RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2006-00893
                                        INDEX CODE:

                                        COUNSEL: MR. KENNETH B. MARTIN
                                        HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  22 DECEMBER 2007

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her records be corrected to reflect:

      a.    Restoration to active duty in the Air Force  (AF)  in  the
Advanced Education in General Dentistry (AEGD) Program.

      b.    Correct adverse remarks on DD Form 214 Blocks 21,  26  and
28.

      c.    No recoupment attempt of any monies paid to  applicant  as
bonus pay.

      d.    Approve request for religious accommodation.

      e.    Find that Department of Defense (DOD) Manual  1300.17  and
Air Force Instruction (AFI) 36-2903 are unlawful.

      f.    Require  the  AF  to  follow  DOD  policy  and  develop  a
statement  advising  applicants  for  commissioning,  enlistment   and
reenlistment of DOD  policy  on  individual  religious  practices  and
military requirements.

      g.    Remove any adverse remarks  in  the  applicant’s  military
file.

      h.    Award the applicant the  National  Defense  Service  Medal
(NDSM).

_________________________________________________________________

APPLICANT CONTENDS THAT:

She was led to believe by the recruiter that once she entered the  Air
Force she would be allowed  dress  in  accordance  with  her  religion
(Muslim) by wearing the hijab and wearing the uniform
covering her legs and arms.  No one informed her on the  DOD’s  policy
on individual religious practices.

In  support  of  her   application,   applicant   provided   character
statements, photographs, e-mails, Oath of Office,  and  various  other
documents pertaining to her request.

Applicant's complete submission,  with  attachments,  is  attached  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 6 July 2003, the applicant entered the Air Force Reserve (AFRES).

The applicant arrived at Maxwell AFB, Alabama in early  July  2003  to
complete the Commission Officer Training (COT) course.

The applicant was counseled on 9 and 10 July 2003, regarding  the  Air
Force requirement on uniform wear.

On 10 July 2003, the applicant was administratively  disenrolled  from
COT for failure to meet eligibility standards.

On 17 July 2003, the applicant requested a uniform policy waiver.   HQ
USAF/DP denied the applicant’s waiver request on 26 November 2003.  On
16 December 2003, the applicant was notified  of  the  denial  of  her
waiver request and was further informed that she  would  be  scheduled
for the next COT course beginning on 24 December 2003.  The  applicant
declined the course and requested to be separated.

On 20 January 2004, the applicant’s  commander  notified  her  of  his
intent  to  recommend  her  for  discharge  for  failing  to  maintain
satisfactory progress in an active status student officer program.

The commander advised the applicant of her  right  to  consult  legal
counsel and that military legal counsel had been  obtained  for  her;
submit statements in her own behalf;  and  that  failure  to  consult
counsel or to submit statements would  constitute  a  waiver  of  her
right to do so.

On  21  January  2004,  the  applicant  acknowledged  receipt  of  the
administrative discharge action.

A legal review  was  conducted  in  which  the  staff  judge  advocate
recommended the applicant be separated with an honorable discharge.

On 9 April 2004, the discharge authority recommended  the  applicant
be discharged with an honorable discharge.

On 13 September 2004, the Secretary of the Air Force  directed  that
applicant be discharged with an honorable discharge.

Applicant was discharged on 27  September  2004,  in  the  grade  of
captain with an honorable discharge, in accordance with AFI 36-3207.
 She served 1 year, 2 months and 21 days of active duty service.

The applicant submitted an appeal to the Air Force Discharge  Review
Board (AFDRB) to change the reason and authority for discharge.   On
23 May 2006, the AFDRB approved changing the narrative  reason  from
unsatisfactory performance to Secretarial Authority.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ USAF/JAA recommends the requested relief be denied.  JAA states the
applicant’s religious attire request was consider and the  appropriate
Constitutional standard was applied to her situation and was fully and
appropriately discussed and resolved  prior  to  her  discharge.   The
burden falls upon the applicant  to  demonstrate  with  evidence,  not
conclusory  assertions  that  Air  Force  policy  is  wrong   or   was
erroneously applied to her situation.  The applicant has not met  that
burden.  Moreover, to restore  the  applicant  to  active  duty  would
simply put her in the same situation she was in before,  i.e.,  unable
to fulfill compelling military requirements because of religious dress
requirement and restrictions.  The military interest in  uniform  wear
is even more compelling today than it was in 2004 due to the  dramatic
transition to deployments in support of the global  war  on  terrorism
and other contingencies.

JAA notes as to the “demand for damages,”  the  Air  Force  Board  for
Correction of Military Records (AFBCMR) lacks the authority  to  award
damages; this is the exclusive role of the federal courts.

It is noted that a bonus is conditioned upon service.   The  applicant
service was not completed due  to  being  discharged.   In  regard  to
recoupment the Air Force has taken the  position  that  authority  for
waiver of indebtedness resides elsewhere and it is
inappropriate to  circumvent  those  limitations  such  as  correcting
records to reflect that the indebtedness was never incurred.

The applicant’s request for the AFBCMR to find that  DOD  1300.17  and
AFI 36-3206 are unlawful  seeks  something  entirely  outside  of  the
AFBCMR's jurisdiction.

The applicant’s request to remove any adverse  remarks  is  overbroad;
the burden is on  the  applicant  to  identify  with  some  degree  of
specificity.  Should the applicant clarify this relief sought  in  her
request; she may submit a reconsideration requests to the Board.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel reviewed the Air Force evaluation  and  states
the Defense and Finance Accounting Service (DFAS) in  a  letter  dated
16 October 2006, claims it has no ability to take any  action  on  the
issue of collection or recoupment because it is the responsibility  of
the DOD, i.e., the Air Force assigns the Separation Program Designator
(SPD) code.  According to DFAS the applicant must look to  the  AFBCMR
for relief.  However, according to the Air Force, the  AFBCMR  can  do
nothing.  This is another example of how the Air Force from the minute
the recruiter misled or misinformed the applicant that the  Air  Force
would accommodate  her religious belief continues to  cause  pain  and
suffering to the applicant and her family.

Counsel further states rather than different agencies of DOD  pointing
the finger at each other  and  saying  it  is  the  responsibility  of
another office to be fair and equitable perhaps the AFBCMR  will  look
at the equity of this situation and correct this injustice by changing
the SPD to a code that does not require recoupment (Exhibit E).

On 14 December 2006, the  Board  staff  forwarded  the  applicant  and
counsel a copy of a memorandum and directive that was  extracted  from
her AFDRB case for review and response (Exhibit F).

On 25 December 2006, the applicant’s counsel after  reviewing  the  13
December 2006 letter states  all  his  client’s  issues  were  covered
except the issue of recoupment (Exhibit G).

_________________________________________________________________

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 an error or an 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
and adopt its rationale  as  the  basis  for  our  decision  that  the
applicant has failed to sustain  her  burden  that  she  has  suffered
either an error or an injustice.  The applicant’s contentions are duly
noted; however, her records have been  administratively  corrected  to
award her the NDSM and change the remarks on her DD Form 214 in blocks
21, 26, and 28.  In regards to the applicant’s remaining  contentions,
we find no persuasive  evidence  to  warrant  favorable  action.   The
applicant’s request for a waiver to wear Muslim religious  attire  was
considered and denied by Hq USAF/DP because it does  not  fall  within
the parameters of Air Force policy and approval would take  away  from
the uniformity and cohesiveness of the Air Force uniform.  In view  of
this and inasmuch as the applicant has not shown that the Air  Force’s
position was arbitrary, capricious or had no rational basis,  we  find
no compelling reason to grant her waiver request. As to the recoupment
of any monies paid to her as bonus pay, the bonus pay was  conditioned
upon her serving as a dentist  and  due  to  the  fact  that  she  was
discharged and did  not  complete  her  service,  she  is  subject  to
recoupment based on the governing policy and regulations  of  the  Air
Force.  The applicant’s request to find that DOD 1300.17 and  AFI  36-
3206 are unlawful is  not  within  the  jurisdiction  of  the  AFBCMR.
Lastly, the applicant’s request for removal  of  any  adverse  remarks
from her records is rather vague.  If the applicant would clarify  her
request as to what adverse remarks she would like removed,  the  Board
would be willing to review the request as reconsideration.  In view of
the above and 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 AFBCMR Docket Number BC-
2006-00893  in  Executive  Session  on  1  February  2007,  under  the
provisions of AFI 36-2603:

                 Ms. Cathlynn B. Novel, Panel Chair
                 Mr. Don H. Kendrick, Member
                 Ms. Maureen B. Higgins, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 1  Mar 06, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, HQ USAF/JAA, dated 20 October 06.
      Exhibit D. Letter, SAF/MRBR, dated 3 Nov 06.
      Exhibit E. Letter, Counsel, undated w/ atch.
      Exhibit F. Letter, AFBCMR, dated 14 Dec 06.
      Exhibit G. Letter, Counsel, dated 25 Dec 06.




                                        CATHLYNN B. NOVEL
                                        Panel Chair