RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2001-00122
            INDEX NUMBER:  128.10

            COUNSEL:  Guy J. Ferrante

            HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

His indebtedness to the government for  repayment  of  his  Air  Force
Reserve Officer Training Corp (AFROTC) scholarship in  the  amount  of
approximately $77,000 ($58,293.14 plus interest) be waived.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In a nine-page brief with  three  exhibits,  the  applicant’s  counsel
provides  a  chronological  sequence  of  events  leading  up  to  the
applicant’s disenrollment from AFROTC.  He also presents arguments  to
show  that  the  action  taken  against  the  applicant  was  patently
unreasonable and disproportionate to the applicant’s offense, that  he
once exceeded the AFROTC weight standard by eight ounces.

Among the key points made by counsel are the following:

        1.  The applicant’s debt  to  the  government  of  $77,000  is
disproportionate whether or not his disenrollment is upheld.

        2.  The electronic scale used to weigh  the  applicant  had  a
margin of error of +/-  one-half  pound,  the  very  amount  that  the
applicant was deemed to be overweight.  The applicant consumed several
glasses of water just prior to being weighed and therefore should  not
have been weighed under these conditions and  then  subjected  to  the
body fat test.

Counsel argues that the applicant’s  case  presents  the  AFBCMR  with
precisely the kind of injustice that cries out  for  relief  and  that
Congress had in mind when creating correction boards.  Counsel further
states that the disproportionate injustice suffered by  the  applicant
is all the more apparent upon considering eight “what-if” questions:

        1.  What if the applicant “had been satisfied to graduate  on-
time with only the one degree for which he contracted, at  which  time
he  satisfied  all  the  physical   and   weight   prerequisites   for
commissioning, or Detachment 790 had not endorsed his continuation  of
schooling in pursuit of a second degree”?

        2.  What if the applicant “had not devoted his full  attention
and energy to the academics  that  he  needed  to  graduate  with  two
degrees  rather  than  to  physical  fitness,  as   Detachment   790’s
preexisting policy of not requiring 5th year  seniors  to  retake  the
physical fitness test (PFT) seemed to allow and, in fact encourage”?

        3.  What if his AFROTC detachment had scheduled  him  to  take
the PFT early in his final  semester  before  his  level  of  physical
fitness deteriorated because of the ever-increasing  time  he  had  to
spend on class work?

        4.  What if the applicant had not been recovering from the flu
when he took the PFT on 13 Dec 96?

        5.  What if the applicant “had not been  scheduled  to  retake
the PFT five days after his wedding and on the day after Christmas”?

        6.  What if the applicant had been afforded more than 13  days
to prepare for the 26 Dec 96 retest?

        7.  What if his AFROTC detachment had  properly  measured  the
600-yard run portion of the PFT on 13 Jan 97?

        8.  What if his AFROTC detachment had used a  scale  that  was
accurate enough to differentiate  between  his  weight  exceeding  the
standard and being the product of its own margin of error?

Counsel opines  that  with  a  different  outcome  under  any  of  the
scenarios painted in the  eight  “what-if”  questions,  the  applicant
would never have gotten to the ultimate “what-if” question:   What  if
the applicant did not drink one  pound  of  water  until  after  being
weighed on 25 Jun?

Counsel concludes that the facts surrounding the applicant’s  weigh-in
on 25 Jun 97 do not support a conclusion that he exceeded  the  weight
standard at that time,  or  justify  his  disenrollment  from  AFROTC.
Finally, even if the applicant’s disenrollment is  deemed  valid,  the
$77,000 debt he faces is a  disproportionate,  excessive,  and  unjust
burden for him to bear.

Counsel’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant signed a contract to enter the AFROTC program on  26 Aug
92, with a four-year scholarship.  The contract placed  the  applicant
on notice regarding his responsibility to meet the weight and physical
fitness standards specified by  AFROTC  directives  and  outlined  the
potential consequences should he fail to do so.  By the summer of  96,
the applicant had  completed  all  prerequisites  for  graduation  and
commissioning.   However,  he  requested  permission  to   delay   his
graduation in order to complete requirements for  award  of  a  second
degree.  He was scheduled to be commissioned in Dec 96.  On 3 Sep  96,
he was given a completed cadet  briefing,  which  he  acknowledged  in
writing, advising him  of  his  responsibility  to  maintain  physical
fitness standards for his scheduled commissioning.  On 12 Nov 96,  the
applicant received a mid-term  counseling  advising  him  that  before
being commissioned, he would be required to pass  a  physical  fitness
test  (PFT),  pass  a  1.5-mile  run,  and  weigh-in.   The  applicant
acknowledged this information in writing.

On 13 Dec 96, the applicant was administered and failed the PFT.   Due
to his pending commissioning date, he was administered the  PFT  again
on 26 Dec 96.  He failed again.  On 10 Jan 97, HQ  AFROTC  waived  the
second failure due to the applicant not being given 30  calendar  days
to retest in accordance with AFROTC policy.  It  was  determined  that
the applicant should be retested on 13 Jan 97, 30 days from 13 Dec 96.
 The applicant was administered the PFT again on 13 Jan 97 and failed.
 A disenrollment investigation was initiated.

On 14 Jan 97, the applicant was notified of disenrollment proceedings.
 He acknowledged receipt on 14 Jan  97.   The  applicant  submitted  a
statement, dated 10 Feb 97, stating why he should not be  disenrolled.
On 24 Mar 97, his AFROTC Detachment requested that  the  applicant  be
disenrolled from AFROTC.  On 6 May 97, HQ  AFROTC  directed  that  the
applicant be retained in AFROTC due to the  documented  inaccuracy  of
the 600-yard portion of the PFT completed by the applicant on  13  Jan
97.  The Detachment was required to correct the test  and  notify  the
applicant in writing that he had 30 days to prepare for a PFT  retest.
They directed that if the applicant successfully completed the PFT  he
could be commissioned.

On 20 May 97, the applicant was advised  in  writing  of  HQ  AFROTC’s
decision, and notified that he would be required to complete the  PFT,
1.5  mile  run,  and  meet  weight  and   body   fat   standards   for
commissioning.   On  25  Jun  97,  the  applicant  was   weighed   and
administered the PFT.  He passed the PFT, but his weight exceeded  the
maximum allowable weight (MAW)  by  1.5  pounds.   The  applicant  was
weighed again after his PFT.  This time he was only  0.5  pounds  over
his MAW.  He was then measured to determine his body fat content.  His
body fat was calculated at 29%, while his maximum allowable  body  fat
was 20%.  On 26 Jun 97, the applicant was administered and passed  the
1.5-mile run.  He was weighed and measured again.  He exceeded his MAW
by 1.5 pounds and his body fat content was 9% over.

On 7 Jul  97,  the  applicant  was  again  notified  of  disenrollment
proceedings.  The applicant acknowledged receipt  on  7  Jul  97,  and
requested the assistance of an active duty officer regarding his case.
 On 28 Aug 97, the applicant’s disenrollment package was submitted  to
HQ AFROTC.  In a memo dated 11 Sep 97, the applicant advised HQ AFROTC
that he had been assisted in his case by two  active  duty  Air  Force
officers.  On 8 Oct 97, the  applicant  was  disenrolled  from  AFROTC
effective 16 Oct 97.  Recoupment  of  scholarship  benefits  paid  was
directed in lieu of calling  the  applicant  to  active  duty  in  his
enlisted grade.  On 27 Oct 97,  the  applicant  was  notified  of  the
recoupment action.

_________________________________________________________________

AIR FORCE EVALUATION:

The Deputy Staff Judge Advocate, Air University, AFOATS/JA,  evaluated
this application  and  recommends  that  the  applicant’s  request  be
denied.

AFOATS/JA provides extracts from the governing directive, AFROTCI  36-
2007, The Air Force Weight and Fitness Program,    15  November  1996,
that was in effect during the times relevant to this case.   AFOATS/JA
states that the applicant does not allege any error  or  injustice  in
any procedural aspect of his disenrollment.  Further, the accuracy  of
his body fat measurements is not challenged.  AFOATS/JA also  responds
to the “what-if” questions posed  by  applicant’s  counsel.   He  also
provides a chronological statement of facts relevant to the  case  and
an analysis of what he considers the  four  allegations  made  by  the
applicant  through  counsel.   Included  in  his  analysis   are   the
following:

        a.  In regards to the applicant’s allegation that the debt  of
$77,000 is disproportionate,  he  states  that  maintaining  body  fat
standards is a training requirement specified in the AFROTC  contract.
The applicant had been in AFROTC for four years prior to the time that
he failed to meet standards and had been successfully meeting  all  of
the requirements and standards outlined in the  contract.   Given  the
circumstances of this case, it is neither disproportionate nor  unjust
to order the applicant to repay scholarship benefits expended  on  his
behalf.  The applicant was placed on notice as early as  January  1997
that his commission was in jeopardy (when he was served with notice of
disenrollment proceedings).  At that point, the Air Force had  already
expended over $58,000 on the applicant’s education.  After giving  the
applicant every possible chance  to  satisfy  his  remaining  training
requirements, AFROTC’s decision to disenroll him and order recoupment,
when he failed to do so, is legally justified and proportionate.   The
Air Force did not get the engineering officer it  bargained  for,  but
the applicant still has the engineering  degree  he  obtained  at  Air
Force expense.

        b.  In reference to the inaccuracy  of  the  electronic  scale
used to weigh the applicant, he states  that  this  is  an  irrelevant
issue since the applicant  was  disenrolled  for  exceeding  body  fat
standards  not  for  being  overweight.   This  also  applies  to  his
assertion of having  drunk  several  glasses  of  water  before  being
weighed.  He also points out that in addition to exceeding the maximum
allowable weight, individuals are subject to body fat measurements for
other reasons,  such  as  appearance  and  at  the  direction  of  the
commander.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In an e-mail, dated 10 May 01, applicant’s counsel requested that  the
applicant’s  case  be  temporarily  withdrawn.   The  Board   approved
counsel’s request on 11 May 01 (Exhibits E and F).

Applicant’s counsel responded to the Air Force evaluation in an eight-
page brief of counsel with five exhibits.

Counsel addresses the issue of timeliness of  the  applicant’s  appeal
and gives his reasons why the applicant’s appeal should not be  denied
on this basis.

Counsel argues that although AFOATS/JA focuses on body  fat  standards
as the reason the applicant was disenrolled, the reality of the matter
is that the applicant never would have been subject to a body fat test
had he not exceeded  his  maximum  allowable  weight  by  0.5  pounds.
Counsel  considers  AFOATS/JA’s  evaluation  “largely  irrelevant  and
misdirected” because it ignores the reality  that  the  applicant  was
disenrolled because he was deemed to exceed his  MAW  by  ½  pounds--8
ounces.  Counsel states that although the  evaluation  is  correct  in
stating that the applicant completed the PFT on 25 Jun 97, and the 1.5-
mile run on 26 Jun 97,  this  is  inconsistent  with  their  analysis.
Counsel states that this goes to the heart of the  case  presented  by
AFOATS/JA.  He opines that AFOATS/JA  recognizes  that  the  applicant
would have sweated off two full pounds during the 15  minute  PFT  and
would have been below his  MAW,  would  not  have  had  his  body  fat
measured, and would  have  been  commissioned.   He  states  that  the
applicant was ½ pound above his weight because he drank one  pound  of
water after completing the PFT, but before getting on the scale.

Counsel also asserts that AFOATS/JA glosses over the  fact  that  when
the applicant was weighed on 25 Jun 97, this  marked  the  first  time
that he had exceeded weight standards and the first time  he  had  his
body fat  measured.   Counsel  indicates  that  the  AFROTC  Registrar
claimed  that  the  applicant’s  disenrollment  was  required  because
exceeding the standard on 25 Jun 97 was the applicant’s third  failure
to maintain retention standards.  Counsel opines that  this  was  only
the applicant’s second recognizable retention standard failure and his
disenrollment was not required.  The applicant should have been  given
an opportunity to correct his 25 Jun 97 failure as required by AFROTCI
36-2007.

Counsel indicates that AFOATS/JA tries  to  disregard  the  “what-ifs”
presented in the applicant’s initial appeal by claiming that  they  do
not matter because the applicant was  disenrolled  for  violating  the
body fat standard on 25 Jun 97.  Counsel opines  that  they  miss  the
point by viewing the body fat test in a vacuum.  He then discusses why
the accuracy of the scale used to weigh the applicant,  the  pound  of
water he drank before being weighed, and the waived PFT  failures  are
all relevant to the applicant’s appeal.

Counsel discusses the actions of the applicant’s AFROTC Detachment and
seeks to dispel the assertion that they took extra efforts to help the
applicant.

Finally, counsel discusses the fact that the  applicant  had  received
permission to fulfill his commitment to the Air Force through the  Air
National Guard (ANG), which had less stringent physical standards  and
were anxious for the applicant’s  service  regardless  of  the  weight
problem.  Counsel opines that the ANG was denied  the  services  of  a
highly qualified officer that it  wanted  and  the  applicant  is  now
saddled with a massive debt for exceeding a weight/fat  standard  that
did not really matter in the long run.

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

_________________________________________________________________

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 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.   After  considering   counsel’s
arguments submitted in his initial submission as well as rebuttal,  we
do not find any merit in his  arguments  to  obviate  the  applicant’s
responsibility for the situation he now  finds  himself.   We  believe
that the applicant was given reasonable opportunities to  achieve  and
maintain the body fat standard that led to his eventual disenrollment.
 In fact, the very directive referenced by  counsel,  AFROTC  36-2007,
makes it clear that the applicant had the responsibility  to  “achieve
and maintain” body fat standards.  Counsel’s argument  seeks  to  take
issue with the way in which the  applicant’s  violation  of  body  fat
standards was discovered, i.e., that  the  applicant  was  erroneously
found to be one-half pound overweight.  AFROTCI 36-2007, paragraph  7,
lists several circumstances besides exceeding  the  maximum  allowable
weight standard when body  fat  should  be  measured,  i.e.,  when  an
individual appears to exceed the maximum body fat, does not present  a
professional  military  appearance,  or  whenever   otherwise   deemed
appropriate by the unit commander.  Obviously, then,  the  applicant’s
emphasis should have  been  on  achieving  and  maintaining  body  fat
standards, not on what circumstances would cause his body  fat  to  be
measured.  Counsel also argues that the AFROTC Commander’s failure  to
waive the applicant’s active duty service commitment was an  injustice
because the applicant had already been released from his  active  duty
obligation and was slated to  fulfill  his  obligation  with  the  Air
National Guard, which had (and has) less stringent physical standards.
 We are not aware of and insufficient evidence has been  presented  to
conclude that  the  AFROTC  program  was  required  to  vary  physical
standards according to the component that a cadet may have been slated
to serve in.  Finally, we fail to grasp counsel’s  argument  that  the
applicant’s debt is disproportionate.  It probably would appear so  if
one is inclined to accept counsel’s premise that the debt  is  due  to
the applicant drinking a couple of glasses of water or for being  one-
half pound overweight.  We do accept this simplified view.  Rather, we
view the applicant’s debt as result of his failure to  adhere  to  the
terms of the contract that he freely entered into on 26 Aug 92.  Under
the terms of the contract, the government has paid  the  cost  of  his
education, which he should benefit from for  the  rest  of  his  life.
Unfortunately, the government is not receiving anything in return.  We
believe the contract clearly placed the applicant on notice as to  the
consequences of his failure to  successfully  complete  his  training,
become a commissioned officer and to fulfill his active  duty  service
commitment.  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-2001-
00122 in Executive Session on 1 June 2004, under the provisions of AFI
36-2603:

      Mr. Richard A. Peterson, Panel Chair
      Ms Carolyn B. Willis, Member
      Mr. James A. Wolffe, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 13 Nov 00, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFOATS/JA, dated 16 Mar 01,
                W/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 6 Apr 01.
    Exhibit E.  E-mail, Counsel, dated 10 May 01.
    Exhibit F.  Letter, AFBCMR, dated 11 May 01.
    Exhibit G.  Letter, Counsel, dated 8 Jan 04, w/atchs.




                                   RICHARD A. PETERSON
                                   Panel Chair