RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  99-01316
            INDEX NUMBER:  128.10
            COUNSEL:  MS. KATHLEEN A. KENEALY

            HEARING DESIRED:  NO
___________________________________________________________________

APPLICANT REQUESTS THAT:

The alleged debt incurred as a result of her attendance  at  the  USAF
Academy be removed from her records and her commercial credit  records
be corrected to reflect the correction of this erroneous debt.
___________________________________________________________________

APPLICANT CONTENDS THAT:

The debt is unjust because the Air  Force  delayed  for  years  before
notifying her that it intended to collect the alleged debt.  The  debt
was unjust from its inception because of the military’s unjust  policy
excluding  gay  persons  from  the  service.   In  addition,  she  was
pressured into submitting her resignation from the Air Force  Academy,
on which the debt is based.

Any legal action to collect the debt is time-barred under 28 USC 2415.

Applicant’s complete statement is at Exhibit A.
___________________________________________________________________

STATEMENT OF FACTS:

The relevant facts pertaining to this application, extracted from  the
applicant’s military records, are contained in the letter prepared  by
the appropriate office of the Air  Force  (Exhibit  C).   Accordingly,
there is no need to recite these facts in this Record of Proceedings.
___________________________________________________________________

AIR FORCE EVALUATION:

HQ USAF/JAG reviewed this application and stated that, in their  view,
the  debt  was  lawfully  established  at  the  time  of   applicant’s
disenrollment.  Her written agreement provides that a cadet who  fails
to complete the specific educational requirements (i.e.,  the  Academy
course of instruction) will, at the option of the Secretary of the Air
Force, either serve on  active  duty  in  an  enlisted  status  for  a
specified period or reimburse the United States for the  cost  of  the
education (Form O-205, Part III).  This sort of written  agreement  is
expressly  contemplated  by  10  USC  2005.   Because  applicant  made
homosexual statements, she was disqualified for enlisted service under
the policy in effect at that time (and under the current  policy)  and
therefore had to reimburse the U.S. rather than serve on active  duty.
In this regard, JA  noted  the  agreement’s  recoupment  provision  is
neutral with respect to homosexuality or homosexual  conduct.   It  is
the  failure  to  complete  the  educational  requirements,  not   the
underlying reason  for  that  failure,  that  triggers  the  repayment
obligation.

While the debt may  have  been  lawfully  established  initially,  the
passage of time has rendered them  judicially  unenforceable,  as  the
applicant correctly points out.  The debt is subject to 28 USC  2415’s
six-year period of limitations, so the U.S. lost its ability to  bring
civil suit to enforce the debt in January 1996.  Lack  of  a  judicial
remedy does not mean the debt is  completely  unenforceable.   It  can
still be offset against federal income tax refunds, and  pressure  may
lawfully be exerted through dunning notices,  collection  agents,  and
notices to credit reporting bureaus.

Whether to use such means, however, is a matter of discretion, and the
AFBCMR may conclude they are inappropriate  under  the  circumstances.
There is no doubt the government failed to exercise due  diligence  in
collecting the debt for a period of five or  more  years,  and  during
that time the applicant progressed with her life under the belief that
she did not owe the government anything for her Academy education.  In
their opinion, the  AFBCMR  may  conclude  on  this  record  that  the
continued pursuit  of  the  debt  using  debt  collection  and  credit
reporting tactics constitutes an injustice.   Accordingly,  the  Board
may correct the applicant’s records by directing the  removal  of  any
documents establishing the  debt  (or,  if  removal  of  a  particular
document in its entirety is inappropriate, deletion of  such  portions
of the document that establish the debt).  The complete evaluation  is
at Exhibit C.
___________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was not  timely  filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of a probable error or  an  injustice  warranting  favorable
action on the applicant’s request to relieve her of  the  indebtedness
to the government as a result of her failure to complete  her  service
obligation for attending the United States  Air  Force  Academy.   The
applicant contends that  her  resignation  was  coerced  or  “strongly
encouraged” by Air Force Academy  officials.   A  coerced  resignation
would  of  course  not  be  voluntary  and  hence  would  not  support
recoupment under 10 USC 2005.   The  record  in  this  case  does  not
establish what, if any, actual pressure was put on  the  applicant  to
resign.  We conclude, however, that in the circumstances described  by
the applicant, including  the  asserted  AFOSI  investigation  of  her
sexual orientation, she could have believed that she had no  realistic
alternative to resignation.  Accordingly, as a matter of  equity,  her
resignation should not be considered voluntary for purposes of 10  USC
2005.  The applicant also contends that the  alleged  debt  is  unjust
because the Air Force delayed for several years before  notifying  her
that it intended to collect the alleged debt.  She also  believes  the
debt is unjust from its inception because  the  military’s  policy  to
exclude gay persons from service is unjust.  Lastly, she adds that any
legal action to collect the debt is time-barred under Title 28, United
States  Code  (USC),  Section  2415.  We  are  not  persuaded  by  her
uncorroborated assertion that the debt is unjust  from  its  inception
because of the military’s unjust policy to exclude  gay  persons  from
the service.  As noted by HQ USAF/JAG, any doubt as to  the  propriety
of the  policy  was  eliminated  with  the  codification  in  1994  of
Congressional  findings  regarding  the  unsuitability  for   military
service of members who engage in homosexual conduct.   We  agree  with
the applicant, however, that any legal action to collect the  debt  is
time-barred under the applicable statute.  Nonetheless, as also  noted
by HQ USAF/JAG, lack of a judicial remedy does not mean  the  debt  is
completely unenforceable.  They can still be  offset  against  federal
income tax refunds  and  pressure  may  lawfully  be  exerted  through
dunning notices, collection agents, and notices  to  credit  reporting
bureaus.  We find these harassing tactics, however, to be offensive to
our sense of justice.  Since the government  failed  to  exercise  due
diligence in collecting the debts for a period of five or  more  years
and during that time the applicant progressed with her life under  the
belief that she had no debt because of her Academy education, it would
be extremely unfair to collect this debt at this  late,  and  untimely
date.  While not relevant to our decision, we note, too, that had  the
situation been reversed and the government owed the applicant and  she
failed to file a claim within six years, she could be  forever  barred
by law from collecting.

4.  With regard to  applicant’s  request  to  correct  her  commercial
credit records, the  Board  is  without  authority  to  correct  these
records.  However, we would suggest that once our  recommendation  has
been implemented, she  contact  the  Defense  Finance  and  Accounting
Service for guidance in this matter.
___________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that at the  time  of  her
discharge from the Air Force Academy, the Secretary of the  Air  Force
found that  under  the  particular  circumstances  of  her  case,  her
resignation was not voluntary within the meaning of Title  10,  United
States  Code,  Section  2005,  and  that  accordingly,  no  debt   was
established to reimburse  the  United  States  for  the  cost  of  her
education at the Air Force Academy.

___________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 16 June 1999, under the  provisions  of  AFI  36-
2603:

      Mr. David C. Van Gasbeck, Panel Chair
      Mr. Wayne R. Gracie, Member
      Mrs. Barbara A. Westgate, Member

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

     Exhibit A.  DD Form 149, dated 3 May 99, w/atch.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, HQ USAF/JAG, dated 15 Jun 99.




                                   DAVID C. VAN GASBECK
                                   Panel Chair



AFBCMR 99-01316




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 [APPLICANT], be corrected to show that at the time
of her discharge from the Air Force Academy, the Secretary of the Air
Force found that under the particular circumstances of her case, her
resignation was not voluntary within the meaning of Title 10, United
States Code, Section 2005, and that accordingly, no debt was
established to reimburse the United States for the cost of her
education at the Air Force Academy.






            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency