RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-02824
            INDEX CODE:  128.10

            COUNSEL:  PAUL F. EVELIUS

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

All references to his owing monies to the Government be  eliminated  from
his record; i.e., his debt in the amount of approximately $40,000 that he
incurred as a result of his participation  in  the  Armed  Forces  Health
Professions Scholarship Program (AFHPSP) be remitted.

___________________________________________________________________

APPLICANT CONTENDS THAT:

He is entitled to a  waiver  because  he  was  willing  to  complete  his
contractual obligations to the Air Force despite his disability.  He  was
evaluated at the Wilford Hall Medical Center (WHMC) in May 1991, prior to
starting his fourth year  of  medical  school,  and  was  told  he  could
continue in the  AFHPSP.   The  Air  Force  had  full  knowledge  of  his
condition and possible outcome.  He made an honest effort to fulfill  the
requirements of the program.  Even when given the opportunity to  resign,
he rejected this offer and tried to stay connected to the  Air  Force  by
requesting transfer to the Retired Reserve.

The 22 May 1995 letter from the Director, Accession Policy, indicates the
government  decided  to  waive  recoupment  of  the  monies   at   issue.
Consistent with this letter, the government treated the matter as  closed
for years.  He relied on this letter  and  the  government’s  conduct  to
conduct his financial activities and his life as if he did  not  owe  the
government approximately $40,000.

Under the governing statute, 10  USC  2005,  the  government  could  seek
reimbursement from him only if he failed  to  complete  the  active  duty
service commitment (ADSC) “voluntarily or because of misconduct.”

His counsel never advised  him  concerning  any  potential  reimbursement
liability to the government and/or how he might avoid it.   Had  he  been
properly advised, he could have taken steps  to  appropriately  challenge
any “medical disqualification” decision.

The  government  has  apparently  violated  federal  law  by   disclosing
information to consumer reporting agencies and has  unreasonably  invaded
his privacy.  He demands that the United States  retract  and  cease  any
communications indicating that he owes monies and that the Unites  States
immediately suspend all efforts to collect  monies  from  him  while  his
application is pending.

Applicant’s complete submission is at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

Documentation submitted by the applicant indicates that on 3 April  1993,
he signed a Hospital Agreement on which he  noted  he  was  evaluated  in
August 1991, by the WHMC  Rheumatology  Clinic  and  was  diagnosed  with
“Reiters Syndrome.”  He was scheduled for entry on active duty  (EAD)  in
July 1996.  In October 1993, the Surgeon, HQ ARPC, found he was medically
disqualified for  continued  military  service  by  reason  of  “Reiter’s
Disease and Subtalar Fusion of the Right Foot (Triple Arthrodesis).”  The
applicant was notified of his disqualification in February 1994,  and  he
was notified of his proposed discharge in March 1994.  On 23  June  1994,
the Director, Secretary of  the  Air  Force  Personnel  Council  (SAFPC),
advised that the Secretary of the Air Force (SAF) declined to accept  his
application for transfer to the Honorary Retired Reserve and directed  he
be discharged from all appointments held in the USAF.  The  SAF  did  not
excuse  any  indebtedness  to  the  United  States  Government.   He  was
honorably discharged on 28 June 1994.  In September 1994,  the  applicant
requested a waiver of the recoupment.  In October 1994, the SAF Personnel
Council denied the request.

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

___________________________________________________________________

AIR FORCE EVALUATION:

The  Chief,  Physician  Education  Branch,   AFPC/DPAME,   reviewed   the
applicant’s request and recommended denial.  DPAME states that consistent
with Title 10, Section 2005, the applicant  signed  his  AFHPSP  contract
which states, “Should I become unable to commence the  period  of  Active
Duty Service Commitment (ADSC) 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  paid  by  the  U.  S.
Government as specified in 10 USC 2005.”

The applicant was sponsored through the AFHPSP program at the  University
of Maryland until 1992.  He disclosed “Reiters  Syndrome”  on  his  April
1993 Hospital  Agreement  Form  (HAF).   DPAME  cannot  confirm  or  deny
disclosure prior to 1993.  The HAF is an annual form  used  by  DPAME  to
monitor academic progress and potential medical disqualifying conditions.
 There is no documentation submitted by the applicant prior to  the  1993
HAF.  As a result of his disclosure, additional medical  information  was
requested  and  received  resulting  in  medical  disqualification   with
recoupment ordered by the Secretary of the Air Force (SAF) in June 1994.

A complete copy of the DPAME evaluation is at Exhibit C.

A redacted copy of a similar case decided by the Assistant  Secretary  of
the Air Force (Manpower, Reserve Affairs, Installations, and Environment)
was provided to the applicant’s counsel on 15 November 2000,  for  review
and response within 30 days (Exhibit E, with attachment).

By letter dated 8 December 2000, counsel requested that  the  application
be withdrawn.  Counsel’s request with the AFBCMR response is  at  Exhibit
F.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

By letter dated 15 June 2001, counsel  advised  that  the  applicant  was
ready to proceed and submitted additional  materials  for  consideration.
Counsel’s response to the advisory opinion and the SAF/MI decision is  at
Exhibit G, with attachments.

On 13 July 2001, counsel was notified by the AFBCMR  that  an  additional
advisory opinion was required prior to presenting the case to  the  Board
for a decision (Exhibit  H).   By  letter  dated  20 July  2001,  counsel
provided  an  additional  statement  and  supporting  materials   to   be
considered in the additional review (Exhibit I, with attachments).

___________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Chief, General Law Division, HQ  USAF/JAG,  recommended  denial.   He
addressed the applicant’s contentions seriatim.

First, he argues that,  in  1990,  he  notified  the  Air  Force  of  his
condition and was certified to complete medical  school  in  the  AFHPSP.
Even if true, it would  not  alter  the  fact  that  the  nature  of  his
condition was only relevant at the time he was to come on active duty.

Second, while it is true that the Air Force made the  determination  that
the applicant was not physically qualified  for  military  service,  that
decision was made in accordance with medical directives and by  personnel
qualified to make the decision.  At the time he entered into  the  AFHPSP
contract, the applicant was on notice of the  requirement  that  he  must
meet and continue to meet Air Force physical standards.  In addition, the
contract placed the applicant on notice  of  the  consequences  of  being
found physically unfit for service.  The Air Force made the determination
that he was not physically qualified  to  continue  in  the  program  and
followed the express terms of the contract thereafter.

The applicant’s third argument is that the Air  Force  waived  recoupment
through the May 1995  letter  from  the  Director,  Office  of  Accession
Policy, Office of the Assistant Secretary of Defense, which  stated  that
HQ USAF/SG had decided to support his  application  for  a  waiver.   The
letter only states that the Office of the Surgeon General would seek  the
authority to waive the debt, and is not the same as granting the  waiver.


Fourth, the applicant asserts that recoupment for advanced education  can
be made only if the individual  “voluntarily  or  because  of  misconduct
fails to complete the period of active duty specified in the  agreement.”
The underlying premise is incorrect.  The actual words read, “or fails to
fulfill any term or condition prescribed pursuant to clause (4).”  Clause
(4) gives the Secretary the discretion  to  include  in  a  contract  for
education “such other terms and conditions as the Secretary concerned may
prescribe to protect the interest of the United States.”   The  Secretary
exercised the authority granted by clause (4) of 10 USC 2005 and made the
applicant subject to recovery for failing to serve out the terms  of  the
contract.  In situations where a disqualifying  medical  condition  would
prohibit an individual from using his or her education to earn a  living,
perhaps equity and fairness would weigh against recoupment and recoupment
could constitute an injustice.  But in  situations  like  the  applicant,
where the medical condition disqualifying  the  individual  from  service
does not prevent  that  individual  from  using  his  government-financed
education to pursue a profession for personal  gain,  the  government  is
entitled to the enforcement of the contract.

Finally, the applicant contends that the government  is  responsible  for
his inability to contest his liability for the debt  because  his counsel
did not advise him of any potential recoupment liability or how he  might
avoid it.  This argument ignores the plain language of the  agreement  he
signed before entering the program.  Paragraph  6(b)  states,  “Should  I
become unable to commence the period of ADSC 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  paid  by
the U.S. Government as specified  in  10  USC  2005.”   Furthermore,  the
applicant  was  advised   of   his   right   to   contest   the   medical
disqualification determination and of his right to a board hearing in the
Notice of Proposed Discharge, dated 1 March 1994.

A copy of the complete USAF/JAG evaluation is at Exhibit J.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

By letter dated 8 August  2001,  counsel  indicated  that  the  applicant
intends to respond to the additional advisory opinion, which he  believes
disregards congressional intent, existing case  law,  and  constitutional
equal protection principles (Exhibit L).  However, as of  this  date,  no
response has been received by this office.

___________________________________________________________________

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 an exhaustive review  of
the  circumstances  of  this  case,  we  agree  with  the  opinions   and
recommendations of the Office of the Judge  Advocate  General  and  adopt
their rationale as the basis for  our  conclusion  that  the  applicant’s
contract provided that he would reimburse the Air Force  if,  because  of
physical disqualification, he was unable to commence his period of active
duty.  We noted the  statement  that  the  Air  Force  waived  recoupment
through the May 1995  letter  from  the  Director,  Office  of  Accession
Policy, Office of the Assistant Secretary of Defense, which  stated  that
HQ USAF/SG had decided to support his  application  for  a  waiver.   The
letter only states that the Office of the Surgeon General would seek  the
authority to waive the debt, and, in our view,  is  not  synonymous  with
granting the waiver.  Notwithstanding counsel’s  several  arguments  that
the applicant should not be liable for the debt, we  find  no  compelling
basis to relieve  the  applicant  of  his  obligation  to  reimburse  the
government for its expenditure of public funds.  Therefore,  his  request
that his record be corrected by removing  all  references  to  his  owing
monies to the Government is denied.

4.  The documentation provided with this case was sufficient to give  the
Board a clear  understanding  of  the  issues  involved  and  a  personal
appearance, with or without counsel, would not have materially  added  to
that  understanding.   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 9 October 2001, under the provisions of AFI 36-2603:

                 Ms. Peggy E. Gordon, Panel Chair
                 Mr. Grover L. Dunn, Member
                 Mr. Thomas J. Topolski, Jr., Member

The following documentary evidence was considered:

  Exhibit A.  DD Form 149, dated 23 Aug 2000, w/atchs.
  Exhibit B.  Applicant's Master Personnel Records.
  Exhibit C.  Letter, AFPC/DPAME, dated 27 Oct 2000.
  Exhibit D.  Letter, SAF/MIBR, dated 10 Nov 2000.
  Exhibit E.  Letter, AFBCMR, dated 15 Nov 2000, w/atch.
  Exhibit F.  Letter, Counsel, dated 8 Dec 2000, w/AFBCMR Response.
  Exhibit G.  Letter, Counsel, dated 15 Jun 2001, w/atchs.
  Exhibit H.  Letter, AFBCMR, dated 13 Jul 2001.
  Exhibit I.  Letter, Counsel, dated 20 Jul 2001, w/atchs
  Exhibit J.  Letter, USAF/JAG, dated 30 Jul 2001.
  Exhibit K.  Letter, AFBCMR, dated 6 Aug 2001.
  Exhibit L.  Letter, Counsel, dated 8 Aug 2001.




                                   PEGGY E. GORDON
                                   Panel Chair