RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-00409
            INDEX NUMBER:  128.10

      XXXXXXXXXXXXXXXX COUNSEL:  Steven Chiodini

      XXX-XX-XXXX      HEARING DESIRED:  Yes

_______________________________________________________________

APPLICANT REQUESTS THAT:

His alleged indebtedness to the government for his education  paid  for
under the Health Professions Scholarship Program (HPSP) be removed from
his military records thereby stopping all recoupment actions.

_______________________________________________________________

APPLICANT CONTENDS THAT:

Applicant’s counsel in a ten-page brief with eight exhibits states that
recoupment in the applicant’s case is unwarranted and improper.   Among
the points made are the following:

a.  The applicant listed his sexual orientation in direct response to a
question on a medical questionnaire that he was  required  to  complete
for a pre-commissioning physical. The  applicant  revealed  his  sexual
orientation at a time when the Air  Force  routinely  asked  candidates
about their sexual orientation.  The applicant  expected  to  be  asked
during the subsequent physical, and as  a  result,  felt  compelled  to
answer the questionnaire as truthfully and completely as possible.

        b.  The circumstances of the applicant’s case do not  meet  the
standard for recoupment under the relevant statutory and administrative
law.  The applicant’s counsel references Section 2005(a) of Title 10 of
the  United  States  Code  (USC),  the  Deutch  Memorandum,  Air  Force
Instruction (AFI) 36-3206, and Air Force Regulation 90-301.

        c.  The applicant has not engaged in conduct that would  result
in discharge under other than honorable  conditions  or  is  punishable
under the  Uniform  Code  of  Military  Justice  as  determined  by  an
administrative  discharge  board.   He  did  not  voluntarily  fail  to
complete his required period of duty.

d.  The Inquiry Officer’s (IO) conclusion that the  applicant  revealed
his sexual orientation  for  the  purpose  of  seeking  separation  was
fundamentally flawed.  The IO based his  conclusion  on  two  premises,
both of which are incorrect.  The IO maintained that the applicant “was
under no obligation to make any statement at all” during  his  November
1990 physical examination.  At that time it was  Air  Force  policy  to
inquire about sexual orientation  during  pre-commissioning  physicals.
The applicant fully expected to be asked about his  sexual  orientation
in 1990 as he had been during his 1984 physical, and he was prepared to
answer that he was gay.  The first substantive question  on  the  forms
requested a “statement of examinee’s present health” to be followed  by
a “description  of  past  history,  if  a  complaint  exists.”   Sexual
orientation is a vital part of an examinee’s medical history, which the
applicant as a trained physician, well understood.  The second  premise
that the IO based his conclusion on was that the applicant deliberately
timed his  statement  to  coincide  with  the  end  of  his  residency,
immediately before he was to enter active duty.  The IO points out that
the applicant underwent Air Force physical exams in 1984 and  1987  and
could have announced his sexual orientation at either  point.   The  IO
reached these conclusions because he did not understand the  nature  of
homosexuality.  The process of coming  to  terms  with  one’s  same-sex
orientation is gradual and occurs  at  different  times  for  different
people, and  until  they  have  completed  this  process  they  do  not
typically identify themselves as gay.

        e.  The IO’s methodology in reaching his conclusions  was  also
deeply flawed.  Although he concluded there  was  “more  than  adequate
evidentiary basis” to require recoupment on the  basis  of  an  alleged
voluntary effort by the applicant to seek  separation,  he  based  this
conclusion on little more than his own interview of the applicant.   In
fact, at the IO’s request, the applicant provided the  names  of  three
friends and colleagues that could corroborate his testimony.

Counsel’s complete submission is at Exhibit A.

_______________________________________________________________

STATEMENT OF FACTS:

The relevant facts pertaining to this application, extracted  from  the
applicant’s military records, are contained in the letter  prepared  by
the appropriate office of the Air Force.  Accordingly, there is no need
to recite these facts in this Record of Proceedings.

_______________________________________________________________

AIR FORCE EVALUATION:

The Staff  Judge  Advocate,  Air  Reserve  Personnel  Center,  ARPC/JA,
evaluated this application and recommends  denial  of  the  applicant’s
request.

The applicant had  three  opportunities  to  challenge  the  report  of
investigation (ROI) in question and submit statements by his witnesses.
 The first opportunity came when the ROI was provided to  him  back  in
1996.  The applicant did in fact, through counsel, submit  comments  to
the ROI.  However, throughout the three-page  response,  he  failed  to
make any objection to the ROI based on the IO’s failure to contact  the
three witnesses in question.  Rather, he accused the IO of  bias.   The
applicant was  also  given  an  opportunity  to  submit  statements  in
response to the Notification of Discharge at  any  time  prior  to  the
final action being taken.  The applicant submitted only  one  statement
in response to the proposed discharge, the 18 Nov 96  letter  from  his
attorney, which disputed the  ROI,  but  failed  to  address  the  IO’s
alleged oversight of the  three  witnesses.   When  the  applicant  was
notified of the discharge, he was also advised  that  if  he  chose  an
administrative discharge board,  the  Board  would  make  findings  and
recommendations to  the  Secretary  of  the  Air  Force  regarding  the
validity of the $55,125.59  indebtedness.   The  applicant  decided  to
waive his  board,  thereby  forfeiting  another  forum  for  presenting
further evidence, i.e. written statements or  testimony  of  the  three
witnesses.  Clearly, the IO’s failure to contact the three witnesses in
question does not constitute an injustice  in  light  of  the  multiple
opportunities that the applicant  had  to  bring  their  statements  or
testimony to the  attention  of  the  discharge  authority.   The  IO’s
failure to contact the three witnesses in question does not  constitute
a material error.  An IO investigating a homosexual statement in  order
to make findings concerning discharge and recoupment has  many  factors
to  consider  in  determining  the  purpose  behind  utterance  of  the
statement.  They  must  consider  the  timing  of  the  statement,  the
voluntariness of the statement  and  corroboration  of  the  statement,
among other things.  An IO need not exhaust  every  potential  witness,
when sufficient facts have been uncovered  from  which  they  can  make
findings and recommendations.

The determination  of  “voluntariness”  is  crucial  to  the  issue  of
recoupment.  Voluntariness, for the purpose of meeting the criteria  of
10 U.S.C. 2005 (a) (3) may be considered to  include  not  only  direct
evidence suggesting a desire to separate from the Air Force,  but  also
evidence that the member took actions he knew would or could  have  the
natural consequence of causing his separation from the Air Force.   The
IO apparently did not consider the  applicant’s  discussions  with  his
friends and colleagues as sufficiently probative of  the  voluntariness
of the applicant’s homosexual statement.   Although  these  discussions
may have been helpful in determining that the  applicant  had  positive
feelings toward serving in the Air Force,  they  would  not  have  been
dispositive  of  the  voluntariness  of  the   applicant’s   homosexual
statement.  On pages 28-29 of the applicant’s  interview,  he  examined
paragraph 2(i) of his HPSP contract and admitted that the paragraph was
indeed part of his contract when he signed it.  The existence  of  this
paragraph in the applicant’s contract  placed  him  on  notice  of  the
natural consequences of making a homosexual statement, i.e. involuntary
discharge.  Applicant’s counsel claims that  the  homosexual  statement
was made in response to a direct question.  This simply isn’t true.  SF
93, Block 8 asks for a “Statement  of  Examinee’s  Present  Health  and
Medications Currently Used (Follow by description of past  history,  if
complaint  exists).”   The   applicant’s   response,   “Excellent…   No
medications….  Over the past three years I have come to realize that my
sexual  preference  is  homosexual.”   Giving  all  deference  to   the
applicant’s professional judgement that his homosexuality was  relevant
to his medical care, that portion of his  response  is  non-responsive.
Clearly, his statement regarding his homosexuality  was  voluntary  and
unsolicited.  Furthermore, the  applicant  was  aware  of  the  natural
consequence of making the statement based on his HPSP contract.

The complete evaluation is at Exhibit C.

_______________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The applicant was provided a copy of a memorandum,  dated  12  Oct  00,
done by the Assistant Secretary of the  Air  Force  (Manpower,  Reserve
Affairs, Installations, and Environment), SAF/MI related to  recoupment
of education costs under the HPSP.

The Memorandum is at Exhibit D.

_______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel provided a five-page  response  to  the  evaluation
with a copy of the original Brief of Counsel attached  as  an  exhibit.
Applicant’s counsel seeks to make the following points.

        a.  The Inquiry Officer Officer’s decision not to interview the
witnesses named by the applicant was unjust and a material error.   The
Advisory Opinion argues that the applicant had “multiple opportunities”
to contest the IO’s failure to  contact  the  three  witnesses  he  had
identified.  On this basis, the Advisory Opinion maintains that the  IO
failure was not unjust.  The ROI concluded that the applicant  revealed
his sexual orientation for the purpose of seeking separation  from  the
Air Force.  As “evidence” for this theory,  the  ROI  argued  that  the
applicant supposedly knew he was gay for several years  prior  to  1990
and that he deliberately timed the revelation of his sexual orientation
to coincide with the onset of  his  active  duty  service  requirement.
These premises contradict the applicant’s  extensive  direct  testimony
that he only accepted his sexual  orientation  and  began  to  identify
himself as gay during  his  medical  residency  after  1988,  and  most
importantly that he did not want to be separated from  the  Air  Force.
Indeed,  the  ROI  offered  no  evidence  beyond  the  timing  of   the
applicant’s statement and a misreading of a letter from the applicant’s
doctor to corroborate its premises, despite the fact that the applicant
provided the names of witnesses who could testify to  the  veracity  of
his statements.  The IO did not “exhaust every potential witness.”   As
far as the applicant is aware, the IO failed  to  contact  any  outside
witnesses he had named who could have corroborated his testimony.   Air
Force Instruction (AFI) 90-301 provides that  the  “standard  of  proof
applicable  to  Inspector  General  investigations  is   proof   by   a
Preponderance of the Evidence.”  AFI 90-301 does grant some  leeway  in
recognizing that  an  IO  may  occasionally  need  to  argue  from  the
“totality of circumstances” where it  is  not  possible  to  weigh  the
evidence mechanically.  This clause was arguably not intended, however,
to demolish the motivation behind the  preponderance  of  the  evidence
standard: that is, an IO must demonstrate that  their  conclusions  are
more probably correct than not.   It  was  certainly  not  intended  to
permit the IO to dismiss the single largest volume of  direct  evidence
on the basis of impression without calling  any  of  the  corroborating
witnesses named.  The decision to do so constituted  a  material  error
because an  interview  of  the  three  witnesses  would  have  strongly
corroborated the applicant’s own testimony and may have resulted  in  a
different conclusion for the report.

        b.  The Advisory Opinion fails to apply relevant Department  of
Defense (DOD) regulation properly.  The Advisory Opinion argues that  a
determination of “voluntariness” in judging the propriety of recoupment
should include evidence that a servicemember took actions he knew could
have the natural consequence of causing discharge.   This  argument  is
wrong because it  ignores  a  directly  relevant  and  controlling  DOD
regulation.  The Memorandum of Deputy  Secretary  of  Defense  John  M.
Deutch, dated 17 May 1994, provides that “a member’s statement that  he
or she is a homosexual, though grounds for separation under the current
policy  if  it  demonstrates  a  propensity  or  intent  to  engage  in
homosexual acts, does not  constitute  a  basis  for  recoupment.”   As
directed by the Deutch memorandum, recoupment in such  case  is  proper
only where “it is determined that the member made the statement for the
purpose of seeking  separation”  or  where,  pursuant  to  “a  specific
written finding … by an administrative board (or, in a case  where  the
board is waived, the separation authority),” there has been  misconduct
such that “a characterization of Under Other Than Honorable Conditions…
is authorized or the conduct is punishable under the  Uniform  Code  of
Military Justice.”  AFI 36-3206 (19  Jun  98)  provides  for  mandatory
compliance with recoupment standards identical to those in  the  Deutch
Memorandum.  Since the Air Force has never alleged or  found  that  the
applicant  engaged  in  misconduct,   the   applicable   standard   for
determining  the  propriety  of  seeking  recoupment  is  whether   the
applicant made his statement for the  purpose  of  seeking  separation.
The Advisory Opinion, however, implies a different standard.  Under the
argument made in the Advisory Opinion, purpose  can  be  inferred  from
knowledge of possible consequences.  Taken to its logical  extent,  the
Advisory  Opinion’s  interpretation  of  “voluntariness”   or   purpose
produces the following result: (1) A servicemember should know, on  the
basis of his HPSP contract, that every statement of homosexual  conduct
may result in discharge; (2) Purpose can be  inferred  where  a  person
takes an action with knowledge of possible consequences; (3) Therefore,
every time a servicemember makes a statement of homosexual orientation,
he or she made the statement for the  purpose  of  seeking  separation.
This conclusion directly contradicts the Deutch Memorandum.  Under  the
Deutch Memorandum, a statement  of  homosexual  orientation  “does  not
constitute a basis for recoupment.”

Counsel’s complete response is at Exhibit G.

_______________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant’s counsel provided a five-page response with two exhibits  to
the additional Air Force evaluation.  Counsel states that the  contract
entered into by the applicant  is  clearly  distinguishable  from  that
presented in the letter by the Assistant Secretary of  the  Air  Force.
The applicant was discharged because of his homosexual orientation, not
because  of  a  medical  disqualification.    Department   of   Defense
regulation expressly overrides the recoupment provisions in the  AFHPSP
contract for service members discharged for  homosexual  “conduct”  (or
the inference thereof).  Counsel again references the Deutch Memorandum
and the requirements that must be met for recoupment when an individual
is discharged for homosexual conduct.

Counsel’s complete response is at Exhibit H.

_______________________________________________________________

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  Staff
Judge Advocate, Air Reserve Personnel Center and adopt their  rationale
as the basis for our conclusion that the applicant  has  not  been  the
victim of an  error  or  injustice.   While  noting  the  comments  and
objections of applicant’s counsel,  we  were  not  persuaded  that  the
findings of the IO were  improper  or  incorrect.   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 19 July 2001, under the provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Vice Chair
      Mr. Steven A. Shaw, Member
      Ms. Barbara J. White-Olson, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 28 Jan 00, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, ARPC/JA, dated 17 May 00.
    Exhibit D.  Memorandum, SAF/MI, dated 12 Oct 00.
    Exhibit E.  Letter, SAF/MIBR, dated 9 Jun 00.
    Exhibit F.  Letter, AFBCMR, dated 4 Jun 01.
    Exhibit G.  Letter, Applicant’s Counsel, dated 9 May 01
                W/atchs.
    Exhibit H.  Letter, Applicant’s Counsel, undated, w/atchs.





                                   THOMAS S. MARKIEWICZ
                                   Vice Chair