RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  02-00848
            INDEX CODE 128.10
            COUNSEL:  None

            HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

The debt he incurred as a result of his  participation  in  the  Armed
Forces Health Professions Scholarship Program (HPSP) be cancelled.

_________________________________________________________________

APPLICANT CONTENDS THAT:

During  the  scholarship  he  developed  insulin  dependent   diabetes
mellitus. Chapter  11  of  the  contract  outlines  the  reasons  that
collection of this money may occur.  None of these  reasons  apply  to
him. He developed his condition involuntarily which was not in any way
related  to  substandard  duty  performance,  misconduct,   moral   or
professional dereliction, and no inconsistency with national  security
was present. He should be excused from the debt.

The applicant’s complete submission, with attachments, is  at  Exhibit
A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant  was  commissioned  a  2nd  lieutenant  and  signed  his
HPSP/Financial Assistance Contract on 24 Feb 95. The government  would
pay for three years of medical education and the applicant, in return,
would serve five years  on  extended  active  duty.  He  attended  the
University of Osteopathic Medicine and Health Sciences in Des  Moines,
IA.

Based on a diagnosis of insulin dependent diabetes mellitus on  19 Apr
96, the applicant  was  notified  on  27 Apr  96  that  he  was  being
recommended for discharge from  HPSP  and  extended  active  duty  for
physical disqualification.  His scholarship benefits were discontinued
effective 30 May 96. In response to HQ ARPC/DPAD’s 17 Jun  97  letter,
the applicant indicated that he did not want to have his case  entered
into the Disability Evaluation System  (DES),  was  not  applying  for
transfer to the retired reserve and was not tendering his resignation.
HQ ARPC/JA found the proposed discharge legally sufficient  on  4  Feb
98, recommending the applicant be discharged and the HPSP expenditures
be recouped. On 8 May 98, the Secretary of  the  Air  Force  Personnel
Council (SAFPC)  directed  the  applicant’s  honorable  discharge  and
recoupment of the HPSP funds. By Reserve  Order  No.  CL-055,  he  was
discharged from all Air Force appointments effective 14 May 98.

On 18 May 98, HQ ARPC/DPAD advised the applicant that the Secretary of
the Air Force did not excuse his indebtedness. On 13 Jun  98,  he  was
notified that he had incurred a debt of $22,756.16 as a result of  his
HPSP participation.  According to a DFAS statement  dated  22 Jan  02,
provided by the applicant at Exhibit A, he has a remaining balance  of
$25,201.79.

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AIR FORCE EVALUATION:

AFIT/CIM provided their rationale for recommending denial.

A complete copy of the evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In an undated letter, the applicant provided  additional  remarks  but
requested that his case be temporarily  withdrawn  so  that  he  could
obtain additional evidentiary and legal support.

In a  3  Jun  02  letter,  the  applicant’s  state  senator  indicated
agreement  that  the  development  of  diabetes  was   not   purposely
contracted and was not one of the stated reasons  for  which  the  Air
Force could claim reimbursement for scholarship money.

The applicant submitted additional comments, which were  forwarded  by
his Congressional Representative to the AFBCMR  Staff.  The  applicant
contends a lawyer advised him that the recoupment action is  erroneous
and not supported by the contract. He did not meet  the  criteria  for
recoupment because he did not voluntarily develop diabetes. He was not
professionally  derelict  or  guilty  of  misconduct,  nor   was   his
performance substandard.

The applicant’s responses and the state senator’s letter are  provided
at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAG notes the applicant is correct that [paragraph 11] of  his
contract did not obligate him to repay the  costs  of  his  education.
However, his assertion that recoupment for advanced education  can  be
made only under these  circumstances  is  incorrect.  Title  10,  USC,
Section 2005(a)(4) as referenced  in  paragraph  6c  of  the  contract
provides the statutory authority to recoup  for  advanced  educational
assistance. Pursuant to this authority, paragraph 10 was  included  in
the applicant’s contract, which provided he must meet and continue  to
meet Air Force physical standards. This is the contractual basis  that
made the applicant subject to recovery for failing to  serve  out  the
terms of his contract, not paragraph 11. Paragraph 10  placed  him  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, as it was required to
do, and followed the express terms of the contract  thereafter.  While
it is true that the applicant’s  disqualifying  condition  was  not  a
result of misconduct or voluntary action, it is  also  true  that  the
condition arose through no fault of the government.  The issue is  not
one of blame or fault. Here the parties to the contract entered into a
clear document that provided that in  the  eventuality  the  applicant
became physically disqualified, he would reimburse the government  for
the costs of his medical education  to  that  point.   Taxpayers  have
given the applicant substantial monies for his education from which he
will benefit for years to come. To permit  him  to  benefit  for  this
education for years, at no cost to him,  would  amount  to  his  being
unjustly  enriched.   In  situations  where  a  disqualifying  medical
condition would prohibit an individual from using his or her education
to earn a livelihood, then perhaps equity and fairness would  militate
against recoupment. The applicant’s  disqualifying  medical  condition
does not prevent him from using his government-financed  education  to
pursue a profession for personal gain. As he indicated, he is a “fully
functioning  physician”  and  the  government  is  entitled   to   the
enforcement of its contract to be reimbursed for educational expenses.
 Under these circumstances, JAG finds no error  or  injustice  to  the
applicant and recommends denial.

A complete copy of the evaluation is at Exhibit F.

_____________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL EVALUATION:

A complete copy of the additional advisory and sanitized copies  of  a
SAF/MI memorandum and a Record of Proceedings regarding the  decisions
on two previous HPSP cases were mailed to the applicant on 28  Aug  02
for review and comment within 30 days.  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 error or injustice. After a thorough  review  of  the
evidence  of  record  and  the  applicant’s  submission,  we  are  not
persuaded that he should be relieved of his HPSP debt. The applicant’s
contentions are duly noted; however, we do not find these  assertions,
in  and  by  themselves,  sufficiently  persuasive  to  override   the
rationale provided by HQ USAF/JAG. Title 10, USC, Section 2005 (a)(4),
and paragraph 10 of the  applicant’s  HPSP  contract  subject  him  to
recovery action for not serving out the terms  of  his  contract.  The
applicant did not ask for his  disqualifying  medical  condition,  but
neither is the Air Force culpable. The applicant was given substantial
taxpayer  monies  for  his  education  and  is  not  prohibited   from
practicing his profession for personal gain. He should not be unjustly
enriched by benefiting from his education for years to come at no cost
to him, and the government should not be deprived of  the  enforcement
of its contractual reimbursement in this case. We therefore adopt  the
rationale expressed as the basis for our decision that  the  applicant
has failed to sustain his burden of having suffered either an error or
an injustice. In view of the above and absent persuasive  evidence  to
the contrary, we find no compelling basis to  recommend  granting  the
relief sought.

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  issue(s)   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 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  17  October  and  6  November  2002  under  the
provisions of AFI 36-2603:

                 Mr. Jackson A. Hauslein, Jr., Panel Chair
                 Ms. Dorothy P. Loeb, Member
                 Ms. Rita S. Looney, Member

The following documentary evidence relating to AFBCMR Docket Number 02-
00848 was considered:

   Exhibit A.  DD Form 149, dated 27 Feb 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFIT/CIM, dated 28 Mar 02, w/atchs.
   Exhibit D.  Letter, SAF/MRBR, dated 5 Apr 02.
   Exhibit E.  Letter, Applicant, undated; Letter, State Senator,
               dated 23 Jun 02; and Letter, Representative, dated
               10 Jul 02, w/atchs.
   Exhibit F.  Letter, HQ USAF/JAG, dated 21 Aug 02.
   Exhibit G.  Letter, AFBCMR, dated 28 Aug 02.



                                   JACKSON A. HAUSLEIN, JR.
                                   Panel Chair