RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  BC-2004-01246
            INDEX CODE 131.05
            COUNSEL:  None

            HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His date of rank (DOR) to major be changed from 24 Feb  04  to  19 Apr
03, and he be awarded retroactive pay.

_________________________________________________________________

APPLICANT CONTENDS THAT:

To his detriment, he relied on the Statement of  Understanding  (SOU),
which contained false  and  misleading  information.   The  Government
falsely represented he would be eligible for promotion during his  re-
deferred [unfunded] status.  His decision to  defer  his  active  duty
(AD)  status  while  pursuing  specialty  training  relied   on   this
misrepresentation.  Had he known he would be ineligible for  promotion
during his deferment, his decision concerning where to pursue training
would have been different due to the obvious  financial  incentive  to
remain on AD.

The applicant cites what he believes is a similar AFBCMR case  granted
on 14 Oct 03, and which he believes supports his own appeal.   Details
of the cited case are discussed in the Statement of Facts section.

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


_________________________________________________________________

STATEMENT OF FACTS:

Each spring, the Integrated Forecast Board (IFB) determines  how  many
physicians are to enter into specialty training based  on  the  future
needs of the Air Force.  The Joint Service Graduate Medical  Education
Selection Board (JSGMESB) selects applicants based on the approved IFB
results.  Selections are dependent  upon  projected  requirements  and
constraints imposed by limited  availability  of  training  positions,
which are categorized as funded or unfunded.  AF/SG  has  limited  the
maximum number of funded positions to 900.  In order to meet Air Force
requirements to remain at this 900 ceiling, unfunded positions such as
re-deferment are used to augment the needs of the Air Force.

The  applicant  was  sponsored  through  the   Armed   Forces   Health
Professions Scholarship Program (HPSP) from 1994 to 1997, resulting in
a three-year active duty service commitment (ADSC).

Upon completion of medical school, he entered AD on 7 Jun  97  in  the
grade of captain with a DOR of 19 Apr 97.  He was assigned  to  Wright
Patterson AFB, OH, as a resident in Internal Medicine.

Around Oct 98, the applicant applied to the JSGMESB for a  three-year,
first location training preference  of  civilian  deferred/re-deferred
(unfunded) training in cardiology, with a start date of 1 Jul 00.

In a letter dated 6 Jan 99, the applicant was advised he had been pre-
selected by the 1998 JSGMESB for his first choice  specialty  training
(Internal Medicine Cardiology)  and  first  choice  training  location
preference (re-deferment) from 1 Jul  00  to  30  Jun  03.   The  pre-
selection letter did not contain the SOU.  The applicant accepted  his
pre-selection for re-deferment on 18 Jan 99.

In a letter dated 12 Aug 99, the University of Medicine and  Dentistry
of NJ  (UMDNJ),  Robert  Wood  Johnson  Medical  School,  advised  the
applicant he had been appointed to a Cardiology Fellowship from 1  Jul
00 through 30 Jun  01.   He  would  earn  a  salary  of  approximately
$45,575.  The  applicant  accepted  and,  on  3 Sep  99,  provided  HQ
AFPC/DPAME a copy of the UMDNJ letter.

In a letter dated 23  Dec  99,  HQ  AFPC/DPAME  formally  offered  the
applicant entrance in  the  Internal  Medicine  Cardiology  fellowship
position.  The program was from 1 Jul 00 to 30 Jun  03.   This  letter
had the SOU as an enclosure.  Of particular note in the SOU:

      -- Paragraph 1 advised his ADSC at the  time  of  his  requested
separation from AD was 2 years, 11 months and 6 days based on the HPSP
and Internal Medicine residency sponsorship at  Wright  Patterson  AFB
obligation.  His obligation upon return to AD would  be  2  years,  11
months and 6 days, with the expected date of completion of 6 Jun 06.

      -- Paragraph 2 indicated he would be placed in obligated Reserve
status in the medical corps in the actual grade held  on  the  day  of
separation from AD.  Further, he would receive no pay, allowances,  or
benefits of AD service within the obligated Reserves.  [This made  him
ineligible for promotion to major during the three-year deferment.]

      -- Paragraph 3 indicated understanding that individuals in a re-
deferred status are Reserve officers and can only advance in grade  by
promotion board action.  Further, constructive  service  credit  (CSC)
was only awarded at the time of an officer’s original  appointment  in
the Air Force Reserve.

      -- Paragraph 5.a.(1) indicated understanding that,  if  selected
for an AD promotion before entering re-deferred status, he  could  not
be promoted to the  higher  grade  if  the  projected  promotion  date
occurred while he was off AD in a re-deferred status.  Further, if  he
had a projected active duty promotion, he became ineligible  for  that
promotion upon separation from AD.

      -- Paragraph 5.a.(2) indicated understanding that he must be  on
the Active Duty List (ADL) in order to be considered for AD  promotion
by a central selection board  and,  while  he  was  in  a  re-deferred
status, he would retain the current-grade-date-of-rank (CGDOR) held at
the time of separation.  Further, retaining his CGDOR would permit him
to accrue time-in-grade (TIG) for promotion consideration, but  if  an
AD promotion  board  convened  while  he  was  off  AD,  he  would  be
ineligible for promotion consideration  by  that  board.   This  would
cause him to miss promotion with his original peer group and he  would
not be eligible for retroactive promotion  with  his  original  peers.
The paragraph also indicated understanding that  rules  governing  CSC
would not be applied for periods of training in a re-deferred  status,
but rather he would accrue TIG based on his CGDOR at separation.

      -- Paragraph 5.b. indicated he understood he would  be  eligible
for Reserve Officer Promotion Act (ROPA) promotion while  re-deferred,
but a ROPA promotion would not carry over into AD when he was recalled
unless the effective date of the ROPA promotion occurred prior to  his
return to AD.  [Note:  According to HQ AFPC/DPAME  (Exhibit  C),  this
portion of the SOU should not have been, and is no longer, applicable.
 Title 10,  Chapter  1405,  Section  14301(h)  indicates  officers  in
educational delay  status  would  be  ineligible  to  meet  a  Reserve
promotion board.  Therefore,  the  ROPA  statement  should  have  been
deleted from the SOU.]

On 10 Jan 00, the applicant accepted training in a re-deferred  status
and signed  the  SOU  requesting  separation  from  AD  to  pursue  an
accredited program in Internal Medicine Cardiology at  no  expense  to
the government.

On 30 Jun 00, the  applicant  completed  Internal  Medicine  Residency
training at Wright Patterson AFB, OH, and was released from AD in  the
grade of captain  and  transferred  to  the  Reserves  to  pursue  the
specialty training.  He was placed in obligated Reserve status from  1
Jul 00 to 30 Jun 03  for  the  duration  of  the  cardiology  training
program.  In this position, he incurred no additional ADSC because the
training was unfunded, he did not have to  perform  any  Reserve  duty
although technically a Reserve officer,  and  he  was  protected  from
deployment.

The applicant was reaccessed into AD on 4 Jul 03 to  begin  fulfilling
his three-year ADSC for HPSP.  He was assigned to Keesler AFB as an in
internist, cardiology.

He met the next Calendar Year 2003A (CY03A)  Medical  Corps  promotion
board on 13 Nov 03, was  selected  for  the  rank  of  major  and  was
promoted with a DOR of 24 Feb 04.  [Note:  The Active Duty GME Program
Manager (Exhibit C, Atch 6) claims if the applicant had not  separated
for re-deferred training, he would have meet a promotion board in 2001
and pinned on his new rank on 19 Apr 03.  However, HQ AFPC/JA disputes
this in their advisory (Exhibit D).]

Sometime in Mar-Apr 04, the  applicant  contacted  HQ  AFPC/DPAME  and
indicated he was advised during processing at Keesler AFB in 2003 that
he was entitled to  receive  back  pay  for  the  grade  of  major  of
approximately $7,000.  However, he was informed the language regarding
Reserve promotion during re-deferment was erroneous, should  not  have
been included in the SOU, and did not entitle him to back pay.

The case cited by the applicant pertained to a captain on AD  who  was
selected for promotion  by  the  CY99A  Major  Medical  Corps  Central
Selection Board with a projected  DOR  of  20  May  01.   The  captain
separated from AD on 30 Jun 00 to complete specialty training and  was
carried in an inactive Reserve status.  He was not on the ADL when the
promotion would have  become  effective;  therefore,  it  was  without
effect.  He returned to AD on 7 Jul 03 as a captain with a DOR  of  20
May 95, and was scheduled  to  meet  the  CY03A  Major  Medical  Corps
Central Selection Board on 17 Nov 03.  He appealed to  the  AFBCMR  to
promote him to the grade of major with the originally projected DOR of
20 May 01.  In view of his prior  selection  for  promotion  to  major
while on AD and that General  Cardiologists  with  no  prior  military
experience were commissioned in the grade of major, on 14 Oct 03,  the
Board recommended as an alternative remedy  that  he  be  promoted  to
major while in the Reserves and returned to AD in that  grade  with  a
DOR 1 Jul 03.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPAME notes the applicant  indicated  his  decision  to  enter
unfunded training was based on the contents of his SOU.   However,  he
entered a contractual agreement with  the  UMDNJ  in  Aug  99.   DPAME
mailed the initial SOU on 23 Dec 99.   Currently  the  Air  Force  has
approximately  1400  physicians  in   funded/unfunded   training   (36
physicians are in re-deferred training).   Some  obligated  Air  Force
officers decline the unfunded training and reapply seeking sponsorship
for  financial  reasons  similar  to  those  that  the  applicant  has
indicated.  DPAME acknowledges the ROPA  statement  should  have  been
deleted from the  SOU,  but  recommends  the  applicant’s  request  be
denied.  He received his first choice training and location preference
and entered into a contractual agreement prior to receiving  the  SOU.
DPAME will coordinate with HQ ARPC regarding the accuracy of  the  SOU
for future applicants  applying/selected  for  re-deferment,  unfunded
training.

A complete copy of the evaluation, with attachments, is at Exhibit C.

HQ AFPC/JA indicates the applicant argues he detrimentally  relied  on
the representation in the SOU that he would be eligible for  promotion
as a Reserve officer while re-deferred and, had he known he  would  be
ineligible, he would have “pursued training at  Wilford  Hall  Medical
Center (rather than some outside school) in order to remain on  active
duty” due to what he calls “the obvious financial incentive to  remain
on active  duty.”   In  essence,  his  claim  is  one  of  detrimental
reliance, which flows from the legal concept of  promissory  estopple.
While he might  establish  the  language  in  the  SOU  is  clear  and
unambiguous, he would be hard pressed to establish the other  elements
of promissory estopple.  On its face, any primary reliance on the  SOU
promotion language pales in contrast  to  the  opportunity  to  pursue
specialty training at a  location  of  one’s  choice  while  receiving
$45,575 each year and accruing  no  additional  ADSC.   Moreover,  the
documentation  clearly  establishes   the   applicant   accepted   the
fellowship appointment well before  receiving  the  SOU.   It  is  not
reasonable  to  conclude  a  medical  doctor  would  bypass  such   an
opportunity just to ensure the potential of an earlier promotion  date
of a few months.  It is unclear whether the promotion prohibition  was
a statutory bar or simply a policy  decision.   The  rationale  behind
preventing individuals in the applicant’s status from being considered
for promotion may have been simply to obviate their being passed  over
while in an external school, ultimately resulting in their  discharge.
The applicant does not fall within the  “education  delay”  clause  in
Title 10, USC, Section 14301, because he was not  receiving  financial
assistance from the Air Force.  However, the same rationale applies in
that members on re-deferred (unfunded) status would  have  to  compete
for promotion against members having current service  experience  with
corresponding performance reports.  Under the reasoning of the  AFBCMR
decision cited by the applicant, he wishes the Board to find it unjust
to deny him an earlier promotion to the rank of major simply based  on
his prior service commitment.  Had he entered AD with  the  additional
experience in cardiology, he probably would have received the rank  of
major.  Should the Board find this unjust, it might be appropriate  to
back date the applicant’s DOR to the date he reentered AD:  4 Jul  03.
The Air Force commissions cardiologists as majors as an  incentive  to
get practicing cardiologists on AD.  These people have paid for  their
own medical school and cardiology training.  In the applicant’s  case,
he received his medical degree at Air Force expense  and  was  treated
like all other members in the same situation.  If the  Board  were  to
grant him an earlier promotion solely for this reason, it would  treat
him differently from every other Air Force doctor who has received  an
Air  Force-funded  medical  education.   Further,  there  is   nothing
indicating he would  have  definitely  been  promoted  had  he  met  a
promotion board during his residency training.  Indeed,  past  history
dictates  Reserve  members  serving  in   these   education-fellowship
training positions do not compete well  on  paper.   Moreover,  it  is
unclear how the Active Duty GME Program Manager  derived  a  projected
pin-on date of 19 Apr 03 as actual pin-on dates are dependent  upon  a
number  of  unascertainable  variants.   Although  the  SOU  contained
erroneous  language  regarding  promotion  opportunity  while  on  the
obligated Reserve status, the applicant has not proved  any  error  or
injustice in his case.  Denial is recommended; however, if  the  Board
disagrees, the applicant’s DOR should be 4 Jul 03, when he  re-entered
AD.

A complete copy of the evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on
30 Jul 04 for review and comment within 30 days.   As  of  this  date,
this office has received 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. After a thorough  review  of  the
evidence of record and the applicant’s submission, including the cited
AFBCMR case, we are not persuaded his DOR to major should be  changed.
The applicant’s contentions are duly noted; however, we  do  not  find
these assertions, in and by  themselves,  sufficiently  persuasive  to
override the rationale provided by the Air  Force.   Contrary  to  his
assertion that he relied, to his detriment, on the SOU to defer his AD
status while pursuing specialty  training,  the  applicant  entered  a
contractual agreement with the UMDNJ before he received the  SOU.   We
therefore agree with the analysis provided by HQ AFPC/JA and adopt the
rationale expressed as the basis for our decision that  the  applicant
has failed to sustain his burden of having suffered either an error or
an injustice.  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 9 September 2004 under the provisions of AFI  36-
2603:

                 Mr. Edward H. Parker, Panel Chair
                 Mr. Albert C. Ellett, Member
                 Ms. B. J. White-Olson, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2004-01246 was considered:

   Exhibit A.  DD Form 149, dated 12 Apr 04, & Letter,
                 dated 27 Apr 04, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPAME, dated 19 May 04, w/atchs.
   Exhibit D.  Letter, HQ AFPC/JA, dated 27 Jul 04.
   Exhibit E.  Letter, SAF/MRBR, dated 30 Jul 04.





                                   EDWARD H. PARKER
                                   Panel Chair