RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  BC-2002-03145
                             INDEX CODE 128.10
                             COUNSEL:  Nate Coulter

                             HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

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

_________________________________________________________________

APPLICANT CONTENDS THAT:

She did not “drop out” of the program; she was medically  disqualified
for active duty. The medical disqualification was entirely unsolicited
on her part and she did everything in her power to  comply  with  what
was asked of her.  The military’s lethargy, negligence, ineptness  and
inefficiency   inordinately   delayed   the   finalization   of    her
disqualification and discharge process. She and  her  husband  had  no
idea what they should  do  and  she  was  prevented  from  entering  a
civilian residency program for 2000. She lost  a  year  in  which  she
could have been participating in a residency and earning income.

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

_________________________________________________________________

STATEMENT OF FACTS:

The  following  information  was  extracted  from  official  documents
provided by the applicant, her military records, and the Secretary  of
the Air Force Personnel Council (SAF/PC) case file.

The applicant entered the HPSP on  7  Aug  95  and  had  an  estimated
completion date of Jun 00. She attended the University of Arkansas for
Medical Sciences in Little Rock, AR.

The 1995 Armed Forces HPSP contract stipulates in  paragraph  6c  that
should an individual become unable to commence the  period  of  active
duty service commitment (ADSC) specified or become unable to  complete
the medical education program, the individual agreed to reimburse  the
US in one lump sum for the total cost of advanced  education  paid  by
the US government  as  specified  in  Title  10,  USC,  Section  2005.
Paragraph 10 states that “If I . .  .  fail  to  meet  the  applicable
standards of the United States Air Force (including physical fitness),
or if I  otherwise  fail  to  complete  my  obligation(s)  under  this
agreement, then . .  .”  the  Air  Force  may,  among  other  options,
separate the individual and recoup the  total  cost  of  the  advanced
education in lieu of active duty.

Individuals selected for active duty residency training  are  required
to complete an Entry on Active Duty (EAD)  physical  the  year  before
actually entering active duty. The applicant had her EAD  exam  on  22
Jul 99. Apparently, the applicant had begun experiencing migraines  in
Feb  98  but  had  continued  taking  classes.  Her  pre-commissioning
physical brought her condition to USAF  attention.  Her  function  was
reduced during an attack and medications were required.

On 23 Dec 99, the applicant was selected by  the  1999  Joint  Service
Graduate Medical Education Selection Board  (JSGMESB)  to  complete  a
categorical residency in pediatrics at Keesler AFB, her fifth training
location preference, in a  deferred  training  status  (deferred  from
entering active duty to complete the residency training). Her training
was to begin on 1 Jul 00 and end on 30 Jun 03.  As  a  result  of  her
selection for training in an active duty program, she was  advised  to
withdraw from the civilian match.

On 13 Jan 00, HQ ARPC/SGP advised the applicant  that  review  of  her
physical exam was  completed  and  entries  identified  a  history  of
migraine headaches that could be disqualifying for  military  service.
The applicant was experiencing debilitating migraine  headaches  about
twice weekly which lasted for up to three days each. The applicant was
selected for  entry  into  active  duty  for  an  evaluation  of  this
diagnosis to determine if a medically disqualifying condition existed.
 She was requested  to  complete  a  full  evaluation  by  a  military
provider to determine her fitness for military service.  According  to
HQ AFPC/DPAME, the applicant was reminded on 7 Mar 00 to contact  ARPC
regarding the status of her neurology consultation requested on 13 Jan
00. A brain MRI on 18 Apr 00 was normal.

On 4 May 00, 18 days before graduation, the  applicant  was  medically
disqualified from the HPSP and her benefits were stopped. On 8 Jun 00,
HQ AFPC/DPAME  recommended  to  HQ  ARPC/SGX  that  the  applicant  be
discharged at the earliest date and recoupment action be taken.  In  a
memo dated 30 Aug 00, the applicant indicated  she  had  been  plagued
with migraine headaches for about two and one-half years and continued
to experience debilitating migraine headaches on average about twice a
week and lasting up to three days.

On 2 Oct 00, HQ ARPC/DPPS advised the applicant that the ARPC  Surgeon
determined she  was  medically  disqualified  for  continued  military
service due to debilitating  migraine  headaches  and  she  was  being
recommended for discharge. On 15 Oct 00, the  applicant  tendered  her
resignation and acknowledged her understanding that the funds expended
for her education may be recouped. On 18 Oct 00, she acknowledged that
the Air Force had expended funds for educational assistance  and  that
recoupment may occur if she voluntarily separated or was involuntarily
discharged for a physical disqualification,  in  accordance  with  the
terms of her agreement with the Air Force.

A 30 Oct  00  legal  review  by  the  HQ  ARPC  staff  judge  advocate
recommended to the ARPC commander that the applicant’s resignation  be
approved and recoupment be waived. On 31 Jan 01, HQ  ARPC  recommended
that SAF/PC accept the applicant’s resignation and  recoupment  action
be waived. SAF/PC considered the applicant’s case on  16  Feb  01  and
recommended  that  her  honorable  discharge  be  approved  and   that
approximately $34,338  in  direct  educational  expenses  be  recouped
(statute at that time precluded recoupment of an additional $38,456 in
stipends). SAF/PC noted that a signed copy  of  the  applicant’s  FY95
HPSP contract could not be located despite a diligent search by  ARPC,
AFIT and AFPC.

On 21 Feb  01,  the  Secretarial  designee  approved  the  applicant’s
resignation and directed her discharge along with recoupment of  funds
expended on her HPSP education. The applicant was discharged from  all
appointments on 1 Mar 01.

As a result of  her  discharge,  the  applicant  incurred  a  debt  of
approximately $34,338 for tuition, books and supplies.  The  applicant
apparently advised the Defense Finance and Accounting  Service  (DFAS)
that she was unable to make payments of $368.10 towards the debt. DFAS
advised her to file an AFBCMR appeal.  On 6 Aug  02,  the  applicant’s
counsel at that  time  forwarded  a  letter  to  a  collection  agency
contending the debt was in dispute.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPAME provides a generic copy of the 1995 HPSP  contract  they
assert the applicant  would  have  signed  accepting  the  scholarship
program. They claim that, consistent with Title 10, USC, Section 2005,
the HPSP contract [provided by DPAME]  states  in  paragraph  6c  that
“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 US government as specified  in  10  USC
2005.” [Note: However, paragraph 6c of the generic  contract  provided
by DPAME does not specify physical disqualification--see Statement  of
Facts and paragraph 10 of the  HPSP  contract  DPAME  provided.  DPAME
acknowledged their misquote via email.] The applicant  agreed  to  the
terms of  the  contract  and  should  be  required  to  reimburse  the
government. Denial is recommended.

A complete copy of the evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air  Force  evaluation  was  forwarded  to  the
applicant on 27 Nov 02 for review and comment within 30 days.

On 6 Mar 03, sanitized copies of a 12 Oct 00 SAF/MI memorandum  and  a
21 Aug 02 legal review regarding two previous and separate HPSP  cases
were mailed to the applicant for review and comment  within  30  days.
The transmittal letter also asked the applicant to provide  the  Board
with a copy of her signed HPSP contract.

A copy of the AFBCMR letter, with attachments, is at Exhibit E.

The applicant indicated she did not have immediate access to her  HPSP
contract and believed her counsel had  a  copy.  She  added  that  the
military deliberately withdrew her from  the  civilian  match  program
knowing she would be medically disqualified  from  the  military.  The
military’s intentional and inept delay regarding her  disqualification
was unjust because she was prevented  from  earning  a  pediatrician’s
average annual income of $140,000. Since she did not earn income as  a
doctor for one year, she believes it would  be  fair  to  forgive  the
debt. The medical disqualification was  entirely  unsolicited  on  her
part.  Also, she never “dropped out,” she was medically  disqualified.
She wants a swift and just resolution.

The applicant’s complete response, with attachment, is at Exhibit F.

On 14 Apr 03, copies of the Air Force Evaluation, the  AFBCMR  letter,
and the applicant’s response were forwarded to the  counsel  indicated
in the applicant’s rebuttal.  The transmittal  letter  requested  that
counsel forward a copy of the applicant’s HPSP contract, and any other
comments he wished to make, to this office within 30 days.  As of this
date, counsel has submitted no response.

_________________________________________________________________

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 to warrant waiving or voiding  the
applicant’s HPSP debt. Section 2005 of Title 10, USC, as referenced in
paragraph 6c of the  contract  provides  the  statutory  authority  to
recoup  for  advanced  educational  assistance.   Pursuant   to   this
authority, paragraph 10 provides that if a member fails  to  meet  the
applicable standards of the US Air Force, including physical  fitness,
the Air Force may, at its option, separate the member and  recoup  the
total cost of advanced education in lieu  of  active  duty.  When  the
applicant entered into the HPSP contract, she was  on  notice  of  the
requirement that she must  meet,  and  continue  to  meet,  Air  Force
physical standards. The contract additionally placed the applicant  on
notice of  the  consequences  of  being  found  physically  unfit  for
service. The Air  Force  made  the  determination  that  she  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
true the applicant’s disqualifying condition was  not  the  result  of
misconduct or voluntary action, it is also true  the  condition  arose
through no fault of the government. The issue is not one of  blame  or
fault. The parties to the contract entered into a clear document which
provided the applicant would reimburse the government for the costs of
her medical education up  to  that  point  if  she  became  physically
disqualified. The Air Force has routinely asserted its right to recoup
the costs of education provided to medically disqualified  individuals
under the HPSP when their medical condition  does  not  preclude  them
from practicing their profession. The applicant will benefit from this
education for years to come. We believe that the  US  taxpayer  should
receive the benefit of the bargain into  which  it  entered  with  the
applicant. While the applicant’s condition precludes her from  serving
in the military, she should not obtain  a  windfall  because  of  that
fact. Further, the applicant has not substantiated her allegation that
the  Air  Force  deliberately  delayed  the  evaluation  process   and
intentionally precluded her  from  earning  a  year’s  income  in  the
civilian sector. The applicant has submitted  no  convincing  evidence
that she was incorrectly diagnosed, that the  medical  processing  was
unduly  or  intentionally  protracted,  or  that   she   was   treated
differently than any other HPSP recipient similarly situated. In  view
of the above and absent persuasive evidence to the contrary,  we  find
no compelling basis to recommend granting the relief sought.

_________________________________________________________________

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 12 June 2003 under the provisions of AFI 36-2603:

                 Mr. Thomas S. Markiewicz, Vice Chair
                 Mr. Joseph A. Roj, Member
                 Ms. Cheryl Jacobson, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2002-03145 was considered:

   Exhibit A.  DD Form 149, dated 14 Feb 02(received 18 Nov 02),
                      w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPAME, dated 20 Nov 02.
   Exhibit D.  Letter, SAF/MRBR, dated 27 Nov 02.
   Exhibit E.  Letter, AFBCMR, dated 6 Mar 03.
   Exhibit F.  Letter, Applicant, dated 30 Mar 03, w/atch.
   Exhibit G.  Letter, AFBCMR, dated 14 Apr 03.




                                   THOMAS S. MARKIEWICZ
                                   Vice Chair