RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-01530

            COUNSEL:  EUGENE R. FIDELL

            HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS, IN ESSENCE, THAT:

His records be corrected to show  that  his  latest  active  duty  obligated
service has expired.  On page  1  of  counsel’s  brief,  it  is  asked  that
applicant’s ADSC be changed to December 12, 2000.  But, on page  15,  it  is
requested that his ADSC be changed to November 20, 1999.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Counsel contends that the gravamen  of  the  case  is  that  the  Air  Force
promised applicant one thing before he came on active duty from  the  Nevada
Air National Guard (NVANG), but delivered something else; that  then,  after
it had reneged on its original terms, purported to  secure  his  consent  to
materially harsher terms without parting with any additional  consideration;
that not only as a matter of basic contract law, but, more  importantly,  of
fundamental fairness, the Air Force is bound by  its  original  bargain  and
could not in fairness extract an additional concession after  applicant  had
performed a substantial term of the parties’ bargain; and that applicant  is
entitled to have his obligated service calculated  in  accordance  with  the
terms of the bargain they originally struck.

Counsel summarizes applicant’s military career and  states,  in  part,  that
applicant was duly recalled to active duty, assigned to  Korea,  and  served
there  uneventfully  for  the  yearlong  period  contemplated  by  his   EAD
agreement.  Not until after he had performed most of his unaccompanied  duty
in Korea, did he learn from others in the EAD program  that  the  Air  Force
was under the impression that those in the program had incurred a  five-year
ADSC in connection with the promised F-16C training.  When he inquired  with
AFPC, he was told that there would in fact be a  five-year  ADSC.   He  also
learned that he would not in fact be afforded preference  in  his  permanent
assignment following completion of F-16C training.

Disturbed by these switches in two key terms on which  he  had  relied  when
entering on active duty and performing non-flying duty in  Korea,  applicant
contacted his United States Senator in  January  1997  for  the  purpose  of
learning why his  ADSC  had  been  altered.   The  Air  Force  responded  in
February 1997 by offering him three options; he could leave active duty;  he
could press on with F-16C training followed  by  a  five-year  ADSC;  or  he
could take T-38 training and incur a three-year ADSC.

By this time, applicant had nearly  completed  performance  of  the  initial
portion of his original agreement -- a year in Korea.  Moreover, because  of
the year in Korea, he had been out of the cockpit for nearly 18 months.   As
a result, he was unmarketable for service in any ANG unit.  Thus  boxed  in,
applicant accepted the F-16C training with the five-year ADSC  and  executed
the requisite Form 63 on February 28, 1997,  shortly  before  leaving  Korea
for F-16C training at Luke AFB.  He declined the alternative  T-38  training
offer (which AFPC had not offered when he originally applied under  the  EAD
program) because he had already performed the lion’s share of  the  parties’
agreed-upon non-flying year in Korea.  The Air Force offered  no  additional
consideration as an inducement to him to accept the five-year F-16C ADSC.

Counsels complete submission is included as Exhibit  A  with  Attachments  1
through 37.

_________________________________________________________________

STATEMENT OF FACTS:

In a message of 3 May 1995, ANGRC/DPPM, announced, among other things,  that
HQ USAF recently released  implementation  instructions  for  the  voluntary
Reserve officer Recall Program to access ANG/AFRES officers into the  active
duty Air Force primarily for fighter  pilots.   This  message  also  advised
that the ADSC for selectees ordered to EAD was waived to two years plus  any
applicable ADSC incurred under AFI 36-2107. (See  Attachment  3  to  Exhibit
A).

Applicant, then a Reserve first lieutenant, applied and was notified of  his
selection for voluntary recall to EAD on 12 December 1995.   The  letter  of
notification advised him that if he accepted the offer of EAD, for which  he
would incur a two-year ADSC,  to  complete  section  I  of  a  Statement  of
Intent.  The letter also advised that he was being offered  an  Air  Liaison
Officer (ALO) position at  various  CONUS  and  overseas  locations  with  a
follow-on fighter pilot  assignment.   Applicant  signed  the  Statement  of
Intent selecting ALO to Yong San/F-15E to Elmendorf AFB,  AK  as  his  first
choices (See Attachments 3 and 4 of Exhibit A).  No reference  was  made  to
an additional ADSC for pilot training.

On 12 January 1996, the applicant was advised, among other things, that  his
assignment would be Osan AB ROK with an RNLTD of  10  April  1996.   He  was
also provided a Voluntary Reserve Officer  EAD  Program  Information  Sheet.
Section 1e stated that each officer accepting EAD will  receive  an  initial
ADSC of two years; that this commitment must be served  before  the  officer
is eligible for voluntary separation  or  retirement;  and  that  additional
ADSCs  may  be  incurred  for  training  or  other  personnel  actions  (See
Attachment 6 to Exhibit A).

In an undated  memorandum  to  the  applicant,  the  Chief,  Special  Flying
Programs Section, Directorate of Assignments, AFPC, advised  him  that  upon
completion of his assignment to the  ROK,  he  would  be  assigned  to  F-16
training at Luke AFB AZ.  He was  also  advised  that  prior  to  his  DEROS
expiration, to contact his  resource  manager  and  advise  him/her  of  his
desires for an assignment to Aviono AB; and that if  a  requirement  existed
at the base for his specific AFSC and experience level, he  would  be  given
assignment preference (Attachment 7 to Exhibit A).

On 3 September  1996,  the  applicant  advised  the  Chief,  Special  Flying
Programs,  that  he  would  like  to  change  his  F-16  Fighter  assignment
preference from Aviano AB Italy, to Spangdahlem AB, Germany.   He  indicated
that he decided that Germany would open up more opportunities for  him  than
Aviano.  He added that there had been some discussion over  there  regarding
their commitment to the USAF  after  their  “B”  course  was  complete.   He
indicated that they had confirmed and  reconfirmed  with  Major  “J”  before
they signed the contract with the Air Force that their  commitment  was  two
years, with the  opportunity  to  “re-up”  when  they  completed  the  deal.
Applicant stated further that everyone there  seems  to  think  that  a  “B”
course locked them into a three to five-year deal and asked that their  two-
year obligation be  confirmed  so  he  could  quell  the  nonbelievers  (See
Attachment 8 to Exhibit A).

On 17  September  1996,  the  applicant’s  commander  contacted  the  Chief,
Special Flying Programs, AFPC,  on  behalf  of  the  applicant  and  another
officer concerning their options after training  (Attachment  9  to  Exhibit
A).

On  September  23,  1996,  in  response  to  a  follow-up  e-mail  from  the
applicant’s commander, the Chief, Special Flying Programs advised  that  the
officers would go to  the  B-course.   He  indicated  that  follow-on  final
assignment will be dropped  during  their  course;  and  that  they  had  no
preferential status and nothing in their contract to state same  (Attachment
10 to Exhibit A).

On September 25,  the  applicant’s  commander  advised  the  Chief,  Special
Flying Programs, that there was a disconnect on the  issue  of  preferential
status.  He indicated  that  both  of  the  officers  had  letters  from  HQ
AFMPC/DPMROY3, Chief, Special Flying Programs Section,  that  states  “Prior
to your DEROS expiration contact your resource manager  and  advise  him/her
of your desires for an assignment.  If a requirement exist at the  base  for
your specific AFSC and  experience  level,  you  will  be  given  assignment
preference.” (Attachment 11 to Exhibit A).

On the same date, the applicant’s commander  was  advised  by  a  lieutenant
colonel at AFPC  that  any  contracts  or  promises,  written,  implied,  or
perceived by the pipeline  branch  regarding  follow-on  assignments  to  an
individual is inappropriate without  coordination  with  the  fighter/bomber
branch.  After reviewing e-mail traffic  between  DPAOY  and  applicant,  he
believed that a promise of preferential treatment in the assignment  process
had been made and should be honored if possible (Attachment  12  to  Exhibit
A)

On 17 December 1996, applicant e-mailed  a  major  at  AFPC/DPAOY3  advising
that he and a  fellow  officer  had  encountered  a  problem  with  Outbound
Military  Personnel  Flight.   They  were  telling  them  that  their   ADSC
following the B-course F-16 school is 60 months which was  counter  to  what
they had been told by a major  at  AFPC.   He  added  that  the  Nevada  Air
National Guard agreed to  release  him  and  his  fellow  officer  with  the
understanding that the commitment would entail a total commitment  of  three
and one-half to four years.  This included one year in Korea,  approximately
seven months of RTU (B-course) and two years after  that.   This  was  their
verbal commitment with this major and himself prior to signing up  for  this
and departing Reno, Nevada.  Applicant closed by  advising  that  they  were
hoping that this would not turn into a credibility problem between  the  Air
Force and the Air National Guard (Attachment 14 to Exhibit A).

On the same date another major at AFPC advised the  applicant  that  he  did
not have the authority to change ADSCs; and  that  he  briefed  all  members
prior to signing up that the EAD program is  two  years  unless  an  officer
incurs an additional commitment due to training.  He added that he  believed
the other major did the same (Attachment 14 to Exhibit A).

On January 17, 1997, applicant advised AFPC/DPAOY3 he would like to  do  the
five-year ADSC after RTU.  But  it  would  have  to  be  predicated  on  the
condition that it would be possible to have the option to Palace Chase  into
the Air National Guard after the two or three-year tour, depending on  where
he gets assigned.  He added that the Air Force would  have  to  give  him  a
waiver stating this.  In closing, applicant  stated  that  he  truly  wanted
nothing more than to go to Luke AFB and complete F-16 RTU,  followed  by  an
assignment in the Air Force.  But under the  new  circumstances,  he  didn’t
know if that was possible (Attachment 15 to Exhibit A).

On January 21, 1997, AFPC/DPAOY3 advised the applicant that the two  options
they had offered him in an e-mail to his fellow officer were  the  only  two
available.  He could either accept the five-year ADSC or  he  could  request
to separate (Attachment 15 to Exhibit A)

Applicant  subsequently   complained   to   his   Senator   concerning   the
miscounseling he allegedly received.  He also indicated he altered his long-
range plans to enter AD service.  If he had  known  he  would  have  had  to
perform six and one-half to seven years of service (three  years  more  than
he had planned), he would have considered other options.  He indicated  that
he was one month from finishing his one year commitment  in  Korea  and  was
unable to get any results from the USAF (Attachment 18 to Exhibit A).

On February 14,  1997,  in  a  memorandum  for  whom  it  may  concern,  the
applicant’s  former  ANG  commander  provides  his  understanding   of   the
applicant and his fellow officer’s request to leave the ANG for  service  in
the active Air Force.   He  stated  that  the  Nevada  ANG,  one  year  ago,
converted from the RF-4 to the C-130 mission.  At that same  time  the  USAF
was interested in having junior grade Reserve Pilots, qualified  in  fighter
type aircraft, return to the active Air Force.   Upon  inquiring  into  this
program, applicant and his fellow officer found that they  were  competitive
for selection, applied, and were in fact selected.   He  counseled  them  on
leaving the  ANG,  entering  the  active  component,  potential  for  career
progression and their ability to return to the ANG.  They  elected  to  join
the active Air Force.   He  is  aware  that  they  believed  that  in  being
accepted to the program, they would be required to accept a one year  remote
assignment followed then by check out in  the  F-16  with  another  two-year
commitment.  He now  understands  that  there  is,  perhaps,  more  to  this
commitment than they originally believed (Attachment 20 to Exhibit A).

In an e-mail of February 26,  1997,  AFPC  advised  the  applicant  that  in
response to his  congressional  inquiry,  he  had  now  been  offered  three
options.  Specifically, allowed to  separate  from  the  USAF  active  duty,
offered a T-38 (various locations) three-year ADSC upon  completion  of  PIT
or remain on assignment to the  F-16,  five-year  ADSC  upon  completion  of
training (Attachment 22 to Exhibit A).

On February  28,  1997,  applicant  signed  an  Officer/Airman  Active  Duty
Service Commitment (ADSC) Counseling Statement, AF Form 63,  agreeing  to  a
five-year ADSC upon completion of F16COBOOP1 under the provisions  of  Table
1.5., Rule 1, AFI 36-2107.

On August 15, 1999, applicant complained to the Secretary of the  Air  Force
(Attachment 24  to  Exhibit  A)  which  resulted  in  a  response  from  the
Executive Director, AFPC.  That official advised him that he was  sorry  for
any misunderstanding concerning subsequent ADSC-incurring  events  after  he
was accessed onto active duty through the EAD  program;  however,  after  he
voiced his concern in 1996, the Air Force was more  than  fair  in  offering
him  three  options.   In  the  end,  he  elected  to  accept  F-16  initial
qualification training and the associated five-year commitment.  He  advised
the applicant that he was free to pursue PALACE CHASE and he  applauded  his
continued desire to support the total force.  But, he must inform  him  that
release to PALACE CHASE is done on a case-by-case basis,  based  on  manning
and the needs of the Air Force at the time of application (Attachment 25  to
Exhibit A).

On November 4, 1999, applicant responded to the  Executive  Director,  AFPC,
by stating, among other things, that  the  misunderstanding  came  from  the
events that led up to having to choose one  of  the  three  options.   There
were several reasons for this.  First, AFPC never was  straightforward  with
him from the beginning of his EAD program.  Second, after spending one  year
in Korea and being out of the cockpit for a year and a half, his ability  to
get back on with an Air National Guard Unit  had  been  profoundly  reduced.
Third, if he had known his commitment  to  the  USAF  would  be  seven  plus
years, he would have never signed on.  To put it bluntly, AFPC put him in  a
very difficult position.  Applicant advised the Executive  Director  of  all
the circumstances that transpired in his case and indicated that  after  his
tour in Korea, he was severely limited as to  his  options.  AFPC  gave  him
approximately one month to make a decision to get out or  stay  in  the  Air
Force.  He had also been out of the cockpit for a year and a  half  at  this
point, and that made it very difficult if not impossible to get on  with  an
ANG unit.  Had he elected not to pursue  the  EAD  from  the  beginning,  he
would have found it much easier to find an ANG unit to sign  on  with  still
being current in an aircraft.  Instead, he found  himself  in  a  precarious
position where he didn’t have any choice but to  accept  F-16  IQT  and  the
associated five-year commitment (Attachment 26 to Exhibit A).

On November 16, 1999,  applicant  wrote  the  Secretary  of  the  Air  Force
reiterating the circumstances that led to his acceptance  of  the  F-16  IQT
and the five-year ADSC (Attachment 27 to Exhibit A).

Responding for the Secretary of the Air Force in a  letter,  dated  December
7, 1999, the Executive Director, AFPC, advised the  applicant  that  he  was
left with the impression that he was looking for him to give him  assurances
his PALACE CHASE package would be viewed favorably.  He was  sorry,  but  he
could not afford him any assurances of a PALACE  CHASE  release  (Attachment
29 to Exhibit A).

Applicant’s  PALACE  CHASE  application  was  subsequently  denied  by   the
Secretary of the Air Force Personnel Council (SAFPC) as  not  being  in  the
best interest of the Air Force at this time.

Applicant has outstanding ADSCs of 2 August 2001,  26  August  200l  and  20
November 2002.  The 20 November 2002 ADSC is the five-year ADSC he  incurred
for completion of the F-16 Formal Training Course on 21  November 1997.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPR states, in part, that  they  do  not  support  the  applicant’s
request to remove an ADSC he voluntarily agreed to accept and  fulfill.   On
17 December 1996, AFPC advised the applicant (while assigned to Korea)  that
his follow-on F-16  assignment’s  IQT  would  be  60  months.   Despite  the
applicant’s displeasure with the prospect of a  five-year  ADSC,  he  turned
down an alternate training assignment with a lesser ADSC and chose the  F-16
training option.  The AF Form 63 he signed on 28 February 1997 confirms  his
acceptance of the five-year ADSC he incurred upon  completion  of  training.
Given these facts, they cannot detect any measure of harm to  the  applicant
serving his ADSC (Exhibit C).

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel states, in part that in addition to  the  evidence  they
have adduced, it is highly probative that AFPC has  failed  to  present  any
statement from any officer who was involved  in  the  original  interactions
with applicant.  Those officers’ names appear in the record and nothing  has
prevented the Air Force  from  contacting  them.   The  failure  to  produce
anything from them gives rise to  the  traditional  adverse  inference  that
their evidence would support applicant’s version of events.

AFPC’s claim seems to be that applicant  incurred  a  seven-year  ADSC  upon
entry into the EAD program, but that even if  he  did  not,  he  nonetheless
agreed to  a  five-year  ADSC  in  1997.   Neither  prong  of  this  set  of
alternative theories withstands scrutiny.   On  the  first  prong,  the  Air
Force issued a message which is less than a model of clarity (Attachment  3)
(ADSC is waived to two years plus any applicable ADSC incurred under AFI 36-
2107).  What does it mean  to  waive  something  to  a  stated  period?   It
followed  this  up  with  a  letter,  which  referred  to  a  two-year  ADSC
(Attachment 4).   Coming  after  the  message,  as  it  did,  applicant  was
entitled to understand that  he  would  have  a  two-year  AFSC.   The  same
message came through from oral communications and this was  also  the  basis
on which the NVANG approved his release.  The Air  Force’s  later  offer  to
release him from any further ADSC, Attachments 16-17, 22,  corroborates  his
claim.  If the Air Force had been as straightforward about the ADSC as  AFPC
now maintains, that offer would obviously never have been made (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.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of a probable error or an  injustice  warranting  removal  of  the
applicant’s five-year F-16 Initial Qualification Training (IQT)  ADSC.   The
evidence is clear  and  convincing  that  the  applicant  was  affirmatively
mislead  into  applying  for  recall  to  extended  active  duty  under  the
assumption that he would only incur a two-year  ADSC.   Notwithstanding  the
miscounseling by responsible personnel, the Air Force recommends  denial  of
the request to remove the five-year ADSC because the error was detected  and
the applicant was given the option  of  immediate  separation  or  accepting
another  flying  training  program  with  a  lessor   ADSC.    However,   he
voluntarily chose the F-16 IQT and signed the Officer  Active  Duty  Service
Commitment Statement, AF Form 63, acknowledging acceptance of the  five-year
associated ADSC.   Since  the  applicant  was  offered  an  alternative  and
voluntarily selected to incur the five-year F-16 IQT,  at  first  blush,  it
would appear that no basis exists to warrant deleting this  commitment.   On
the other hand,  the  applicant  has  steadfastly  stated  that  there  were
several reasons that led up to  him  having  to  choose  one  of  the  three
options.  First, AFPC never was straightforward with him from the  beginning
of his EAD program.  Second, after spending one year in Korea and being  out
of the cockpit for a year and a half, his ability to get  back  on  with  an
ANG  unit  had  been  profoundly  reduced.   Third,  if  he  had  known  his
commitment to the USAF would be  seven  plus  years,  he  would  have  never
signed on.  To put it bluntly, AFPC put him in a  very  difficult  position.
We agree.  Since the applicant was erroneously induced to apply  for  recall
to active duty under the assumption that  he  would  only  be  obligated  to
serve for two years and has served almost five years, equity  dictates  that
the five year F-16 IQT ADSC  be  deleted.   In  arriving  at  our  decision,
however,  we  are  aware  that  the  applicant’s  records   still   reflects
outstanding ADSCs of 2 August 2001 and 26 August  2001.   Thus,  whether  or
not he is successful in  immediately  separating,  appears  to  still  be  a
discretionary call by competent authority.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that his five-year  Active  Duty  Service
Commitment (ADSC) incurred as a result of his  completion  of  F-16  Initial
Qualification Training (IQT) be declared void.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 8 November 2000, under the provisions of AFI 36-2603:

            Mr. Benedict A. Kausal IV, Chair
            Mr. Charles E. Bennett, Member
            Mr. Henry Romo, Jr., Member

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

     Exhibit A.  DD Form 149, undated, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPR, dated 18 Aug 00, w/atchs.
     Exhibit D.  Letter, AFBCMR, dated 25 Aug 00.
     Exhibit E.  Letter, Counsel, dated 30 Aug 00.




                                   CHARLES E. BENNETT
                            ACTING PANEL CHAIR
                         DEPARTMENT OF THE AIR FORCE
                              WASHINGTON, D. C.


                                                                 NOV 20 2000


Office of the Assistant Secretary

AFBCMR 00-01530

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 his five-year  Active  Duty  Service
Commitment (ADSC) incurred as a result of his  completion  of  F-16  Initial
Qualification Training (IQT) be, and hereby is, declared void.





      JOE E. LINEBERGER
      Director
      Air Force Review Boards Agency