RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02238
            INDEX NUMBER:  113.00
      XXXXXXX    COUNSEL:  John Brendon Gately

      XXXXXXX    HEARING DESIRED:  Yes


MANDATORY CASE COMPLETION DATE:  14 Jan 07


_________________________________________________________________

APPLICANT REQUESTS THAT:

His Date Initially Entered Military Service (DIEMS) be changed  to  21
May 80.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Before he entered  the  Air  Force,  his  recruiter  advised  him  his
retirement pay would be based on his final pay under  the  “final  pay
plan.”

All of his leave and earning statements (LES) since he entered service
up until Aug 03 had stated “final pay.”

He initiated an inquiry into the problem, which  subsequently  led  to
him making a trip to AFPC at Randolph.  He learned that  he  had  been
sworn into the Air Force on 22 Oct 80 and had missed the deadline of 8
Sep 80, the final date for retirement under the “final pay” system.

Because he started school in Aug 80, he  should  have  been  sworn  in
prior to that time.

The Air Force made two mistakes that have resulted in an injustice  to
him:

        a.  The Air Force failed to swear him in on time, which  would
have made him eligible for the “final pay” retirement system.

        b.  The Air  Force  provided  him  with  incorrect  leave  and
earning statements stating he was under the “final pay” plan from  the
time he entered service until Aug 03.

He is aware of a case similar to his where the  AFBCMR  corrected  the
individual’s record.

In support of his appeal, the applicant provides a brief of counsel, a
copy of the statement of understanding for  his  Armed  Forces  Health
Profession Scholarship, a copy of his school  transcript  showing  the
dates he started his  training,  a  copy  of  his  Health  Professions
Scholarship contract, copies of leave and earning statements,  and  e-
mails he sent and received regarding his retirement pay plan.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is presently serving on active  duty  in  the  grade  of
colonel (O-6).  Based on documentation provided by the  applicant,  he
signed a “Statement of  Understanding,”  regarding  the  benefits  and
requirements  of  the  Armed  Forces  Health  Professions  Scholarship
Program (AFHPSP) on 7 Apr 80.  He subsequently signed  a  contract  to
participate in the Air Force component of the  AFHPSP as a  full  time
student at an accredited  institution  pursuing  a  health  profession
degree in Osteopathic  Medicine  on   22  Oct  80.   As  part  of  his
enrollment into the AFHPSP,  the  applicant  was  appointed  a  second
lieutenant in the Reserve of the Air Force on 22 Oct 80.  The Military
Personnel Data System reflects the following  service  dates  for  the
applicant:

        a.  Total Active Federal Military Service Date (TAFMSD).     2
Jul 85.  This reflects the  date  the  applicant  started  his  active
military service.

        b.  Total Active Federal Commissioned Service  Date  (TAFCSD).
2 Jul 85.  This reflects the date the applicant started active service
as a commissioned officer.

        c.  Total Federal Commissioned Service Date (TAFCSD).  22  Oct
80.  This reflects the date the applicant was commissioned an  officer
in the uniformed services.  This is also the applicant’s pay date.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPAME recommends denial of the applicant’s  request.   They  note
the applicant signed the statement  of  understanding  for  the  Armed
Forces Health Professions Scholarship Program (AFHPSP) on  7  Apr  80.
However, he signed the AFHPSP contract on  22  Oct  80.   They  cannot
determine why the documents were signed at separate times  since  they
are normally signed at one time.  They further note that according  to
the recruiting command, selectees for  scholarships  are  oathed  once
eligibility is determined.  They do not know why  there  was  a  delay
from Apr to Oct in the applicant’s case.  They have enclosed a copy of
the applicant’s appointment order, dated 10 Nov 80.   The  applicant’s
eligibility for the AFHPSP is 17 Aug  81  and  he  was  sponsored  for
medical school from 1981 to 1984.  Due to the fact the  applicant  was
obligated 22 Oct 80 and his eligibility started in Aug 81, his request
should be denied.

The complete evaluation is at Exhibit C.

AFPC/DPPAOR  recommends  denial  of  the  applicant’s  request.    The
applicant’s service dates were computed correctly in  accordance  with
AFI 36-2604, Service Dates and Dates of  Rank.   The  applicant’s  pay
date computed to 21 May 80  due  to  constructive  service  credit  he
received for participation in the AFHPSP.  Due  to  the  extra  credit
AFHPSP participants receive, their pay date always computes to a  date
earlier than the DIEMS date.  However the pay date will not be used in
place of the DIEMS date.  To change the DIEMS date to an earlier  date
would be against DoD policy.  The applicant’s correct DIEMS date is 22
Oct 80.  Due to a change in the regulation, DIEMS is now called  DIEUS
(Date Initial Entry Uniformed Service).

AFPC/DPPAOR provides a copy of  the  applicant’s  oath  of  office,  a
corrected copy of statement of service, and a copy of the extract from
AFI 36-2604 used to compute the DIEUS (formerly DIEMS).

The complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel responded to the Air Force  evaluations.   Counsel
notes that AFPC/DPAME points out that the applicant’s AFHPSP  contract
and his statement of understanding were executed six months apart  and
could not explain why, observing that  these  documents  are  normally
executed together.  Counsel further notes  that  AFPC/DPAME  indicates
that AFHPSP selectees are oathed once eligibility is  determined,  yet
the applicant  was  not  oathed  until  22  Oct  80.   In  regards  to
AFPC/DPAME’s request for  the  applicant  to  clarify  what  happened,
counsel states they have already done so and attribute the problem  to
a simple clerical error on the part of the recruiting command and  not
to any fault,  omission,  or  malfeasance  on  the  applicant’s  part.
Counsel opines that since there is  no  evidence  to  demonstrate  the
error occurred through  any  fault  of  the  applicant,  it  would  be
manifestly unjust to penalize him for the clerical errors of others.

Counsel provides a hypothetical  scenario  showing  how  two  officers
would end up with  different  DIEUS  dates  where  both  signed  their
statement of understandings on the same day, 7 Apr  80,  but  one  was
oathed on 7 Apr 80 while the other was not oathed until     22 Oct 80.
 Counsel states that both men would serve an equal amount of time, but
end up with different DIEUS dates.  Counsel discusses why  it  is  the
responsibility  of  the  agency  and  not  the  individual  to  ensure
applicants are processed into  the  service  in  accordance  with  its
regulations.  Counsel opines that AFPC  is  attempting  to  shift  the
burden of proof onto the applicant.

Counsel notes that he has been unable to  identify  the  case  of  the
other medical officer that personnel at  the  “Retirement  Section  at
Randolph” mentioned to him as having prevailed before the Board.

Counsel discusses the  fact  the  applicant  was  provided  leave  and
earning statements for 18 years showing he would be retired under  the
final pay plan.  Counsel  indicates  that  the  applicant’s  decisions
regarding extending his time on active duty were  influenced  by  this
information.  Counsel states the applicant’s beliefs  were  reasonable
because if not for the inexplicable administrative delay in his  being
administered the oath, the applicant would have been eligible for  the
final pay plan.

Counsel’s complete submission is at Exhibit F.

_________________________________________________________________

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.   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 basis for our conclusion that  the  applicant  has  not  been  the
victim of an error or injustice.  We disagree with  counsel  that  the
fact the applicant did not sign his oath until six  months  after  the
statement of understanding (SOU) was a clerical error.   We  note  the
SOU is an information sheet for “applicants” to  AFHPSP  and  provides
information  on  a  number  of  subjects  related  to  benefits,   and
requirements of the program.   While  it  has  been  pointed  out  the
documents are  “typically”  signed  simultaneously,  we  do  not  find
evidence that states categorically they will be  signed  at  the  same
time.  The AFHPSP contract only references the SOU as  an  attachment,
which being signed earlier did not preclude.   In  addition,  we  note
that the later signing did not impact the  period  the  applicant  was
sponsored under the AFHPSP and further  note  the  applicant  was  not
obligated to the Air Force until he signed his oath.  Based  upon  the
presumption of regularity in the conduct of governmental  affairs  and
without evidence to the contrary, we must assume the later signing did
not violate Air Force policy.   Additionally,  while  regrettable  the
applicant’s LES statements incorrectly stated his retirement  plan  as
“final pay” for so many years, he has provided  insufficient  evidence
for us to conclude he  suffered  an  injustice  as  a  result.   While
clearly he would benefit from retiring under the “final pay” plan,  he
has not been treated differently  from  any  other  officer  similarly
situated.  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-2005-
02238 in Executive Session on 14 February 2006, under  the  provisions
of AFI 36-2603:

      Mr. Richard A. Peterson, Panel Chair
      Ms. Cheryl Jacobson, Member
      Ms. Leloy W. Cottrell, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 8 Jul 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPAME, dated 15 Aug 05.
    Exhibit D.  Memorandum, AFPC/DPPAOR, dated 16 Nov 05,
                w/atchs.
    Exhibit E.  Letter, SAF/MRBR, dated 23 Nov 05.
    Exhibit F.  Letter, Counsel, dated 24 Dec 05




                                   RICHARD A. PETERSON
                                   Panel Chair