to a medical residency training  program.   She  was
advised by phone that a preferred method  to  ensure  collocation  with  her
husband would be for her to take an assignment and for her husband to  apply
for training in the same location.   She  preferred  to  wait  and  let  her
husband’s selection drive her assignment.  Most  Air  Force  assignments  in
OB/GYN for summer 1998 rotations  were  matched  by  14  March  1998,  which
severely  limited  opportunities  available  for   her   placement.    After
receiving notification of her husband’s match to  Stanford  University,  all
requirements  for  Air  Force,  Army,  and  Navy   OB/GYN   were   reviewed.
Consultation was also conducted with their OB/GYN consultant at Travis  AFB.
 There are no Air Force OB/GYN opportunities in the San Francisco Bay  area.
 There were no requirements for either the Army  or  Navy  to  fill  in  San
Francisco.  Luke AFB was the nearest facility available matching her  skills
and training.  She was  placed  on  assignment  to  Luke  AFB,  with  MAJCOM
concurrence.  Because of delays associated  with  the  BCMR  process  and  a
delay due to the unstable status of her current pregnancy, the
applicant has not entered active duty pending the outcome of this  BCMR  and
her delivery.   Reaffirmation  of  the  two  previous  denials  of  hardship
discharge is appropriate and the assignment to Luke AFB should stand.

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

The Staff Judge Advocate, AFPC/JA,  reviewed  this  application  and  states
that the Secretary of the Air Force acted appropriately  when  declining  to
accept the applicant’s two tendered resignations.   The  applicant  made  an
informed decision to sign a contract and go to medical school at  government
expense, knowing full well that the possibility existed that she  might,  at
a later date, become married and have children.  Her  contract  specifically
stated that pregnancy would not be an automatic reason for separation.   AFI
36-3209, paragraph 2.46.1.1 also specifically  states  that  undue  hardship
does not necessarily exist solely because members are separated  from  their
family.  The nature of  the  armed  forces  unfortunately  requires  such  a
sacrifice.  In addition, while the general Air  Force  policy  has  been  to
approve separation requests due to pregnancy, an appropriate  exception  has
embodied the long-standing policy not to approve such requests if an  active
duty service  commitment  (ADSC)  is  incurred  as  a  result  of  high-cost
training; e.g., AFHPSP/FAP.   Applicant’s  services  are  essential  to  the
accomplishment  of  the  Air  Force’s  mission.   AFI   36-3209,   paragraph
2.46.1.5.  The Air Force would not  be  using  taxpayer’s  dollars  to  fund
medical school tuition, and granting  deferments  for  residence  in  OG/GYN
(“critical needs of the Air Force in this specialty”), if the need for  such
services was not essential. While any objective person  would  be  sensitive
to the applicant’s  situation,  it  is  not  deserving  of  the  remedy  she
requests.  There  has  been  no  error  committed  warranting  relief.   The
decision to decline to  accept  her  tendered  resignation  was  clearly  in
accordance with the  applicable  Air  Force  Instruction  and  the  contract
signed by the  applicant,  and  is  consistent  with  the  precedent  firmly
established for other officers similarly situated.  Nor has  there  been  an
“injustice” in this case.  Applicant was on full notice when she signed  her
contract in 1990 that this situation might arise and that pregnancy was  not
an automatic reason for separation.  Applicant has failed  to  establish  by
relevant evidence of any error or injustice warranting  relief.   For  these
reasons, they recommend the application be denied.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s attorney reviewed the Air Force evaluations and states  that
the Air Force has forced the applicant into an impossible situation.  It  is
manifest that she is not going to leave her 2-month child or her 2-year  old
child in the care of her husband for the next 4 years, while she  serves  at
a base 800 miles away.  They do  not  really  believe  that  the  Air  Force
thinks that is a viable choice for her.  What is at the bottom  of  the  Air
Force’s refusal to discharge the applicant as being medically  unfit,  grant
her request for resignation or hardship discharge,  or  transfer  her  to  a
location in the San Francisco Bay area  where  she  could  keep  her  family
intact, is the suggestion that her spouse could, instead, give  up  his  job
and research appointment to accompany the family  to  Arizona,  or  wherever
she might have to go.  A  review  of  the  documentation  submitted  by  her
husband and his employers should shed light on  why  this  is  an  untenable
suggestion.  The program the applicant’s  spouse  is  participating  in  can
only be pursued at one of a few institutions anywhere in this country.   His
specialization and skills are so rare that it would be  extremely  difficult
to find a replacement for him in the field he is pursuing.  His  is  both  a
PhD and a medical degree program that cannot be transferred or  deferred  by
merely relocating to a different school somewhere else in the country.   The
spouse’s genetic/cancer research  is  of  vital  importance  to  the  entire
nation, even though it is in a civilian capacity.  If  he  were  to  try  to
break his 6-year contract with Stanford University at this  time,  he  would
be giving up the entire medical/professional career  he  has  been  pursuing
throughout his post-graduate education, and the loss would  be  devastating.
AFI  36-3209  certainly  covers  the  sort  of  hardship  entailed  in  this
situation.  If the Air Force does not feel that it can assign the  applicant
to a duty station where  she  can  keep  her  infant  children  and  husband
together, then they should discharge her.  As the medical letters  submitted
to the Board indicate, it would create serious psychological damage  to  the
applicant and her children for the family to be torn apart.  Nothing in  the
documentation submitted by HQ AFPC or the SJA rebuts this evidence.

Applicant's complete response is attached at Exhibit F.

_________________________________________________________________

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  warranting  acceptance  of  the
applicant’s  resignation  based  on  hardship.   While   we   are   somewhat
sympathetic to  the  applicant’s  concern  about  her  pregnancy  and  being
stationed closer to her husband, we also are aware  of  the  agreement  that
she made concerning her commitment to serve on active duty after  completing
Obstetrics and Gynecology  (OB/GYN)  residency  training.   There  are  many
members of the Air Force who are pregnant and separated from their  families
and the applicant is being treated no differently than any other  individual
in similar circumstances.  Therefore, in the  absence  of  evidence  to  the
contrary, we find  no  compelling  basis  to  recommend  acceptance  of  her
resignation and discharge her from the Air Force.

4.    Sufficient relevant evidence has been  presented  to  demonstrate  the
existence of probable error or injustice warranting changing her  assignment
from Luke AFB, AZ to Travis AFB, CA.  After contacting Air  Force  officials
it does appear that there is a position for a OB/GYN at Travis AFB, CA.   It
also appears that Air Force officials have determined that the  position  at
Travis AFB is not suited for the applicant and would  not  be  in  the  best
interest of the Air Force.  However, under  the  circumstances  (having  two
children, one being a newborn, and her  husband’s  inability  to  relocate),
the majority of the Board believes that the  applicant  should  be  provided
the opportunity to serve in this position at Travis AFB.   It  is  important
to note that this Board does not believe that  the  applicant  is  unfit  to
serve in the Air Force and has a commitment based on her residency  training
to come on active duty.   We  also  believe  that  the  Air  Force  has  the
obligation to be as considerate as possible when assigning  individuals  who
are in the dilemma as the applicant.  In view of  our  above  determination,
and in the interest of equity, the majority of  the  Board  recommends  that
the applicant be called to active duty effective 30 April 1999  and  ordered
to report to Travis AFB, CA.  It is apparent from the medical  documentation
provided that if the applicant is assigned to Luke AFB, AZ, it  will  be  an
extreme hardship on her and will place a burden on her performance of  duty.
 To remove some of the stress from the applicant, we believe it would be  in
the best interest of the Air Force to assign her to Travis AFB, CA.

5. 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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that extended  active  duty  orders  were
issued by competent authority assigning  her  to  Travis  AFB,  CA,  with  a
reporting date of not later than 30 April 1999.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 9 March 1999, under the provisions of AFI 36-2603:

                  Mr. Terry A. Yonkers, Panel Chair
                  Mr. Clarence D. Long, III, Member
              Ms. Rita J. Maldonado, Member
                  Ms. Gloria J. Williams, Examiner (without vote)

The Board  recommended  denial  of  her  request  to  have  her  resignation
accepted and to be discharged from the  Air  Force  for  hardship/pregnancy.
By a majority vote, the Board voted to correct the records, as  recommended.
 Mr. Long voted to deny the request for a change  in  assignment  from  Luke
AFB, AZ to Travis AFB, CA and has  submitted  a  minority  report  which  is
attached at Exhibit G.  The following documentary evidence was considered:


   Exhibit A.  DD Form 149, dated 21 December 1998, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPAM, dated 29 January 1999.
   Exhibit D.  Letter, AFPC/JA, dated 4 February 1999.
   Exhibit E.  Letter, AFBCMR, dated 12 February 1999.
   Exhibit F.  Counsel’s Response, dated 22 February 1999.
   Exhibit G.  Minority Report.




                                   TERRY A. YONKERS
                                   Panel Chair