RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  99-01323
            Index Number:  128.10

            COUNSEL:  Kathleen A. Kenealy

            HEARING DESIRED:  NO
_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    The alleged debt for educational expenses incurred at the United
States Air Force Academy (USAFA) be removed from her records.

2.    Her commercial  credit  records  be  corrected  to  reflect  the
correction of this debt, or sufficient documentation for her  to  have
such records corrected.
_________________________________________________________________

APPLICANT CONTENDS THAT:

The alleged debt is erroneous and unjust because it  was  forgiven  in
1992 by the Secretary of the Air Force (SAF).  She believes  the  debt
is unjust from its inception  because  of  the  military’s  policy  to
exclude gay persons from service is unjust.  In addition, she believed
that the then-existing policy excluding gay persons and the  Academy’s
emphasis on integrity and truth telling left  her  no  alternative  to
submitting her resignation from the Air Force Academy, on  which  this
debt is based.  Any legal action to collect the  debt  is  time-barred
under Title 28, United States Code (USC), Section 2415.

Applicant’s complete submission is attached at Exhibit A.
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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.   Accordingly,  there  is  no
need to recite these facts in this Record of Proceedings.
_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, General Law Division, Office of The Judge Advocate General,
HQ USAF/JAG, reviewed the application and indicates that the debt  was
lawfully established at the time  of  the  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 SAF, either  serve  on  active
duty in an enlisted status for a specified  period  or  reimburse  the
United States for the cost of education.  Form O-205, Part III.   This
sort of written agreement is expressly contemplated by Title 10,  USC,
Section 2005.  Because the applicant made homosexual  statements,  she
is disqualified for enlisted service under the  policy  in  effect  at
that time (and under current policy) and therefore  had  to  reimburse
the U.S. rather than serve on active duty.  In this regard, they  note
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  it  judicially  unenforceable,  as  the
applicant correctly points out.  The debt is subject to 28 USC Section
2415’s six-year period of limitations, so the U.S. lost its ability to
bring a civil suit to enforce the debt in  September  1997.   Lack  of
judicial remedy does not mean the debt  is  completely  unenforceable,
however.  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  this  debt  using  debt  collection  and  credit
reporting tactics constitutes an injustice.   Accordingly,  the  Board
may correct the applicant’s record by directing  the  removal  of  any
documents establishing the  debt  (or,  if  removal  of  a  particular
document in its entirely is inappropriate, deletion of  such  portions
of the document that establishes the debt).

A complete copy of the evaluation is attached at Exhibit C.
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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.  At  the
onset, the applicant contends, in essence, that the Academy’s emphasis
on integrity and truth telling left her no  honorable  alternative  to
disclosing  her  sexual  orientation,  which   made   her   separation
inevitable.  We note that this  case  arose  under  the  “old  policy”
(before enactment of 10 USC 654) under which sexual orientation  alone
was a bar to service.  We might reach a  different  result  under  the
current policy under which the government is  precluded  from  asking,
and members are not obliged  to  disclose,  sexual  orientation.   But
under the law and policy applicable to this case, the applicant  could
have believed she was duty-bound to disclose her homosexuality.   This
rendered her separation inevitable, if not by her resignation then  by
other means.  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 erroneous and  unjust
because it was forgiven in 1992 by the Secretary  of  the  Air  Force.
She also believes the debt is unjust from its inception because of the
military’s policy to exclude gay persons from service is unjust.   She
adds that any legal action to collect the debt  is  time-barred  under
Title  28,  United  States   Code   (USC),   Section   2415.    Absent
corroborative evidence,  however,  we  do  not  find  the  applicant’s
assertion that  her  debt  had  previously  been  waived  sufficiently
compelling to conclude that her request has merit.  Moreover,  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.  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 Fore 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/atchs.
      Exhibit B. Available Master Personnel Records.
      Exhibit C. Letter, AF/JAG, dated 15 Jun 99.




                                   DAVID C. VAN GASBECK
                                   Panel Chair