RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  00-03245
            INDEX CODE:  128.10

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

The debt of $4439.73 incurred during his seven-month attendance at the
United States Air Force Academy be removed.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The debt was caused by his placement on involuntary leave without  pay
status for 38.5 days.  The debt is unjust  as  he  was  put  on  leave
without pay status against his wishes after he graduated from the USAF
Academy Preparatory School Class of 1999 and  before  he  entered  the
Cadet Wing in the USAFA class of 2003.  Additionally, he was told that
this time would not count against him.  He was unaware of any  changes
to this statement until his pay was garnished.  He also states that he
attended the Air Force Academy from July 1999 to February 2000.   When
he voluntarily resigned from the Academy in February 2000 and reverted
back to his prior enlisted status of senior  airman,  he  was  charged
$4439.73.  This is unjust since AFI 36-2020 clearly states that if the
member serves on active duty he will not have to repay  any  costs  or
fees.

In support of his application, he provided copies  of  his  Leave  and
Earning Statements from the Air Force Academy  Preparatory  School,  a
“Statement of Member Loss,” and a copy of the  Air  Force  Instruction
(AFI) pertaining to  Disenrollment  of  Academy  Cadets.   Applicant's
complete submission, with attachments, is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 8 January 1997.

In May 1999, the  applicant  graduated  from  the  Air  Force  Academy
Preparatory School and was accepted as a Basic Cadet in the Air  Force
Academy.  Because Basic Cadets were not scheduled  to  report  to  the
Academy for basic training until 1 July 1999, the applicant was placed
on leave with pay status.  On 25 January 2000, the applicant  resigned
from the Air Force Academy and requested that  he  be  separated  from
cadet status and transferred back to active duty to  complete  an  11-
month  Prior  Service   Commitment.    On   2   February   2000,   the
superintendent accepted the resignation and approved the transfer back
to active duty.

The debt of $4,439.73 cited by the  applicant  was  for  two  separate
payroll deductions, the first for advance leave  and  the  second  for
advance pay.

    1.  The applicant was placed on advance leave and received pay for
38.5 days from May  1999,  when  he  graduated  from  the  Preparatory
School, until 1 July 1999 when he became a basic cadet.

    2.  Once the applicant became  a  Basic  Cadet,  he  was  advanced
$2,311.16 to off set the initial cost of his computer, clothing issue,
barber,  dry  cleaning,  laundry,  tailor,  text  books,  allied  arts
concerts entertainment, and media publications.

According to AFI 36-3003, Table  6  Rule  9  and  Preparatory  Schools
policies, Academy Preparatory School graduates, that are  accepted  to
the U.S. Air Force Academy, are given the  option  to  take  voluntary
advance leave with pay or remain at the school and  be  assigned  work
details prior to entering the U.S. Air Force Academy.   The  applicant
voluntarily chose to go on advance leave.

The applicant voluntarily resigned from  the  Air  Force  Academy  and
because his remaining Prior Service commitment was less than one year,
it would not have been cost  effective  to  return  the  applicant  to
active duty.  However, the applicant specifically requested that he be
allowed to complete his Prior Service Commitment.  The  applicant  was
then assigned to Goodfellow AFB,  TX.   He  is  currently  serving  on
active  duty  in  the  grade  of  staff  sergeant  (E-5)  and  has  an
established date of separation of 6 March 2006.

_________________________________________________________________

AIR FORCE EVALUATION:

The Staff Judge Advocate, HQ USAFA/JA, reviewed  the  application  and
states that the debt  of  $4439.73  that  the  applicant  believes  he
incurred during his seven-month  attendance  at  the  U.S.  Air  Force
Academy was  not,  in  fact,  one  charge  but  two  separate  payroll
deductions.

According to AFI 36-3003, Table  6  Rule  9  and  Preparatory  Schools
policies, Academy Preparatory School graduates, that are  accepted  to
the U.S. Air Force Academy, are given the  option  to  take  voluntary
advance leave with pay or remain at the school and  be  assigned  work
details prior to entering the U.S. Air Force Academy.   The  applicant
voluntarily chose to go on advance leave.

In reference to the applicant stating that AFI 36-2020 clearly  states
that if the member serves on active duty he will not have to repay any
costs or fees; they note, in actuality, AFI 36-2020, paragraph  8.1.3,
explains  the  Secretary  of  the  Air  Force  normally  requires  all
disenrolled or separated cadets to  complete  obligations  by  serving
active duty rather than reimbursing the Government  for  the  cost  of
their education.  The  applicant  had  not  entered  his  second-class
academic  year  and  therefore  was  not  required  to  reimburse  the
government for the cost of his education  (approximately  $30,000  per
year).  The  amount  charged  to  the  applicant  was  for  a  initial
admission deposit required by all appointees to  defray  the  cost  of
uniforms, textbooks, computers, etc. and  not  for  the  cost  of  his
Academy education.

The applicant voluntarily resigned from  the  Air  Force  Academy  and
because his remaining Prior Service Commitment was less than one year,
it would not have been cost  effective  to  return  the  applicant  to
active duty.  However, the applicant specifically requested that he be
allowed to  complete  his  Prior  Service  Commitment.   He  was  then
assigned to Goodfellow Air Force Base, Texas.

There is no indication that the applicant was forced to  take  advance
leave with pay prior to entering the Air  Force  Academy  as  a  basic
cadet.  He  served  on  active  duty  before  coming  to  the  Academy
Preparatory School and should have been well aware of the leave system
and policy of advance paid leave.  Furthermore, the debt incurred  was
not for the cost of his education but rather items  such  as  uniforms
and his computer that are not acceptable  for  resale  and  cannot  be
turned in for credit towards his admissions deposit.  Therefore,  they
recommend denial of applicant’s request.

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

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and  states  that  the
cornerstone of USAFA/JA’s letter is based in error.  Specifically,  he
did not receive pay during that timeframe; however, he did  receive  a
Leave and Earning Statement (LES) reflecting  a  payment  during  this
time.  Subsequent to the  issuance  of  this  LES,  finance  personnel
informed him and all other prior  enlisted  cadets  that  they  should
ignore this payment annotation, as it was in error.   He  states  that
the items listed were purchased  by  the  USAFA  and  issued  to  him.
Although the items, in his opinion, were quite excessive in  cost,  he
did receive them.  He notes, AFI  36-3003,  Table  6  Rule  9  address
excess leave, not advanced leave as  reported  by  USAFA/JA.   He  was
placed  in  excess  leave  status  as  reflected  by   nonpayment   of
entitlements/base pay.  He agrees with USAFA/JA’s assessment  that  he
should not have to pay for the cost of education.  He asks, what  AFI,
policy letter, etc. is published and issued to cadets  informing  them
that there is an upfront initial admission deposit required  of  them?
He states that this appears to be a loophole of  sorts  to  allow  the
USAFA to collect money that might  in  turn  become  an  out-of-pocket
expense if a cadet resigns.  He states the USAFA convinced DFAS to pay
for this deposit and  take  it  out  of  his  pay.   Because  the  two
institutions  have  different  pay  categories,  DFAS  translated  the
deposit into advance pay.  He further states that he did  not  request
to be allowed to complete  his  Prior  Service  Commitment.   He  did,
however, request to be returned to active duty for the express purpose
of reenlisting.   He  reenlisted  for  six  years  on  6  March  2000.
Therefore, he recommends that  the  portion  of  the  debt  listed  as
payment during an advance leave period be canceled, as he was not paid
and he was in an excess leave status.

Applicant's  complete  response,  with  attachments,  is  attached  at
Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant  to  the  Board’s  request,  the  Chief  Pay   Services,   HQ
USAFA/FMFC, reviewed the application and states  that  cadets  receive
advance pay for clothing and equipment purchases.   This  advance  and
the  collection  procedures  are  authorized  by  the  DOD   Financial
Management Regulation, Vol 7A, Chapter 38.   The  amount  advanced  is
deducted from the cadet’s monthly pay.  If a  cadet  is  involuntarily
discharged, the balance owed is canceled.  However, when  a  cadet  is
discharged voluntarily the debt is reported as  a  debt  owed  to  the
United States.

Applicant received  a  $4,583  advance  pay  in  September  1999.   On
8 February 2000, Special Orders AC-72 returned him to active duty  and
classified his disenrollment as voluntary.  Therefore,  based  on  the
voluntary resignation, the collection of the advance pay debt is valid
per DOD FMR Vol 7A, 381103.

A complete copy of the evaluation, with  attachment,  is  attached  at
Exhibit G.

Upon review, the Board deferred making a decision pending  receipt  of
additional information in the case.  Pursuant to the Board’s  request,
DFAS-POCC/DE stated that Department of  Defense  Financial  Management
Regulation (DODFMR) Vol. 7A, Chapter 38, para  3811  states  each  new
cadet will be advanced money to cover the cost of initial clothing and
equipment.  The amount is deducted in installments  from  monthly  pay
until fully collected.  If the cadet is discharged  before  graduation
and before the total is repaid, they should turn in  as  much  of  the
clothing & equipment as necessary to liquidate the  balance.   If  the
cadet is voluntarily discharged the uncollected balance is a  debt  to
the United States.  They can reasonably believe applicant was  briefed
what this advance was for and the obligation to repay it.

In reference to applicant requesting relief of a debt  due  to  excess
leave stating he was in a leave without pay status during May  &  June
1999, DFAS indicates that the applicant was in  a  pay  status  during
that time.  He was paid for this  period  as  shown  on  his  Leave  &
Earning Statements (LES).  In May and June there was money  held  back
at the applicant’s request, $350 and $675 respectively.  This pay  was
released to applicant on his end of month July 1999 pay.  He took  and
was charged 43 days of regular leave for the period 19 May through  30
June 1999.  This put him into an excess leave status of 35 days plus 3
days non-accrual penalty.  Therefore, the excess leave debt is a valid
debt.

In reference to the term “cost of education”,  AFI  36-2020  specifies
this as tuition, books, supplies etc.  The DODFMR regulates cadets are
advanced money to purchase  uniforms  &  equipment  (their  computer).
This would indicate the advance pay debt  would  not  fall  under  the
category of “cost of education” but is  a  separate  issue.   After  a
review of the information available to them they concur with  the  Air
Force Academy and recommend applicant’s request be denied.

A complete copy of their evaluation, with attachments, is attached  at
Exhibit H.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant states that it is true that he is requesting a refund of  an
advance pay debt of $4,583.26 from his attendance  at  the  Air  Force
Academy.  He was not briefed that he was being advanced any money.  He
was simply issued uniforms, etc., which he returned as  much  as  they
allowed him to when he resigned.  He notes that the  Academy  has  not
provided any signed or unsigned documents proving that he was  briefed
that he  was  being  advanced  any  money.   DFAS  has  completed  the
involuntary removal of the money from  his  paycheck  ending  in  June
2002, without ever checking the actual validity of the alleged debt.

It is also true that he is requesting relief of an alleged debt due to
excess leave.  Unlike what the memo states, he was not in a pay status
during May & June 1999.  In accordance with AFI 36-3003  Section  6.8,
Table 6, Rule  9,  “Excess  leave  begins  after  ordinary  leave”  is
exhausted.  Section 6.8.4 explains the rules of excess leave.

In his opinion, DFAS is misinformed  as  to  his  status  during  this
period.  Since DFAS is unfamiliar with the Academy’s finance policies,
they requested information from the Air Force Academy.  The Air  Force
Academy provided them with the erroneous information that  caused  the
problem in the first place, and DFAS forwarded the memorandum  without
actually checking the validity of the information.   In  a  23  August
2002 telephone conversation, Ms. R--- G--- of DFAS  explained  to  him
that  DFAS  took  over  the  Academy’s  cadet  finance  operations  at
approximately the same time he was at the Academy.   She  stated  that
DFAS did not check the information that the Academy provided them.  It
is likely that this produced confusion and  resulted  in  his  records
being incorrect.

In reference to the term “cost of education,” the memo interprets  AFI
36-2020 as separating “cost of education” from uniforms and equipment.
 In reality, there is no specification as to what expenses fall  under
which term.   The  terms  used  leave  the  instruction  open  to  the
interpretation of the reader.

Finally, he challenges DFAS and  the  Air  Force  Academy  to  produce
signed, legal documentation proving that he owes them the  money  they
have removed from his base pay over the  last  two  years.   He  is  a
deployed E-5 with a young child  and  he  would  argue  that  “We  can
reasonably believe” is not sufficient proof to warrant  removing  over
$6,000 from his pay.

A complete copy of applicant’s response, with attachments, is attached
at Exhibit J.

_________________________________________________________________

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.    After   reviewing   the
circumstances surrounding the applicant’s resignation from the  United
States Air Force Academy and the documentation submitted in support of
his appeal, we find no error or injustice.  It appears that the  debts
established for advance pay for  equipment  and  leave  cited  by  the
applicant were properly established in accordance with  the  governing
regulations, both Air Force and Department of Defense,  and  the  law.
The applicant claims he did not sign acknowledgement that he was in an
excess leave status and would have to repay the cost of the  leave  as
well as the cost of clothing and  equipment  provided  to  him  as  an
Academy cadet and he should not be required to repay the debts.   This
is not the correct standard.  In our view, all Air Force  members  are
on constructive notice concerning the governing laws  and  regulations
pertaining to the establishment of such debts.   Other  than  his  own
assertions, the applicant has provided no evidence showing he did  not
receive the clothing and equipment  or  pay  for  the  advance  leave.
While the applicant may believe his circumstances are unfair, there is
no  indication  in  the  record  before  us  showing  he  was  treated
differently from other similarly situated  members.   Accordingly,  we
are in agreement with the opinions and comments of the appropriate Air
Force  offices  and  adopt  their  rationale  as  the  basis  for  our
conclusion that the applicant has not been the victim of an  error  or
injustice.  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  this  application  in
Executive Session on 7 February 2003, under the provisions of AFI  36-
2603:

                 Mr. John L. Robuck, Panel Chair
                 Mr. Clarence D. Long, III, Member
                 Ms. Marcia Jane Bachman, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated, 19 Oct 00, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, HQ USAFA/JA, dated 7 Feb 01, w/atchs.
      Exhibit D. Letter, AFBCMR, dated 9 Mar 01.
      Exhibit E. Applicant’s Response, dated 27 Mar 01, w/atchs.
      Exhibit F. Letter, AFBCMR, dated 3 Aug 01.
      Exhibit G. Letter, HQ USAFA/DPY, dated 6 Jul 01, w/atch.
      Exhibit H. Letter, DFAS-POCC/DE, dated 29 May 02.
      Exhibit I. Letter, AFBCMR, dated 5 Aug 02, w/atch.
      Exhibit J. Applicant’s Response, dated 26 Aug 02.




                             JOHN L. ROBUCK
                             Panel Chair