RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-02612
            INDEX NUMBER:  128.10
      XXXXXXXXXXXXX    COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  No

_______________________________________________________________

APPLICANT REQUESTS THAT:

His debt to the United States government in the amount of $107,000  for
his education at the United States Air Force Academy  (USAFA)  incurred
due to his disenrollment  for  failure  to  meet  weight  standards  be
waived.

_______________________________________________________________

APPLICANT CONTENDS THAT:

The government was wrong in assessing  him  a  debt  of  $107,000.   He
should have never been put in the position leading to the debt.  He was
overweight when he entered the Academy  as  a  Basic  Cadet.   When  he
signed his commitment letter  at  the  beginning  of  his  “two-degree”
(junior year), he was still overweight.  He was disenrolled  only  nine
months later.  He contends that if he was overweight, he  should  never
have been allowed to commit.  He should have been disenrolled after his
first two years, at which time he would not have  incurred  a  penalty.
The fact that he was able to commit while overweight  set  him  up  for
failure, and, hence, the debt he has incurred.  He also believes he was
treated unfairly because although  he  was  on  the  weight  management
program (WMP) his entire time at the Academy, it was only given serious
consideration after he signed his commitment.   During  his  first  two
years, he weighed in every month in accordance with the requirements of
the WMP, but it did not matter if he made his weight or  not.   He  was
never punished for failure to lose at least five pounds per month.

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

_______________________________________________________________

STATEMENT OF FACTS:

According to information provided in the evaluation provided by the Air
Force office of primary responsibility, on 16 Sep 01, a Military Review
Committee (MRC) recommended that the applicant be disenrolled from  the
USAFA for failing  to  meet  Air  Force  and  USAFA  weight  management
standards (Examiner’s Note: A  detailed  overview  of  the  applicant’s
weight management program performance is contained  in  the  Report  of
Recoupment Hearing, so tabbed).  On     2 Oct  01,  the  Commandant  of
Cadets  concurred  with  the  findings  of  the  MRC  and   recommended
disenrollment.  On 8 Nov 01,  the  USAFA  Superintendent  notified  the
applicant that he was recommending to the Secretary of  the  Air  Force
(SECAF) that the applicant be disenrolled for failing  to  meet  weight
management standards and that the applicant be  required  to  reimburse
the government for the cost of his Academy education.

On 13 Dec 01, pursuant to Section 2005, Title 10,  United  States  Code
(USC), the applicant was given the right  to  dispute  his  educational
debt and a Hearing Officer (HO) was appointed  to  investigate  if  the
applicant’s debt was calculated correctly and if the  behavior  forming
the basis for the applicant’s disenrollment constituted misconduct or a
voluntary act.  On 15 Feb 02, the HO found under  10  USC  2005  (a)(3)
that the debt was correctly calculated and that while his behavior  did
not qualify as misconduct within the meaning of 10 USC 2005 (a)(3), his
actions were considered voluntary.

On 27 Mar 02, SECAF  approved  the  recommendation  and  directed  that
applicant reimburse the US Government for the cost  of  his  Air  Force
Academy education pursuant to Section 2005, Title 10, USC.

_______________________________________________________________

AIR FORCE EVALUATION:

HQ  USAFA/JA  recommends  denial  of  the  applicant’s  request.    The
applicant was given  numerous  opportunities  to  contact  the  Hearing
Officer to appeal the recommendation of recoupment and raise issues  of
concern, but he chose  not  to  respond.   The  Department  of  Defense
interprets “voluntary” as whatever the service member did or did not do
to prompt a  separation.   So  long  as  there  is  counseling  and  an
opportunity to overcome deficiencies,  and  so  long  as  persons  with
medically diagnosed problems that interfere with  weight  reduction  or
maintaining physical fitness may not be separated  for  weight  control
failure or lack of physical fitness, the failure to meet  standards  is
deemed volitional.  In this case, the applicant received over  two  and
one-half years of counseling on  his  weight  and  was  enrolled  in  a
program specifically designed to help him reduce his weight.

The complete evaluation, with attachments, is at Exhibit C.

_______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded  to  the  Air  Force  evaluation  and  provided
additional evidence in support of his appeal.  He provides a copy of  a
memo that he contends shows  he  was  entered  into  the  Cadet  Weight
Monitoring Program on 21 Jan 99, prior to 15 Sep 00.  He contends  that
this proves he was overweight long  before  he  signed  his  commitment
letter.  He states that he never should have been allowed to  sign  the
letter.  The applicant also challenges the statement that he signed  an
oath of office on 30 Jun 98.  He indicates that it is common  knowledge
at the Academy that you can resign up until  the  start  of  your  two-
degree (junior) year and not have to serve on active duty or  reimburse
the government.  He states that he knows at least a dozen  people  that
left after their first or second year without  incurring  any  penalty.
If his being on the WMP had been given  the  proper  attention  in  his
first or second year, he would have realized how serious it was and  he
could have taken the necessary action to fix the problem or  leave  the
Air Force.  Finally, the  applicant  disputes  the  assertion  that  he
failed to contact the Hearing Officer and appeal the recommendation  of
recoupment.  He attaches a letter that  he  was  sent  to  him  by  the
Hearing Officer acknowledging receipt of a letter he sent appealing the
decision.

The applicant indicates that he has always been big and it didn’t  seem
to matter until it was too late for him to make a lifestyle change.  He
hopes that the Board can see that he is being  punished  for  something
that is not his fault.

The applicant’s complete response, with attachments, is at Exhibit E.

_______________________________________________________________

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 error or injustice.  We took notice of the applicant's
complete submission in judging the merits  of  the  case;  however,  we
agree with the opinion and recommendation of the Air  Force  office  of
primary responsibility and adopt their rationale as the  primary  basis
for our conclusion that the applicant has not been  the  victim  of  an
error or injustice.  The Board is also not  persuaded  that  after  two
years at the Air Force Academy the  applicant  was  not  aware  of  the
gravity of his failure to maintain weight standards.  Indeed, based  on
the evidence he has provided, it appears that he does  not  acknowledge
that he had any responsibility to meet standards.   Therefore,  in  the
absence of evidence to the contrary, we find  no  compelling  basis  to
recommend granting the relief sought in this application.

______________________________________________________________

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 Docket Number 02-02612 in
Executive Session on 23 October 2002, under the provisions of  AFI  36-
2603:

      Mr. Roscoe Hinton, Panel Chair
      Mr. James W. Russell, III, Member
      Mr. James E. Short, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 6 Aug 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, USAFA/JA, dated 30 Aug 02, w/atchs.
    Exhibit D.  Letter, SAF/MIBR, dated 20 Sep 02.
    Exhibit E.  Letter, Applicant, dated 24 Sep 02, w/atchs.




                                   ROSCOE HINTON
                                   Panel Chair