RECORD OF PROCEEDINGS


             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS



IN THE MATTER OF:      DOCKET NUMBER:  00-01406

            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His Active Duty Service  Commitment  (ADSC)  for  Excess  Leave  Legal
Education Program (ELP) be corrected from 21  November  2002  to    31
July 2001.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He was mislead by the ambiguous language in the contract he signed for
the ELP, which did not state that the ADSC for ELP was  to  be  served
consecutively to any pre-existing ADSC.

Applicant’s complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving in the Regular  Air  Force  in  the
grade of major (0-4), with a date of rank 1 February 2000.

According to documentation submitted by  the  applicant,  on        27
August 1993 he signed an AF  Form  63,  Officer  Active  Duty  Service
Commitment (ADSC)  Counseling  Statement,  in  which  he  acknowledged
incurring an ADSC of 2 years for tution assistance for completion of a
graduate course that ended in December 1993,  with  a  projected  ADSC
date of 15 December 1995.

He signed an ELP agreement on  19  January  1994  which  indicated  in
paragraph 1.h.(3) that  he  would  “serve  on  active  duty  following
completion of training for a period of four years in addition  to  any
previously existing active duty service commitment.”

ADSCs for officer promotions were eliminated on 1 June  2000  but  the
new ADSC rules were not applied retroactively.

_________________________________________________________________




AIR FORCE EVALUATION:

The Deputy Chief, Professional  Development  Division  Office  of  the
Judge Advocate General, HQ  USAF/JAX,  reviewed  the  application  and
stated that the applicant is obligated by regulation to  serve  active
duty service commitments that extended his obligation to  serve  until
21  November  2002.   The  language  about  which  the  applicant  now
complains to be ambiguous appears plain on its face.   Clearly  stated
in the ELP agreement is the regulatory rule that the ADSC incurred for
ELP would be in addition to those already  present  on  the  officer’s
record.  The plain meaning is that  the  additional  commitment  would
have to be served consecutive to the existing ADSCs not  concurrently.
Were the opposite the case, there would be no need for  such  language
in  the  agreement,  the  language  would  have  no  consequence,  and
therefore the language would thus be  surplusage.   An  interpretation
that renders language of an agreement void  or  surplusage  is  to  be
avoided under the general rules of contract construction,  and  should
be avoided when analyzing this agreement as well.

They believe the applicant’s package presents strong evidence  of  the
events that transpired at the time of his signing the  ELP  agreement.
He admits that he was under the impression that he had  little  or  no
existing active duty service commitments when he was applying for  the
ELP program.  He signed the AF Form 63 related to  tuition  assistance
believing he was accepting a six-month ADSC.  As a  consequence,  then
the applicant likely gave little consideration to the possibility that
his ELP ADSC would be served consecutively with other ADSCs,  and  the
applicant likely gave little attention to  the  language  so  stating.
Thus, it appears that the misunderstanding then the applicant may have
experienced over his active duty service commitments was  due  to  his
inattention to his current ADSC obligations, not  a  misinterpretation
of the  Excess  Leave  Program  agreement  he  signed.   There  is  no
ambiguity in either the AF Form 63 or  the  1994  ELP  agreement  that
would justify reducing that obligation.

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

The  Superintendent,   Active   Duty   Service   Commitments   Branch,
AFPC/DPSFO, reviewed the application  pertaining  to  the  applicant’s
promotion ADSC and recommended disapproval.  Air Force Instruction 36-
2107, ADSCs and Specified Period of Time Contracts, dated 1  September
1998, (the version in effect at the time member was  promoted),  Table
1.12, Rule, imposed a two-year ADSC for promotion to major.  Air Force
Instruction 36-2107 was revised and implemented on 1  June  2000;  the
new version did not establish  an  ADSC  for  any  officer  promotion.
Member states his belief that “promotion ADSCs  were  eliminated”  was
“bolstered by a personnel RIP” he received in May that  did  not  show
the promotion ADSC. Member did not include a copy of this RIP with his
amended request as proof of this allegation.
Regardless, the fact that such a RIP  did  not  reflect  an  ADSC  for
promotion does not, in and of itself, negate the incurrence of such an
ADSC.  Promotion ADSCs prior to 1 June 2000 were automatically updated
by the Personnel Data System (PDS)  immediately  after  the  effective
date of promotion and there could  be  many  reasons  why  the  system
update might not have reflected in the PDS at the time member received
his RIP  in  May.   However,  member’s  promotion  ADSC  is  currently
reflected in member’s record.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on
15 September 2000 for review and response.  The applicant states  that
the Deputy Chief of USAF/JAX was his  direct  supervisor  from  August
1997 until July 1999, and the Deputy  Chief  is  the  person  that  he
referred to in his initial letter.  The applicant  questioned  whether
it was appropriate for the Deputy Chief to author the opinion  in  his
case given the Deputy Chief was intimately  involved  in  the  matter.
The applicant  does  not  believe  the  Deputy  Chief  could  give  an
objective opinion in this case given his personal involvement.  At the
very least, this creates the appearance of a conflict of interest.

The advisory opinion of JAX focused solely on the issue  of  ambiguity
in the contract, and made some rather bald assumptions about  what  he
was thinking or what actually occurred  at  the  time  he  signed  the
contracts.  The opinion completely ignored the issue of fairness  that
is the heart of his request for relief.  However, he believes that the
question of law on ambiguity should be clearly resolved in his  favor,
as should the question  of  the  ultimate  fairness  of  the  contract
provision.

The applicant responds to the review done by AFPC/DPSFO, stating  that
DPSFO merely restates what he already  said  in  his  request.   DPSFO
added nothing to the mix except to cast an aspersion on his  integrity
by stating that the he did not include any evidence that he received a
RIP in May 2000 that did not include the promotion ADSC.  This implies
that he made this up, which is false and he resents  the  implication.
DPSFO merely points out that when he did receive a RIP in August  that
had the updated promotion ADSC on it, he immediately  telephoned  AFPC
and requested to amend his BCMR package.  If this promotion  ADSC  had
been in his records in May, he would have included this matter in  his
original application.  DPSFO  seems  to  assume  that  all  ADSCs  are
updated correctly, but he points out that they would not have  changed
the system recently if that were true.





DPSFO  did  not  attempt  to  address  the  fairness  issue  at   all.
Accordingly, it remains uncontested that to require  some  members  of
the same promotion group to incur a two-year commitment  while  others
incur none is unfair.  It is arbitrary and capricious to select a pin-
on  date  to  determine  who  is  burdened  and  who  is   not.    The
Administrative Procedures Act (5 U.S.C. Art 709)  prohibits  arbitrary
and capricious administrative actions by Federal government  agencies.


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  a  change  in
his Active Duty Service Commitment (ADSC)  date  incurred  for  Excess
Leave Legal Education Program (ELP) and  promotion  to  the  grade  of
major.  After a thorough review of the evidence of record,  the  Board
finds that the applicant has not provided sufficient evidence that  he
was mislead by the language in the contract he signed for  ELP.   With
respect to the ADSC he incurred for promotion, we note that  promotion
ADSCs  were  eliminated  on  1  June  2000  and   were   not   applied
retroactively.   We  find  no  evidence  the  applicant  was   treated
differently than other similarly situated individuals.  We took notice
of the applicant's complete submission in judging the  merits  of  the
case; however, we agree with the opinion and recommendation of the Air
Force and adopt their rationale as the basis for our  conclusion  that
the applicant has not been  the  victim  of  an  error  or  injustice.
Therefore, 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 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 6 December 2000, under the provisions of AFI  36-
2603:


                 Mr. Teddy L. Houston, Panel Chair
                 Mr. Lawrence M. Groner, Member
                 Ms. Diana Arnold, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 20 May 2000.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, USAF/JAX, dated 7 July 2000.
      Exhibit D. Letter, AFPC/DPSFO, dated 4 September 2000
      Exhibit E. Letter, SAF/MIBR, dated 15 September 2000.
      Exhibit F. Applicant's response, dated 29 September 2000.






      TEDDY L. HOUSTON
      Panel Chair