RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-01429
            INDEX NUMBER:  128.10
      XXXXXXXXXXXX     COUNSEL:  Samuel L. Martin

      XXX-XX-XXXX      HEARING DESIRED:  Yes

________________________________________________________________

APPLICANT REQUESTS THAT:

His indebtedness to the government generated by recoupment of the funds
expended for his education under the Armed  Forces  Health  Professions
Scholarship Program (AFHPSP) be removed from his records and  that  all
recoupment efforts against him be terminated.

________________________________________________________________

APPLICANT CONTENDS THAT:

Applicant’s counsel submits applicant’s appeal in a thirteen-page brief
of counsel, with exhibits.  Counsel  asserts  that  the  applicant  was
discharged from the Air Force due to the applicant’s statement that  he
is gay.  The Air Force’s action to recoup AFHPSP funds expended on  the
applicant  is  in  contravention  of   the   applicable   statute   and
regulations.  In circumstances such as the applicant’s,  recoupment  is
only allowed if there has been a  determination  that  the  officer  in
question made his statement of homosexual orientation for  the  purpose
of seeking separation.  Counsel states that such a determination is not
warranted in the applicant’s case and  that  applicant’s  records  show
that he maintained a  consistent  intent  and  desire  to  fulfill  his
service commitment to the Air force.

Counsel provides several examples of recommendations that describe  the
applicant’s  consistent  behavior  as  an  accomplished  and  dedicated
medical  student  and  reserve  officer.   Counsel  asserts  that   the
applicant did not realize he was gay until the summer of 1992 and  then
notified the Air Force in writing of his  homosexual  orientation.   In
his communications with the Air Force, applicant consistently expressed
his desire to continue to serve.

Counsel  contends  that  the  applicant’s  discharge  was  involuntary.
Counsel discusses the impact  of  this  action  on  the  applicant  and
concludes that to add the burden of recoupment  to  the  hardships  the
applicant experienced as a result  of  being  discharged  is  improper,
unwarranted, and unfairly punitive.  Based on Air Force policy that  if
no misconduct is found, recoupment may only be pursued if  the  service
member  has  sought  separation,  the  recoupment  action  against  the
applicant is improper.  Counsel states that the standard for recoupment
provides for reimbursement of scholarship funds only if  the  recipient
“voluntarily” fails to complete the period of active duty specified  in
the agreement that scholarship  recipients,  including  the  applicant,
sign.  Counsel further  asserts  that  the  Memorandum  of  the  Deputy
Secretary of Defense, John M. Deutch,  dated  17  May  94  (the  Deutch
Memorandum) applies the provisions defining recoupment specifically  to
the matter of  separations  due  to  homosexual  conduct.   The  Deutch
Memorandum explains that  absent  misconduct,  recoupment  is  improper
unless a service member made a statement of homosexual orientation with
the purpose of seeking separation.  Air Force Instruction (AFI) 36-3206
(19 Jun 98) provides for mandatory compliance with recoupment standards
identical to those announced in the Deutch  Memorandum.   Counsel  also
states the “standard of proof” as contained in AFI 90-301 is proof by a
Preponderance of the Evidence.

Counsel addresses three factors  cited  in  the  decisional  memorandum
prepared on his client’s case: that the statement  was  voluntary,  the
timing of the declaration, and the applicant’s age at the time.

          a.  The statement was voluntary.  Sending a letter  does  not
indicate intent to separate.  The conclusion that the letter  was  sent
for  the  purpose  of  separation  operates  as  an  avoidance  of  the
requirements of the Deutch memorandum.

          b.  The timing of the declaration and the applicant’s age  at
the time of declaration.  The timing of the applicant’s declaration and
his age at  the  time  do  not  indicate  intent  to  separate  on  the
preponderance of  the  evidence.   The  applicant’s  oral  and  written
statements all indicate intent and  desire  to  complete  his  term  of
service.

Counsel discusses the difference between the applicant’s case and  that
of a former Air Force member, Hensala, who was discharged on the  basis
of  his  homosexual   orientation.    Counsel   notes   the   following
differences:

          a.  Evidentiary Standard.  The court  applied  a  substantial
evidence standard in the Hensala case, which may be  the  standard  for
judicial review.  However, this does not change  the  preponderance  of
the evidence standard applicable in Air Force investigations.

          b.  Timing of declaration of  homosexual  orientation.   Capt
Hensala realized his homosexual orientation in 1988, but did  not  make
his statement to the service until 1994, six years later.  In contrast,
his client notified the Air Force right away.  Capt  Hensala  also  did
not notify the Air Force until shortly before his active  duty  service
was to commence.  Although this is also the case with  his  client,  it
was also the  time  of  his  client’s  realization  of  his  homosexual
orientation.

          c.  Consultation with  an  attorney.   The  court  took  Capt
Hensala’s consultation with an attorney prior  to  the  making  of  his
statement as evidence that  he  did  so  for  the  purpose  of  seeking
separation.  The applicant did not have the assistance of legal counsel
until after his Jul 92 letter.

          d.  Inflammatory Statements made by Capt Hensala.  The  court
in Hensala held that he had acted in a manner  designed  to  provoke  a
discharge by  submitting  a  list  of  references  that  confirmed  his
homosexual orientation and asking if he could have his  boyfriend  live
with him on base.  The applicant, on the other hand, submitted no  such
references or made any such request.

Counsel states that while the policy on recoupment as enunciated by AFI
36-3206 and the Deutch  Memorandum  is  understandable  and  justified,
there is no sufficient basis in the record for a reasonable  conclusion
that the applicant made his statements for the purpose of separation.

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

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STATEMENT OF FACTS:

The applicant was appointed  a  second  lieutenant  in  the  Air  Force
Reserve on 3 Apr 85.  On 3 Apr 85 he signed a contract  to  participate
in the Air  Force  component  of  the  Health  Professions  Scholarship
Program (HPSP).  He attended medical  school  from  1985  to  1989  and
incurred a four-year active duty service commitment scheduled to  begin
after his graduation.  However, the applicant received a deferral  from
Jul 89 to Jun 93 to complete OB/GYN residency training and  his  active
duty service commitment was scheduled to start on 1 Jul 93.  On 28  Jul
92, the applicant advised the Chief, Physical Education Branch that  he
had come to realize that he was homosexual and that it was  his  intent
and desire to fulfill his commitment to the Air Force, but only  as  an
openly gay man.

On 21 Mar 94,  the  applicant  was  advised  by  HQ  ARPC/DP  that  the
Commander of the Air Reserve Personnel Center had initiated  action  to
determine if he should be discharged from his appointment as a  Reserve
officer based on his letter  of  28  Jul  92  stating  that  he  was  a
homosexual.  In Jun 94, applicant  waived  his  right  to  a  discharge
board.  An Inquiry Officer (IO) was appointed to  conduct  an  official
inquiry of the applicant’s case.  The IO found that the evidence showed
that the applicant was a homosexual and made  his  disclosure  for  the
purpose of separating from the Air Force.  The applicant was personally
interviewed by the IO, although his counsel was present and limited the
questioning.  In Feb 96, HQ ARPC/CC recommended that the  applicant  be
honorably separated from the Air Force Reserve and that the money spent
on his education through the HPSP, $63,753, be recouped.

On 2 May  96,  the  Air  Force  Personnel  Board  determined  that  the
applicant’s statements, along with other evidence  in  the  case  file,
supported the finding that the applicant was homosexual  and  supported
the recommendation that he be discharged for homosexual conduct.   They
also found that he disclosed  his  homosexuality  for  the  purpose  of
separating from the Air Force.  In making its finding, the Board  noted
the applicant’s voluntary declaration of homosexuality, the  timing  of
his declaration, his  age,  and  other  factors.   On  3  Sep  96,  the
Secretary of the Air Force ordered that the applicant’s appointment  as
a Reserve officer be terminated, he be issued  an  honorable  discharge
certificate and that all funds expended on the  applicant’s  behalf  in
the HPSP be recouped.

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AIR FORCE EVALUATION:

AFPC/DPAME recommends that the  applicant’s  request  be  denied.   The
applicant signed his HPSP contract and should be required to  reimburse
the government.  He is board  certified  in  OB/GYN  and  employed  and
should have the means to reimburse the government  the  funds  expended
for his tuition, books, and supplies.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel responded to the Air Force evaluation by requesting
that the applicant’s case be temporarily withdrawn to allow  additional
time for comments.

Counsel’s response is at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, HQ  USAF/JAG  provided  an  additional
evaluation  of  the  applicant’s  case.   They   recommend   that   the
applicant’s case be denied.

In addressing the applicant’s assertion that “there  is  no  sufficient
basis in the record for a reasonable  conclusion  that  [he]  made  his
statements disclosing that he is gay for the  purpose  of  separation,”
SAF/GCM has advised that “While it may be difficult to make a factually
accurate determination regarding the subjective  purpose  for  which  a
statement of homosexuality may be made, boards and commanders are often
called upon to make such  factual  assessments,  and  often  do  so  in
matters of greater consequence.”  In this case, an IO and the Air Force
Personnel Council looked at  the  totality  of  the  circumstances  and
concluded that applicant disclosed his homosexual orientation  for  the
purpose of separating from the military.

The complete evaluation is at Exhibit F.

________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant’s counsel responded in a three-page brief to  the  additional
Air Force evaluation.  Counsel states that HQ  USAF/JAG  concedes  that
the  Deutch  Memorandum  governed  the  issue  of  recoupment  of   the
applicant’s HPSP assistance.  The only issue remaining is  whether  the
applicant sent a letter  explaining  his  sexual  orientation  for  the
purpose of seeking separation.  Counsel asserts that the applicant  has
refuted the premises at length in the brief provided with the  original
application under which HQ USAF/JAG bases its  determination  that  the
applicant disclosed his homosexuality for  the  purpose  of  separating
from the Air Force.  Counsel discusses the two-part test enunciated  by
the Deutch Memorandum for determining whether recoupment is proper  and
provides  their  reasons  why  recoupment  is  not  supported  in   the
applicant’s case.

The IO and Air Force Personnel  Council  are  required  to  base  their
decision to recoup on the “totality  of  the  circumstances.”   Counsel
states that the  issue  that  they  based  their  decision  on  ignores
evidence in the record that the applicant made  his  statement  at  the
time in his life that he came to terms with his sexuality and could not
conceal it from his superior officer as a matter of honor, as evidenced
by the applicant’s consistent statements and sworn  testimony  that  he
wanted to serve his country  and  welcomed  the  opportunity  to  begin
active duty as a physician in the Air Force.  HQ USAF/JAG’s  evaluation
is not supported by a preponderance of the evidence.   Counsel  further
indicates that the applicant requests a personal appearance before  the
Board.

Counsel’s complete response is at Exhibit H.

________________________________________________________________

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.  We took notice of the applicant's
complete submission in judging the merits  of  the  case;  however,  we
agree with the opinions and recommendations of the Air Force offices 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.  Additionally, we note that the applicant states in
his letter of 28 Jul 92 that it was his intent and  desire  to  fulfill
his commitment to the Air Force, however, only as an  openly  gay  man.
In our opinion, the applicant established a precondition that he had to
be aware would preclude him from fulfilling his commitment to  the  Air
Force.  In our view, he essentially stated that  absent  the  right  to
serve  in  an  openly  gay  capacity,  he  would  not  serve,   thereby
voluntarily seeking separation.  Therefore, in the absence of  evidence
to the contrary, we find no compelling basis to recommend granting  the
relief sought in this application.

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 issues 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  Docket  Number  BC-2002-
01429 in Executive Session on 16 July 2003, under the provisions of AFI
36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Mr. John B. Hennessey, Member
      Ms. Barbara J. White-Olson, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 23 Apr 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPAME, dated 30 May 02,
                w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 7 Jun 02.
    Exhibit E.  Letter, Applicant’s Counsel, dated 24 Jun 02.
    Exhibit F.  Memorandum, HQ USAF/JAG, dated 16 Aug 02,
                w/atch.
    Exhibit G.  Letter, AFBCMR, dated 6 Sep 02.
    Exhibit H.  Letter, Applicant’s Counsel, dated 3 Jun 03,
                w/atch.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair