RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  99-03192
            INDEX CODE:

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

A debt in  the  amount  of  $1,848.25,  collected  at  separation,  be
refunded.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The reasons the applicant believes the  records  to  be  in  error  or
unjust and the evidence submitted in support  of  the  appeal  are  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Information extracted  from  microfiche  records  of  the  applicant’s
military personnel records, reveals 28  Sep  99  as  the  Active  Duty
Service Commitment Date (ADSCD) for his education training through the
Air Force Institute of Technology (AFIT).

The relevant facts pertaining to this application are contained in the
letters prepared by the appropriate offices of the Air Force  and  the
Defense Finance and Accounting Service.  Accordingly, there is no need
to recite these facts in this Record of Proceedings.

_________________________________________________________________

AIR FORCE EVALUATION:

The Directorate of Personnel program Management, HQ AFPC/DPPRS  stated
that  the  applicant  voluntarily  resigned  his  Regular  Air   Force
commission for early discharge from the Air  Force.   His  application
was approved and he was honorably discharged in the grade of  captain,
under  the  provisions  of  AFI  36-3207  (Voluntary -   Miscellaneous
Reasons), on 29 Sep 98.  He served a total of 9 years, 3 months and 39
days of active service at the time of his  separation.   DPPRS  stated
that the applicant  did  not  identify  any  specific  errors  in  the
discharge processing or provide facts that warrant  a  change  in  his
record.  DPPRS recommended the applicant’s request be denied  (Exhibit
C).


The  Claims  Branch,  DFAS-DE/FYCC,  reviewed  this  application   and
recommended denial.  FYCC was informed by the  Waivers  and  Remission
Branch (DFAS-DE/FYCT) that  the  debt  could  not  be  considered  for
waiver.  Public Law 92-453 authorizes the waiver of erroneous payments
of pay and allowances to military members.  FYCC stated that this debt
is the result of the applicant not completing  the  time  in  military
service that he agreed to in connection with the training he received.
 Hence, it is not an erroneous payment subject to waiver under PL  92-
453.  A complete copy of the evaluation is at Exhibit D.

The Claims Branch, DFAS-DE/FYCC, reexamined the applicant’s appeal and
stated that their Legal Office issued  an  opinion  that  Title  5  of
United States Code  applies  only  to  civilian  employment  with  the
Government and does not govern military service.   The  law  governing
the applicant’s service commitment  is  10  U.S.C.  Section  2005,  as
implemented by AFI 36-2107, which  requires  an  active  duty  service
commitment for advanced education received.  Active duty is defined as
“fulltime duty in the active military service of the  United  States,”
by  10  U.S.C.  Section  101(d)(1).   Civilian  employment  with   the
Department of Defense does not fall within the definition.  Recoupment
“when officers separate before completing the period  of  active  duty
they agreed to serve” is required by AFI 36-3207, unless  relieved  of
the debt by the Secretary of the Air Force.  The debt was  proper  and
the collections made against it should not be refunded.  Based on  the
information provided, DFAS-DE/FYCC finds there has not been  an  error
or an injustice and recommended  the  applicant’s  request  be  denied
(Exhibit D).

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He stated that Public Law 92-453 does not pertain  to  his  case.   He
asked DFAS-DE/FYCC if they reviewed US Code  Title  5,  Section  4108,
prior to providing their opinion and was informed that it was  outside
the scope of their mission area and did not review it.  Although  FYCC
did not consider this law in their review, it is important to remember
that this does not imply the waiver request should not  be  considered
under USC Title 5 Section 4108.

He disagrees with the opinion of DFAS-DE.  DFAS-DE stated that Title 5
only applies  to  civilian  employees.   However,  both  military  and
civilian are required to complete and sign the Department  of  Defense
Form 1556 requesting training.  The DD  Form  1556  states  under  the
“Authority” block that Title 5 of the USC is known as  The  Government
Employee Act of 1958.  As a military member, he  considers  himself  a
government employee and subject to USC, Title 5.  He further  cites  a
section of USC, Title 10,  concerning  the  Secretary’s  authority  to
reduce an active duty service obligation.

The applicant’s response to the advisory opinions is 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.    Sufficient relevant evidence has been presented  to  demonstrate
the existence of probable injustice.  We note that it is the intent of
the Law to make sure the Government receives the benefit of the  money
invested in education.  Inasmuch as the applicant is a  civil  service
employee working in the same organization, performing similar  duties,
as he did while on active  duty,  we  are  of  the  opinion  that  the
Government has received no less benefit now that he is a civilian than
if he stayed on active duty.  We find that the  only  thing  that  has
changed is the applicant’s military status.  Since the  Air  Force  is
receiving the benefit of the applicant’s education, we do not  believe
that the Air Force has been harmed.  We therefore conclude that equity
dictates that the applicant’s request  be  approved  and  his  records
corrected as indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be  corrected  to  show  that  his  Active  Duty
Service Commitment (ADSC), incurred as  a  result  of  his  Air  Force
Institute of Technology (AFIT) educational training,  is  28 September
1998, rather than 28 September 1999.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 19 September 2000, under the provisions of AFI 36-
2603:

                  Mr. Terry A. Yonkers, Panel Chair
                  Mr. Philip Sheuerman, Member
              Mr. Edward C. Koenig, III, Member

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

   Exhibit A.  DD Form 149, dated 3 Dec 99, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPRS, dated 24 Jan 00.
   Exhibit D.  Letters, DFAS-DE/FYCC, dated 6 Mar 00, and
                   24 May 00, w/atchs.
   Exhibit E.  Letters, SAF/MIBR, dated 24 Mar 00 and 9 Jun 00.
   Exhibit F.  Letters from applicant, undated, w/atchs.




                                   TERRY A. YONKERS
                                   Panel Chair



AFBCMR 99-03192




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 Active Duty
Service Commitment (ADSC), incurred as a result of his Air Force
Institute of Technology (AFIT) educational training, is 28 September
1998, rather than 28 September 1999.





            JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency