RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-00383
            INDEX NUMBER:  128.10

      XXXXXXXXXXXX     COUNSEL:  Steven R. Chiodini

      XXX-XX-XXXX      HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

His indebtedness to the  government,  in  the  amount  of  $23,301,
incurred through the Armed Forces  Health  Professions  Scholarship
Program (AFHPSP), be cancelled.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The applicant’s counsel submitted a nine-page brief  with  exhibits
making the following points:

        A.  The applicant was discharged from the Air Force due  to
his statement that he is gay.

        B.  Recoupment is only allowed in cases such as his when it
has been determined  that  he  made  the  statement  of  homosexual
orientation  for  the  purpose  of  seeking  separation.   No  such
determination is warranted in his case.

        C.  Provides  background  on  how  the  applicant  came  to
realize his sexual orientation.

        D.  Endeavors to show that the decision to recoup the funds
expended on the applicant through the AFHPSP was in error based  on
the standard for recoupment and the Deutch Memorandum, dated 17 May
1994.

         E.  Provides  a  personal  statement  from  the  applicant
addressing the issue of his discharge from the AFHPSP.

The complete submission of applicant’s counsel is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Based  on  data  taken  from  the  applicant’s  military  personnel
records, he applied to be a member of  the  Air  Force  Reserve  on
30 Mar 93.  On 29 Apr 93, he entered into  an  AFHPSP  contract  in
which he agreed to serve on active duty for a specified  period  in
exchange for the  Air  Force  paying  for  his  medical  education.
On 29 Apr 93, he  was  commissioned  a  second  lieutenant  in  the
Reserves and also enrolled in  medical  school.   By  letter  dated
1  May  96,  the  applicant  notified  HQ  ARPC/SGI  that  he   was
homosexual.  He stated that for many years he had lived a  life  of
struggle and denial, and had recently  decided  that  he  would  no
longer be dishonest about who  he  was.   Again,  by  letter  dated
24 Jun 96, the applicant again wrote ARPC/SGI stating that  he  had
not received a reply to his first letter and was writing  again  in
case the letter had been lost.

On 21 Jun 96,  an  investigating  officer  (IO)  was  appointed  by
AFIT/CC to conduct an inquiry into all the facts and  circumstances
regarding the applicant’s statement about his  homosexuality.   The
applicant confirmed to the IO that he had  written  the  1  May  96
letter admitting his homosexuality.   The  IO  concluded  that  the
applicant was in fact homosexual and  had  probably  engaged  in  a
psychological struggle with his sexuality that was unresolved  when
he took the oath of office as second lieutenant  in  the  Reserves.
The  IO  concluded  that  the  applicant  did  not   disclose   his
homosexuality to avoid military service.

On 17 Jul 96, the report of investigation (ROI)  was  forwarded  to
the Air University (AU) commander (CC).  A legal review by  the  AU
Judge Advocate (JA) concluded that the  IO’s  conclusion  that  the
applicant did not  declare  his  homosexuality  to  avoid  military
service was not supported by the weight of the evidence.   Although
the  applicant  struggled   with   his   homosexual   feelings   in
undergraduate school, he repeatedly told the IO that  he  does  not
want to be in the military because  of  the  limitations  it  would
place on his homosexual  lifestyle.   For  example,  the  applicant
stated that he does not want to live his life  not  being  able  to
love the people he wants to.   The  AU/JA  recommended  that  AU/CC
request ARPC/CC process the applicant for discharge action.

On 9 Sep 96, AFIT/CC removed the applicant  from  the  AFHPSP.   On
23 Sep 96, the applicant was notified that the ARPC  commander  had
initiated action to determine if he should be discharged  from  his
appointment as an Air Force Reserve officer.   On 14  Oct  96,  the
applicant acknowledged receipt and waived consideration of his case
by an administrative discharge board.  On 28 Oct 96, ARPC/JA  found
the applicant’s waiver of his right to an administrative  discharge
board legally  sufficient  and  recommended  to  ARPC/CC  that  the
applicant be honorably discharged and the $23,301.10 spent  on  the
applicant’s medical education be recouped.  On 6  Nov  96,  ARPC/CC
recommended to the Secretary of the Air Force that the applicant be
honorably discharged from  the  Air  Force  Reserve  and  that  the
$23,301.10 expended for his medical education be recouped.
On 5 Feb 97, the  SECAF  honorably  discharged  the  applicant  and
ordered recoupment of all funds expended on him in the AFHPSP.

_________________________________________________________________

AIR FORCE EVALUATION:

The  Physician  Education  Branch,   AFPC/DPAME,   evaluated   this
application and recommends denial of the application.   The  AFHPSP
contract signed by the applicant on 29 Apr 93 states, “,…If I  fail
to complete the period of active duty required  by  this  agreement
because of voluntary  separation  for  any  reason  or  involuntary
separation because  of  substandard  duty  performance,  misconduct
(e.g.,  homosexuality),  moral  or  professional  dereliction,   or
because retention is not clearly consistent with  the  interest  of
national security, I will reimburse the United States in  one  lump
sum for the total  cost  of  advanced  education  paid  by  the  US
Government.”

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’ counsel responded to the evaluation.   The  advisory
opinion advances essentially one main argument: it  interprets  the
AFHPSP contract dated 29 Apr 93 in  a  narrow,  literal  manner  to
require automatic recoupment if a service member is discharged  for
homosexuality.  In so doing, the advisory opinion ignores the  fact
that Department of Defense (DOD) regulations passed  subsequent  to
the signing  of  the  contract  clarified  DOD  recoupment  policy,
corrected DoD’s previously incorrect application of the  recoupment
statutes in gay-statement discharge  cases,  and  now  overrules  a
literal   interpretation   of   these    contractual    provisions.
Consequently, the interpretation on which the advisory  opinion  is
based is incorrect and contrary to DOD regulation.   Recoupment  in
my client’s case is not proper.

The determinative issue is solely whether  Air  Force  counsel  can
prove, by a preponderance of the evidence, that  my  client  stated
his  sexual  orientation  for  the  specific  purpose  of   seeking
separation from the Air Force.  The Air  Force  cannot  prove  this
assertion, whatsoever, and the Air Force presents  no  evidence  to
the contrary.  The IO in my client’s case specifically  found  that
he was not seeking separation, but the Air  Force  erroneously  and
without explanation overruled this correct conclusion.

The applicant’s counsel expands on the following two areas:

      a.  The Contract and DOD Regulation

      b.  His client did not seek separation from the Air Force.

Finally, applicant’s counsel concludes that the  Deutch  memorandum
and Air Force regulation provided the sole standard under which the
Board may judge the propriety of the Air Force’s recoupment action.
 Under this standard, the Air Force must show by a preponderance of
the evidence that the applicant deliberately sought separation when
he stated he was gay.  The Air Force has  offered  no  evidence  to
this effect beyond conclusory allegations.  The IO  concluded  that
the applicant did not make the statement for the purpose of seeking
separation.  Given the Air Force’s failure to maintain  its  burden
of proof and the fact  that  the  applicant  has  no  intention  of
seeking separation, the Air Force has no right to  seek  recoupment
of his scholarship funds.

Counsel’s complete response is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

An additional Air Force evaluation was requested from the office of
the Air Force Judge Advocate  General,  USAF/JAG.   As  noted,  the
applicant’s AFHPSP contract provided that if he were separated  for
misconduct (e.g., homosexuality), he would be required to repay his
education  costs.   However,  in  1994,  the  Deputy  Secretary  of
Defense, John Deutch, signed a memorandum as “interim guidance”  on
the issue of recoupment of education assistance funds, bonuses, and
special pay from persons disenrolled or separated on the  basis  of
homosexual conduct.  This guidance, known as the Deutch Memorandum,
provided that educational costs for advanced educational assistance
would not be recouped  for  separations  caused  by  disclosure  of
homosexual orientation, absent misconduct or that  a  precipitating
statement was made for the  purpose  of  accomplishing  separation.
The Memorandum was in effect when the applicant was discharged.

Of  significance  to   the   applicant’s   case,   the   Memorandum
specifically provided that  “In  particular,  recoupment  would  be
appropriate where, based on the circumstances, it  determined  that
the  member  made  the  statement  for  the  purpose   of   seeking
separation.”   The  Memorandum   also   provided   that   “Existing
agreements  should  be  administered,  …,  consistently  with   the
guidance above.”  Thus under the  Memorandum,  applicant  would  be
subject to recoupment in this situation only if it were  determined
that based  on  the  circumstances,  he  disclosed  his  homosexual
orientation for the purpose of seeking separation.

Applicant contends that “ the Air Force cannot prove this assertion
whatever” and “has  offered  no  evidence  to  this  effect  beyond
conclusory allegations.”  We  disagree.   As  noted  in  a  SAF/GCM
memorandum on this issue, “While it may  be  difficult  to  make  a
factually accurate determination regarding the  subjective  purpose
for which a statement of homosexuality  may  be  made,  boards  and
commanders are often called upon to make such factual  assessments,
and often do so in matters of greater consequence.”

In this case, the appropriate commanders looked at the totality  of
the circumstances and concluded that applicant made  his  statement
to avoid  his  four-year  active  duty  service  commitment.   They
considered evidence that  applicant  had  accepted  his  homosexual
orientation and was aware of DoD homosexual policy  before  signing
his AFHPSP contract in 1993.  They also considered  the  fact  that
applicant waited until his fourth year  of  medical  school  before
disclosing his homosexual orientation.  They then  considered  that
applicant did not want the limitations that being in  the  military
would put on his  homosexual  lifestyle.   For  example,  applicant
stated, “I don’t like the prospect of having to repress or suppress
the feelings that I have.  I don’t want to live my life  not  being
able to love the people that I want to  because  of  my  career  or
because of what my friends think.”  He also stated, “I  don’t  want
to find myself in a situation where I want to engage in conduct and
find that I can’t do that because  of  my  Air  Force  obligation.”
Based on these comments, they further  concluded  that  applicant’s
statement that he wanted to continue to serve in the  military  was
self-serving and inconsistent with his stated intentions  and  that
applicant did not desire to remain  in  the  Air  Force.   Had  the
applicant truly desired to serve in the  military,  he  could  have
done so by not disclosing his homosexual orientation.

Consequently,  the  appropriate  commanders  reasonably  concluded,
based on the assessment of circumstances, that applicant  disclosed
his homosexual orientation for the purpose of separating  from  the
military.

The complete evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel also responded to the additional evaluation.  The Air Force
Judge Advocate General (JAG) agrees with the argument  advanced  by
the applicant in the Reply Brief of 30 Sep 00 that the Board  could
only require recoupment of  AFHPSP  funds  if  it  found  that  the
applicant made his statement  of  homosexual  orientation  for  the
purpose of seeking separation from the  Air  force.   Nevertheless,
the advisory opinion, purportedly on the basis of the “totality  of
the circumstances” surrounding the  applicant’s  statement,  argues
that he deliberately sought his discharge from the Air  Force.   As
explained by the applicant, the Air Forces conclusion is not  based
on the totality of the circumstances, but rather on (1)  a  dubious
theory concerning the timing of the applicant’s statement in  1996,
(2) a skewed interpretation of two comments taken out  of  context,
and (3) a wholesale refusal to address seriously the  evidence  and
findings that run counter to its argument,  including  the  written
finding of its own Inquiry  Officer  that  recoupment  against  the
applicant was not proper.

The advisory opinion argues that the  applicant  waited  until  his
“fourth year” of medical school in order to send his  statement  to
the Air Force.  The characterization that the applicant’s statement
was done in his “fourth year” is incorrect.  The applicant’s 1  May
96 letter was in his third year.  More  importantly,  however,  the
advisory opinion’s argument is misleading.   As  a  result  of  the
adverse personnel actions initiated by the Air Force  against  him,
he paid for his fourth year of medical school himself and  faced  a
$26,000 [sic] debt to  the  Air  Force,  which  he  was  forced  to
contemplate repaying on the bare subsistence salary he was to  earn
in his years of medical internship and residency after  graduation.
In arguing on the basis of the “totality of the circumstances”, the
advisory opinion neglects to mention these additional  facts.   Why
would a person, carefully plotting his own discharge,  deliberately
time his separation in a manner to cause himself  severe  financial
hardship?  In view of the true totality of the  circumstances,  the
Advisory Opinion’s theory is irrational.

Counsel states that in an attempt  to  support  its  argument,  the
advisory opinion extracted two sentence fragments  from  12  pages.
Counsel endeavors to show that the full context of the  applicant’s
statement does not indicate that he wanted to avoid Air Force duty.
 The purpose of the interview was to corroborate the basis for  the
applicant’s discharge.  In the passages in  question,  the  IO  was
probing whether the applicant, his letter aside, had  a  propensity
to engage in homosexual conduct.  Apart  from  taking  two  of  the
applicant’s comments entirely out of context, the advisory  opinion
fails to mention that the IO, unlike the JAG, was  present  at  the
interview and  observed  the  applicant’s  countenance  and  speech
inflections as the interview transpired.  The  IO  concluded  in  a
written report that the applicant was not seeking separation.

The advisory opinion also attempts to  support  its  conclusion  by
repeating the tired assertion that the applicant  fully  identified
as a gay  person  when  he  began  medical  school  in  1993.   The
applicant addressed this assertion at length in his original  Brief
of Counsel and accompanying Personal Statement.  The applicant  has
repeatedly explained that until 1996,  he  refused  to  accept  his
homosexual feelings as anything more than a temporary phase.

Lastly, the advisory opinion quickly  dismisses  as  “self-serving”
the sole direct evidence in this case: the applicant’s repeated and
consistent testimony  that  he  is  not  seeking  separation.   The
advisory  opinion  mentions  no  direct,  concrete  basis  for  its
challenge of the applicant’s credibility.

In its  prior  advisory  opinion,  the  Air  Force  suggested  that
recoupment against the applicant was proper  based  on  the  AFHPSP
contract (a view that contradicted the Deutch  Memorandum  and  DoD
regulations), and at that time the Air Force advanced  no  evidence
to support the decision to recoup the applicant’s scholarship.   In
the present advisory, the Air Force JAG has apparently  disregarded
the contractual argument and  instead  proposes  a  purely  (albeit
weak) evidentiary  argument  as  the  basis  for  recoupment.   The
applicant  submits  to  the  Board  that  the   totality   of   the
circumstances surrounding his case does not  prove  any  intent  to
seek separation.

The applicant’s complete submission is at Exhibit G.

_________________________________________________________________

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.  We  took
notice of the applicant's complete submission in judging the merits
of  the  case;  however,   we   agree   with   the   opinions   and
recommendations of the Air Force offices of primary  responsibility
and adopt their rationale as the basis for our conclusion that  the
applicant has not  been  the  victim  of  an  error  or  injustice.
According to statements made by the applicant, he was aware of  his
homosexual feelings before he entered into his AFHPSP contract.  In
this regard, it appears that he entered into the contract with full
knowledge that these feelings might manifest themselves in  actions
that would  disqualify  him  from  Air  Force  service.   While  he
indicates that he believed he would overcome these feelings, it  is
also reasonable for him to have considered the consequences  should
he not overcome them.  The Board is not convinced by  the  evidence
he has presented that he did not write  the  letter  declaring  his
homosexuality with intent of being discharged.   In  fact,  in  the
same letter, he states, “I understand that there  are  consequences
to this letter.”  Given his apparent knowledge of Air Force  policy
on  homosexuality,  the  Board  finds  no  other  purpose  for  his
statement.  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  issues  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 13 February 2001, under the provisions of  AFI
36-2603:

      Mr. Thomas S. Markiewicz, Panel Chair
      Mr. E. David Hoard, Member
      Ms. Carolyn J. Watkins, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 1 Feb 00, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPAME, dated 1 Mar 00, w/atchs.
    Exhibit D.  Letter, SAF/MIBR, dated 10 Mar 00.
    Exhibit E.  Letter, Applicant’s Counsel, dated 18 Sep 00,
                w/atchs.
    Exhibit F.  Memorandum, USAF/JAG, dated 30 Nov 00.
    Exhibit G.  Letter, AFBCMR, dated 5 Dec.
    Exhibit H.  Letter, Applicant’s Counsel, dated 29 Jan 01,
                w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Panel Chair