RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-00849
            INDEX CODE:  128.00

            COUNSEL:  PETER H. WARD

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

She be relieved from claimed-due debt or  that  the  claimed-due  amount  be
reduced to the original  amount,  as  of  1993  (without  interest  for  the
intervening years), to reflect that she did not intentionally refuse to  pay
the amount due, but rather, was unaware that  the  Air  Force  still  sought
collection.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Counsel for the applicant indicates that applicant asks the  Board  to  find
that her record should be corrected to reflect that she owes no debt to  the
Air Force for the following reasons:

      1. The Air Force is stopped  from  collecting  any  claimed  due  debt
based upon its contained  payment  of  scholarship  monies  and  failure  to
promptly notify her of  her  alleged  failure  to  meet  standards,  despite
notice of her medical condition for more than six years.

      2. She has met the applicable standards at the time  of  execution  of
her agreement with the Air Force and that the Air Force  did  not  have  the
unilateral right to amend those applicable standards after execution.

      3. The Air Force wrongfully discharged her under  the  worldwide  duty
standard after she had properly been assigned,  and  qualified  for,  state-
side duty.

Applicant’s complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 28 March 1985, applicant  was  appointed  a  second  lieutenant,  Medical
Service Corp (MSC).

Applicant  was  an  Armed  Forces  Health  Professions  Scholarship  Program
(AFHPSP) student from 21 August 1985 through 19 May 1989.

On 18 January 1994, applicant was found medically disqualified  (history  of
endometriosis) from entering active duty.

The  Secretary  of  the  Air  Force  directed  the  applicant  be  honorably
discharged and determined she was required to reimburse  the  United  States
Government for the funds expended on her education.   Indebtedness  incurred
by applicant totaled $16,771.08.

She was discharged on 16 August 1994, under the  provisions  of  AFR  35-41,
and she received an honorable discharge.

On 3 February 1998, applicant was notified of the debt incurred.

On 30 November 2000, the AFBCMR was  advised  by  the  Defense  Finance  and
Accounting Services (DFAS) that the  applicant’s  account  is  closed.   The
statute of limitations for collecting the debt  expired  and  the  debt  was
written off in November 2000.  The applicant never made any payments on  her
debt.  Should the applicant repay the debt, DFAS  will  waive  the  interest
and penalty charges and the applicant’s credit report  will  be  amended  to
show a paid obligation.  There is  no  indication  that  the  applicant  was
notified of her debt being closed and  she  will  not  receive  any  further
correspondence and billing statements from DFAS.

_________________________________________________________________

AIR FORCE EVALUATION:

The  Chief,  Physician  Education  Branch,  HQ  AFPC/DPAME,  reviewed   this
application  and  states  that  applicant  signed  her  Health   Professions
Scholarship Program Contract (HPSP), thereby agreeing to the  terms  of  the
contract.  Paragraph j of her contract states, “Should I  become  unable  to
commence the period of active duty specified in  this  contract  because  of
physical disqualification, I agree to reimburse the  United  States  in  one
lump sum for the total cost of advanced education as specified in 10  U.S.C.
2005,. . .”

Applicant states that she was never told that  any  process  for  correcting
her record by application  to  this  board  existed.   Paragraph  3  of  her
contract states, “Should any dispute arise over the terms or  conditions  of
this contract, or if the student hereafter  seeks  discharge  from  military
service or release from his or her active duty  service  commitment  (ADSC),
the student acknowledges  and  agrees  to  exhaust,  his  or  her  available
administrative remedies prior to seeking judicial  reviews.   Exhaustion  of
the AFBCMR remedy shall be mandatory in every case except  with  respect  to
applications for conscientious objector.”

She alleges her initial attorney had settled the matter and  the  Department
was no longer claiming any monies were due.  Paragraph  1  of  her  contract
states, “Only the Secretary of the Air Force or designee may excuse me  from
my obligation to serve on active duty  for  the  period  specified  in  this
contract.”   Since  she  received  the  separation  and  recoupment   action
directed by  the  Secretary  of  the  Air  Force,  and  no  further  written
documentation was provided to her relieving her of  the  indebtedness,  this
matter could not have been  settled  without  Secretary  of  the  Air  Force
approval.

She alleges that personnel from Defense Finance  Accounting  Service  (DFAS)
informed her for the first time that the AFBCMR was the  avenue  to  address
her debt collection.  Again, the AFBCMR is clearly addressed in  her  AFHPSP
contract.

She states she was informed for the first time in late  1993  she  might  be
unfit for duty.  AFHPSP recipients receive two physical  examinations.   The
first is a commissioning physical when they enter  into  the  program.   Her
physical should have been in 1985.  The second physical  exam  is  scheduled
in the fall of their  last  year  before  entering  active  duty.   She  was
scheduled to enter active duty in the summer of 1994, so her entered  active
duty (EAD) physical was conducted in November 1993.  She was  evaluated  for
her medical condition and determined  to  be  medically  disqualified.   All
recipients in the AFHPSP program follow the  same  timelines  regarding  the
physical examinations.

She also states that two  physicians  medically  qualified  her  for  active
duty.  Staff physicians conducting the examinations cannot make  a  extended
active duty determination.  This determination was made  by  HQ  AFMPC/DPMMU
on 18 January 1994 and she was subsequently discharged on 16 August 1994.

The implication that the Air Force medically disqualified applicant  due  to
her daughter’s illness should also be addressed.  This  was  a  coincidental
act.  Her EAD physical was simultaneous with processing her  for  assignment
to Wright-Patterson AFB.  Medical disqualification for endometriosis is  Air
Force policy.

Applicant’s claim that the recoupment was unjust does not  warrant  approval
of her request.  The rules – and in applicant’s  case,  knowledge  of  these
rules in effect at the time an individual signs  their  contract  should  be
binding on both the Air Force and the individual.   Since  applicant  signed
her contract, thereby agreeing with the terms of the contract,  her  request
has no merit.  Therefore, they recommend denial of applicant’s request.

A complete copy of the Air Force evaluation, with attachments,  is  attached
at Exhibit C.
_________________________________________________________________



APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel for the applicant reviewed the advisory opinion and states  that  if
and when the service admitted her to the HPSP neither she  nor  the  service
considered endometriosis disqualifying and  subsequently  the  service  knew
that she had endometriosis and still later the service  adopted  regulations
newly  disqualifying  (and  effectively  compelling  repayment   of   monies
advanced) HPSP participants with endometriosis, the service had  a  duty  to
immediately notify her of their newly  imposed  disqualification  to  enable
her  to  mitigate  her  damages.   Alternately,  if  the  service   by   new
regulations expected to disqualify program participants with  endometriosis,
but failed to immediately notice her and now still  denies  any  such  duty,
such delay and  inaction  creates  a  condition  of  estoppel  against  that
service now seeking reimbursement from applicant.

The advisory indicates that “. . .AFHPSP  recipients  receive  two  physical
examinations. .  .”   The  apparent  intention  of  such  language,  perhaps
correct in some general or universal situation, is to imply that the  United
States Air Force could only know  of  applicant’s  physical  condition  upon
entry into the HPSP program [“Her physical should have been  in  1985”]  and
again shortly before scheduled entry on active duty [“. . .scheduled in  the
fall of their last year before entering active duty. . .so her EAD  physical
was conducted in November 1993.”].

The implication of an eight year period during which the service could  only
presume that she was fit, if  true,  would  go  to  essential  and  material
issues of inequity, unfairness and estoppel claimed by applicant.

It is respectfully  observed  that  in  the  applicant’s  circumstances  and
record, 1985 and 1993 were not the only times medical notice was  given  the
service.  It was  a  requirement  of  the  service  that  applicant,  on  an
academic year basis, fill out and provide the service status forms -  -  one
of which required discussion  of  changed  medical  circumstances.   In  the
report for the 1986 -  1987  academic  year  period,  applicant  timely  and
accurately reported to  the  service  her  1986  diagnostic  laproscopy  for
endometriosis.   The  records  reflect  the  Air  Force  physical  given  to
applicant at Eglin AFB in 1989 shows endometriosis.  The circumstances  were
that HPSP participants doing deferred residency were required to  submit  to
a separation physical.  Accordingly, between completion  of  medical  school
and her Duke residency, the service conducted – hence knew  the  results  of
her physical in 1989 and applicant’s endometriosis.

Thus, by reports or physical  examination  required  by  the  service,  with
results known to the service, the service in 1987 and again in 1989 knew  of
applicant’s endometriosis and further knew of her residency at Duke and  can
be expected reasonably to have known the costs she was  incurring  were  the
service subsequently to disqualify her from  the  program  by  changing  her
health obligations under the contract.

Applicant's complete response is attached at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Associate Dean, Civilian Institution Programs, Air  Force  Institute  of
Technology, AFIT/CIM,  reviewed  this  application  and  states  that  after
graduating from medical school, the applicant was deferred from active  duty
to attend a civilian residency program.   Management  of  her  training  was
transferred  to  AFPC/DPAME  upon  entering  the  civilian  residency.    In
accordance with AFIT/CIMJ policies for maintaining records  the  applicant’s
training record  was  destroyed  one  year  after  graduating  from  medical
school.  Therefore, the applicant’s allegation that  she  notified  the  Air
Force of her medical condition in 1987 cannot  be  verified.   According  to
information  provided  by   the   applicant’s   examining   physician,   the
applicant’s  endometriosis  was  diagnosed  in  1985,  not  1987.   If  this
diagnosis was made before the applicant was eligible  to  receive  AFHPS/FAP
benefits and if the applicant had notified the Air Force of  her  change  in
medical condition, the applicant would have been removed  from  the  program
before receiving any benefits and  would  not  have  incurred  any  debt  to
repay.  If the applicant was already receiving AFHPS/FAP benefits  when  she
received treatment for endometriosis, in accordance with her  contract,  she
was required to report the change in her medical condition as  soon  as  she
received care for, or was diagnosed  as  having  endometriosis.   Therefore,
the amount of debt  that  should  be  considered  for  waiver  is  the  debt
incurred after the notification, 1987 as stated by  the  applicant,  to  the
Air Force of the disqualifying  condition.   Since  the  applicant  did  not
submit any copies with the BCMR request of documents she  sent  to  the  Air
Force notifying the Air Force  of  her  change  in  medical  condition,  and
AFIT/CIMJ has no training records on file, notification by the applicant  to
the Air Force of her change in medical condition cannot be verified.   Based
on review of applicant’s  request  and  supporting  documentation  provided,
they  recommend  disapproval  of  BCMR  request.   In  accordance  with  the
applicant’s contract, she is required to reimburse the  government  for  all
educational expenses paid by the government for her  education  if  she  did
not  complete  the  active  duty  service  commitment  incurred  under   the
AFHPS/FAP contract.   The  appropriate  authority  did  find  the  applicant
medically unqualified and the applicant was separated and directed to  repay
the cost of education as specified in the AFHPS/FAP contract signed  by  the
applicant.

A complete copy of the Air Force evaluation is attached at Exhibit F.

The Chief,  Physical  Standards,  Directorate  of  Medical  Svs  &  Tng,  HQ
AETC/SGPS, also reviewed  this  application  and  states  that  the  initial
examination of 17 December 1984 was reviewed  and  certified  qualified  for
commission  by  their  office  on  25  February   1985.    No   mention   of
endometriosis was noted, although there was a note on vaginitis,  which  was
treated and resolved.  The 2 March  1989,  examination  was  never  sent  to
their office for review however, it does note a diagnosis  of  endometriosis
and treatment.  This appears to be the first mention of  the  condition  and
had this examination been forwarded to their office for review or  had  they
been notified through administrative  channels,  the  applicant  would  have
been medically disqualified for commission  and  continuation  in  the  HPSP
program.  According to the  terms  of  the  HPSP  contract,  any  change  in
medical status should be reported through medical channels to  their  office
for review.  They have  no  record  of  this  ever  being  done.   Prior  to
completion of training and entry on to  active  duty,  a  final  examination
must be completed to ensure qualification for commission still  exists.   On
this examination, dated 4 November 1993, the OB/GYN consult reports she  had
the diagnosis of endometriosis in 1985, which  was  the  same  year  of  her
initial certification and entry into the program.  She was  treated  for  it
that same year, again in 1986 and treatment was  recommended  again  in  the
1993 consult.  Again, they have no record of this being  reported  to  their
office for review and/or certification.  The physical  standards  references
used during this time  period  all  note  that  endometriosis  or  confirmed
history thereof is disqualifying for military duty.   They  do  not  control
the administrative process of  the  HPSP  applicants,  but  from  a  medical
standpoint this  individual  would  have  been  medically  disqualified  for
commission had all the medical information at the time of  diagnosis  and/or
treatment been forwarded to their office for review, probably in  1985  with
the first diagnosis and treatment.

A complete copy of the Air Force evaluation, with attachments,  is  attached
at Exhibit G.

The Staff Judge Advocate, HQ AFPC/JA, reviewed this application  and  states
that  although  HQ  AETC/SGPS  never   was   made   aware   of   applicant’s
disqualifying condition in 1989, the  Air  Force,  as  an  institution,  was
certainly aware of her condition.  So, arguably, both applicant and the  Air
Force breached the contract in March 1989 by their mutual  inaction.   Based
on the partial  performance  by  both  parties  up  to  2  March  1989,  the
appropriate remedy, as  explained  above,  would  be  recoupment  for  those
monies spent for her medical school through  2  March  1989.   In  addition,
even if the Air Force had been the sole party to  breach  the  agreement  by
not  promptly  discharging  applicant  once  it  learned  of   her   medical
condition, the appropriate remedy would remain the same.  In  no  way  would
applicant be entitled to a complete discharge of her  entire  HPSP  debt  by
virtue of  the  Air  Force’s  actions.   They  were  also  asked  to  review
applicant’s counsel’s statement that the circumstances  of  this  case  give
the appearance of a possible ulterior motive in the Air Force’s finding  his
client unfit for worldwide duty.  Those  circumstances  being  that  shortly
before deciding that applicant had a disqualifying  medical  condition,  the
Air Force had learned  that  applicant’s  daughter  had  a  serious  medical
condition that required expensive medical  treatment.   Without  proof,  and
the file contains none, such an accusation is without merit, as  the  timing
was simply coincidental.  Applicant’s EAD  physical  in  November  1993  was
conducted in accordance with regular procedures  as  she  was  scheduled  to
enter active duty in the summer of 1994, and  medical  disqualification  for
endometriosis is Air Force policy.   Applicant’s  request  for  relief  from
recoupment should only be granted for that period of time from 2 March  1989
until her graduation in May 1989.

A complete copy of the Air Force evaluation, with attachments,  is  attached
at Exhibit H.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel for the applicant reviewed the  advisory  opinions  and  provided  a
response, with attachment, which is attached at Exhibit J.

_________________________________________________________________

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.    Insufficient relevant evidence has been presented to  demonstrate  the
existence of probable error or injustice.  After reviewing the  evidence  of
record, the Board is not persuaded that the applicant has  been  the  victim
of an error or injustice.  The applicant’s contract provided that she  would
reimburse the Air Force if, because of physical  disqualification,  she  was
unable  to  commence  her  period  of  active  duty.   She   suffered   from
endometriosis, and medical  disqualification  for  that  condition  was  Air
Force policy during the period in question.  In 1994 she  was  found  to  be
medically disqualified and was honorably discharged.  The Secretary  of  the
Air Force directed that she reimburse the Air Force for the  funds  expended
for her education.  We do not see any basis to conclude that there has  been
an error.  Further, we cannot conclude that there  has  been  an  injustice.
There is insufficient evidence  that  the  Air  Force  was  advised  of  the
applicant’s  condition  earlier  than  March   1989,   two   months   before
graduation.  (The subsequent time  from  1989  to  1993  was  covered  by  a
deferment for  residency  undertaken  at  her  own  expense.)   Neither  the
applicant nor the Air  Force  has  any  record  of  the  applicant’s  annual
scholarship filings, and the information sworn to have been in it cannot  be
verified.  The May 24, 2000, advisory from HQ AFPC/JA persuades us that  the
actions taken by the  Air  Force  in  this  case  were  in  accordance  with
applicable law and that there is insufficient basis to determine that  there
has been an injustice.

4.    However, a majority of the Board is persuaded that  relief  should  be
granted from the time of the applicant’s physical in March  1989.   In  this
regard, a majority of the Board agrees with the recommendation from  the  HQ
AFPC/JA advisory and adopts the rationale expressed in it.

5.    The Board also does  not  believe  that  the  applicant  intentionally
refused to pay the amount due.  The majority grants the applicant’s  request
that the amount be reduced to the original amount  as  of  1993,  after  the
adjustment provided in paragraph 4 above.

6.    Notwithstanding the foregoing, the Board notes  that  as  of  November
30, 2000, DFAS has indicated that they are no longer attempting  to  collect
the applicant’s debt; however, should the  applicant  choose  to  repay  the
debt,  the  majority  recommends  that  any  interest  and  penalty  charges
associated with the contested debt be waived.  Once  this  is  accomplished,
it appears that the applicant’s credit report will show a paid obligation.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that the debt incurred  for  her  medical
education  under  the  provisions  of  the  Health  Professions  Scholarship
Program was established for the period 21 August 1985 to 2  March  1989  and
that competent authority  determined  that  no  administrative  interest  or
penalty charges be applied to the debt, provided she chooses  to  repay  the
established debt.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 10 August 2000 and 8 December 2000, under the provisions  of  AFI
36-2603:

                  Mr. Douglas J. Heady, Panel Chair
                  Mr. Joseph A. Roj, Member
                  Mr. Michael V. Barbino, Member








By a majority vote, the Board recommends the corrective action as  indicated
above.  Mr. Roj voted to deny the  entire  appeal,  but  does  not  wish  to
submit  a  minority  report.   The  following   documentary   evidence   was
considered:

   Exhibit A.  DD Form 149, dated 26 Mar 99, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPAMF2, dated 24 Apr 99, w/atchs.
   Exhibit D.  Letter, SAF/MIBR, dated 17 May 1999.
   Exhibit E.  Letter, Counsel, dated 29 May 1999.
   Exhibit F.  Letter, AFIT/CIM, dated 21 Jan 00.
   Exhibit G.  Letter, HQ AETC/SGPS, dated 18 Feb 00, w/atchs.
   Exhibit H.  Letter, AFPC/JA, dated 24 May 00.
   Exhibit I.  Letter, SAF/MIBR, dated 9 Jun 00.
   Exhibit J.  Letter, Counsel, dated 29 Jun 00, w/atch.




                                DOUGLAS J. HEADY
                                Panel Chair



AFBCMR 99-00849





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, be corrected to show that the debt incurred for her medical
education under the provisions of the Health Professions Scholarship
Program was established for the period 21 August 1985 to 2 March 1989 and
that competent authority determined that no administrative interest or
penalty charges be applied to the debt, provided she chooses to repay the
established debt.





            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency