RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-00282
            INDEX CODE:  128.10
            COUNSEL:  MR. JEFFERSON MOORE
            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her indebtedness to the government be remitted.

_________________________________________________________________

APPLICANT CONTENDS THAT:

According to AFI 36-3207 the Air Force is only entitled  to  recoup  a  debt
from the Health Professions Scholarship  Program  (HPSP)  if  an  individual
voluntarily separated or is involuntarily separated  for  reasons  described
under AFI 36-3206 chapters 2 or 3.  None of these apply to her  as  she  was
involuntarily discharged due to her cancer.

In support of her  request  applicant  provided  a  personal  statement  and
documentation  associated  with  her   Physical   Evaluation   Board   (PEB)
proceedings.

Her complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant  was  sponsored  through  the  Air  Force  HPSP  program  at   the
University of Nebraska Medical Center from 1993 through 1997,  resulting  in
a four-year active duty service  commitment  (ADSC).  She  applied  and  was
selected  by  the  1996  Graduate  Medical  Education  Selection  Board  for
radiology residency training from  1 Jul  97  to  30  Jun  02.  She  further
applied and was selected  by  the  2001  GME  selection  board  for  nuclear
medicine fellowship training at Wilford Hall Medical Center from  1  Jul  02
to 30 Jun 03.

On or about February 2002, applicant was placed on the Temporary  Disability
Retired List (TDRL).  On 3 Dec  03,  she  was  removed  from  the  TDRL  and
discharged with severance pay with a compensable percentage of 20%.  A  debt
for recoupment of $36,111.64 was established.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPAME  recommends  denial.   DPAME  states  recipients  of  the  AFHPSP
scholarship are governed under Title 10, § 2005, paragraph c., which  states
"Subject  to  the  provisions  of  subsection  (d)  of  this  section,   the
obligation to reimburse the United States under an  agreement  described  in
subsection (a) of this section is for all purposes, a debt owing the  United
States.  She signed an AFHPSP contract which states "Should I become  unable
to commence the period of ADSC specified in the contract  or  become  unable
to complete my medical education program, I agree to  reimburse  the  United
States in one lump sum for the total cost of advanced education paid by  the
U.S. Government as specified in 10 USC 2005."

Additionally, her discharge did not  preclude  her  from  securing  civilian
employment.  She secured employment during her TDRL status as  evidenced  by
her unrestricted Texas state medical license issued on 4 Oct 02.

The complete DPAME evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states she requests  her  debt  be  deleted  because  it  contains
material errors, inaccuracies, and is unconstitutional.  Applicant  provided
a synopsis of her Air Force career and adds at the time  of  her  disability
separation on 12 Nov 03, no one  explained  the  Air  Force  would  seek  to
recoup funds after her discharge.  She was not notified of the  indebtedness
until October 2005.  The advisory writer  conducted  an  investigation  into
her indebtedness and determined she owed $36,111.64.  Although the  advisory
writer was required by law to hear evidence from the person owing the  debt,
no such hearing was offered or held.  She simply received a letter with  the
conclusions  already  established.   Applicant,  states  her  constitutional
right to due process was denied.

10 USC 2005 states "That  if  such  a  person,  voluntarily  or  because  of
misconduct fails to complete the period of active  duty...such  person  will
reimburse the United States..."  She  was  involuntarily  discharged  for  a
medical disqualification and not discharged for misconduct.  The law  states
that  the  Secretary  of  the  Air  Force  may  prescribe  other  terms  and
conditions;  however,  neither  AFI  36-3606  nor  AFI  36-3607   prescribes
recoupment for involuntary medical separations.   Even  if  the  regulations
did  provide   instructions   for   recoupment   for   involuntary   medical
separations, it must be within the framework Congress set out as  described;
otherwise the Secretary would be legislating Federal law.  She has  a  right
to be processed under the existing law and not under new categories  erected
outside the law.  Further, in accordance with 10 USC 2005, she  should  have
been given notice upon her separation that recoupment would follow.

The advisory writer also pointed out that she was employed.  It is true  she
began working six months after her discharge and can  now  work  full  time.
Her intent when she returned to the Air Force for medical  training  was  to
serve until retirement.  If she had not gotten ill she would have had  close
to 17 years of active  service  with  close  to  three  years  to  go  until
retirement after her obligations were complete.  The Air Force  is  ignoring
the fact that she was separated before her medical  training  was  completed
and made no effort to arrange for her to finish her residency and  take  her
boards, both of which are required to practice.  She  finished  on  her  own
accord with no financial assistance from the Air Force.

Her complete response is at Exhibit E.

On 10 Mar 06, counsel requested applicant's case be  temporarily  withdrawn.
In response to the applicant's request, she was provided a copy of her  HPSP
contract and was also  provided  an  USAF/JAA  evaluation  pertaining  to  a
previously considered AFBCMR application in which the  same  basic  argument
was made (see Exhibits F through J).

On 26 Apr 07, counsel requested  the  processing  of  the  applicant's  case
resume and provided additional comment.   Counsel  states  two  statues  are
applicable in this case, 10 USC  Section  2005  and  10  USC  Section  2123.
Section 2005 was addressed in applicant's response to the advisory  opinion.
  Section 2123 is referenced in applicant's  HSPS  contract  and  is  highly
pertinent.  Section 2123 was heavily amended in 1996, three years after  she
signed her contract in 1993.   The  current  version  specifically  mentions
repayment and specifically  mentions  physical  disability  while  the  1993
version was silent on both repayment  and  physical  disability.   The  1996
amendment gave alternative obligations to the Air Force for persons who  did
not complete the terms  of  the  contract.   One  of  the  new  alternatives
enacted in 1996 was a repayment provision which implicated that  individuals
such as  the  applicant  who  contracted  into  the  program  prior  to  the
amendment are allowed to leave  military  service  for  physical  disability
without reimbursing the military for  medical  school  payments.   The  only
possible remedy was through DoD regulations (not Secretary of the Air  Force
regulations) is to reassign the member  to  a  health  professions  shortage
area.  However, the 1993 version is silent as to physical  disability  being
a reason for separation prior  to  completing  obligations.   This  too  has
implication that persons separated for physical disability would not be  re-
assigned.  The 1996 amendment had a transition provision for individuals  in
the program prior to 1 Oct 96 authorized for use by the Secretary only  with
the agreement of the member.  Until the applicant  agrees  to  a  repayment,
the Air Force cannot force one upon her.

Her HPSP contract is silent for any provisions  as  to  physical  disability
separations and the  Air  Force  is  bound  by  that  omission  and  regular
separation procedures for  physical  disability  separations  apply.   Under
regular physical disability separation procedures, members are not  required
to repay the Air Force for  training  without  either  statute  or  contract
provision requiring them to  do  so.   Otherwise  the  training  other  than
vocational occupations  would  require  reimbursement  upon  separation  for
physical disability.  The Air Force does not require  repayment  because  it
does not have the authority to do so as is the case here.  Paragraph  11  of
her contract deals  directly  with  reimbursement  issues.   She  agreed  to
reimburse her  medical  school  costs  if  one  of  three  things  happened:
voluntary separation, involuntary separation  because  of  substandard  duty
performance, misconduct, or moral or professional  dereliction;  or  because
retention is not clearly consistent with the interest of national  security.
 She clearly does not meet any of the above criteria.

Regarding the similar case legal opinion that was provided counsel  responds
that JAA contends that the contract is clear that the intention of  the  Air
Force was that applicant would  reimburse  the  Untied  States  if  she  was
physically disqualified.  JAA fails to  point  out  where  the  contract  is
clear in intention.  Instead the opinion relies on legal euphemism  whenever
lawyers are faced with no provisions within  a  document  to  support  their
claim.  The opinion makes the  assertion  that  there  is  no  way  for  two
parties to "predict  or  envision  every  possible  factual  permeation  and
application" of a contract.  While it  is  agreeable  it  is  impossible  to
foresee every condition that may arise  after  a  contract  is  signed,  but
separation for physical disability was not  an  unforeseen  event  since  an
entire system was in  place  for  processing  physically  disabled  members.
Furthermore, Congress envisioned separation for  physical  disability.   Any
congressperson who voted for 10  USC  2005  had  to  have  known  the  words
"misconduct" and "voluntary separation" did not  include  reimbursement  for
involuntary separation for physical disability.

JAA tries to state that Congress included a "catchall" phrase  with  10  USC
2005  (a)(4),  but  the  Secretary  cannot  override   legislation   through
regulation  and  furthermore,  never  included  physical  disability  as   a
reimbursable event in the regulation.  What congress granted  the  Secretary
is the ability to protect the interests of the United States; that  did  not
mean the Secretary  could  ignore  other  provisions  of  law  and  shoehorn
foreseen events such as physical disability  into  a  regulation.   Further,
nowhere does JAA show that the Secretary used 10 USC to state that  physical
disqualification is reimbursable.  Even if the Secretary  were  to  draft  a
provision today to clarify the position,  Congress  required  under  10  USC
2005 (a)(4) that the Secretary prescribes other terms  and  conditions.   It
would be after the fact for the Secretary to make a provision now.

The applicant did not seek to cut short her Air Force career by  contracting
non-Hodgkin's lymphoma.  It was the Air  Force's  decision  to  declare  her
physically disabled.  While the Air  Force  has  no  fault  in  her  getting
cancer, the issue is whether the Air Force has complied with the  statutes--
that  is  reimbursement  is  required  only  when  there  is  misconduct  or
voluntary separation and not for physical disability.

Counsel's complete submission, with attachments, is at Exhibit K.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

USAF/JAA recommends denial.   JAA  states  the  applicant's  claims  revolve
around two statutes (10 U.S.C. 2005 and 10 U.S.C. 2123), the  HPSP  contract
and an extract from an AF/JAA legal opinion involving a different case  with
somewhat different, albeit different facts.  JAA  concurs  with  applicant's
counsel that recoupment is not appropriate pursuant  to  10  U.S.C.  2123(e)
because it was enacted after the applicant signed her HPSP contract.

Contrary  to  the  applicant's  assertion,  section  2005(a)(4)  allows  for
secretarial discretion in developing such terms and conditions necessary  to
protect the interests of the United States in  the  context  of  educational
assistance agreement.  She entered into  such  an  agreement  in  which  she
would be  subject  to  reimbursement/recoupment  for  failing  to  meet  the
requirements specified under paragraphs 6c, 10d, and  11  of  her  contract.
As a result of her discharge for medical reasons, she neither completed  her
medical education program nor was able to commence the period  of  her  HPSP
ADSC,  she  failed  to  meet  physical  fitness  standards,  and   she   was
involuntarily separated because her retention  was  not  clearly  consistent
with the interests of national security.

An individual who disputes a debt,  is  not  guaranteed  an  opportunity  to
present matters to a military or  civilian  investigator,  only  that  there
will be a review of the facts and presentation of  evidence  by  the  doctor
and others "as appropriate, in  order  to  determine  the  validity  of  the
debt."  There is no particular statutory direction  regarding  a  particular
investigative process.

Notably, applicant and her counsel present only question of law,  not  fact.
There are not disputed facts in this case.  It is  clear  she  was  an  HPSP
student, never completed her program of medical education,  never  commenced
service of her ADSC, and was involuntarily discharged due to health  issues.
 She never disputed the amount of the debt, only that given  the  undisputed
facts, there is neither a statutory or  contractual  basis  for  recoupment.
Her claims do not warrant an evidentiary hearing of the sort  she  seems  to
envision.   The  DPAME  evaluation  and  investigation  of  the   debt   was
appropriate in  accordance  with  10  U.S.C.  2005  (G)(1).   Regarding  the
applicant's complaint that she was  not  provided  the  required  notice  of
recoupment  pursuant  to  the  now-repealed  10  U.S.C.   2005(g)(2),   that
provision, on its face, did not apply  to  her  situation.   This  provision
only applied when there was either (1) a request  for  voluntary  separation
or (2) an administrative action based on allegations of misconduct.  As  she
repeatedly asserts, she was involuntarily separated; and the basis for  that
involuntary separation was not misconduct,  but  health  issues.   There  is
nothing in the case file to suggest that the notification requirement of  10
U.S.C. 2005(g)(2) was  triggered.   Moreover,  she  was  ultimately  put  on
notice of recoupment by the terms of her HPSP contract.

While she is correct that it is neither her fault or the fault  of  the  Air
Force that she became ill, the  agreement  she  and  the  Air  Force  signed
clearly provides that in the event of her inability to complete her  medical
education program and/or her ADSC, she will  reimburse  the  government  the
educational costs it  has  paid.   The  record  demonstrates  that  she  has
secured full time employment in the medical career field for which  the  Air
Force funded her education and training. This represents a valuable  product
of the educational benefit provided to  the  applicant  in  exchange  for  a
still-unfulfilled service commitment.  Public  policy  supports  enforcement
of contractual obligation to reimburse taxpayers for the  educational  costs
expended on her behalf.

Under the contract HPSP reimbursement would be triggered  if  the  applicant
were unable to complete  her  medical  education  program  or  commence  the
period of ADSC, failed to meet applicable  Air  Force  physical  procurement
standards, or was involuntarily  separated  because  her  retention  was  no
longer clearly consistent with the interest  of  national  security.   While
one of these criteria would have been sufficient, the  applicant  meets  all
three.  Although it is unfortunate that she was  diagnosed  with  a  medical
condition that  rendered  her  unfit  for  duty,  it  is  evident  that  she
continues to benefit from the  educational  assistance  funded  by  the  Air
Force.  Recoupment is legally supportable and appropriate.

The complete JAA evaluation is at Exhibit Q.

_________________________________________________________________

COUNSEL'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel responded and states that per the  statute,  there  are  only  three
ways the Air Force could recoup payment from the applicant:  separation  for
misconduct on her part, voluntary  separation,  or  for  prescribed  reasons
established  by  the  Secretary.   Clearly  the  misconduct  and   voluntary
separation sections do not apply here.  Only  the  provision  that  Congress
allowed the Secretary to prescribe other terms and  conditions  has  bearing
here.  The advisory opinion does  not  point  to  any  regulation,  term  or
condition that was in effect at  the  time  she  signed  her  contract  that
supports recoupment.   Further  support  that  no  such  term  or  condition
existed is the fact  that  following  the  commencement  of  the  agreement,
Congress enacted 10 U.S.C. Section 2123(e) that specifically  addressed  the
recoupment for physical disability, which the Air Force  conceded  does  not
apply  retroactively.   The  Secretary  did  not  comply  with  the  law  by
implementing regulations for a recoupment for physical disability.  So  now,
the only way to recoup is to look at the contract to see  if  any  provision
allows recoupment.

The advisory opinion claims that the terms and  conditions  prescribed  were
in the contract the applicant signed and that she  is  bound  by  paragraphs
6c, 10d, and  11.   Paragraph  6c  regards  completing  medical  school  and
commencing her ADSC.  She did complete her medical school and  she  went  on
active duty for several years.  While on active duty  she  applied  for  and
was accepted for advanced medical studies.  During that time she  worked  as
a physician for the Air Force.  Paragraph 10d states that while  she  was  a
member of the HPSP in good standing the Air Force could have  separated  her
and recouped the total cost of advanced education in lieu of calling her  to
active duty.  Two points show this paragraph does not apply.  First, she  is
no longer an HPSP student; she completed her  studies  as  required  in  her
contract.  Second, the Air Force has already  called  her  to  active  duty.
Paragraph 10d applies to persons who are still students  who  have  not  her
been called to active duty.  The difference between the 10  U.S.C.  Sections
2005(a)(3) and (a)(4) and paragraph 11 is  that  the  statute  requires  the
Secretary to prescribe terms and conditions to protect the interests of  the
United States and paragraph  11  states  that  she  could  be  separated  if
retention  were  not  clearly  consistent  with  the  interest  of  national
security.  Nowhere does the Air Force show that she  was  separated  in  the
interest of national security other than to say so.

The advisory claims that she failed to meet  "physical  fitness"  standards.
"Physical fitness" in  the  military  is  a  term  that  is  different  from
"medical fitness."  Physical  fitness  refers  to  the  ability  to  perform
physical tasks.  Once a  service  member  is  diagnosed  with  something  as
severe as cancer, physical  fitness  is  prohibited  per  regulations  until
treatment is complete.  If the advisory  is  contending  that  she  did  not
comply with physical fitness standards, she only followed regulations.

Footnote 4 of the advisory opinion claims that AFIs 36-3206 and AFI  36-3207
do not seem to apply here, which was the point of mentioning the AFIs.   The
referenced AFIs make no mention of the process that the  Air  Force  is  now
trying to use for recoupment.  The Air Force does  not  have  the  authority
even in its own AFIs to recoup the debt.  The opinion is bereft of  any  AFI
that  supports  recouping  the  medical  school  costs  when  a  person   is
discharged for disability.  The statute states that the  SAF  may  prescribe
terms and conditions to support recoupment for national  interest,  but  the
SAF never put these terms and conditions in any sort of AFI.

The advisory opinion does not address the applicant's contentions  that  the
record contains material errors, inaccuracies and was unjust  and  does  not
touch on the request that the debt be deemed "erroneous"  and  that  she  be
granted a waiver as an alternative.  The silence can be construed  as  tacit
acceptance that her contentions deserve merit.

Counsel's complete response is at Exhibit S.

_________________________________________________________________

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 that would warrant  corrective  action.   We
took notice of applicant's and counsel's  complete  submissions  in  judging
the merits of  the  case;  however,  the  Board  majority  agrees  with  the
opinions  and  recommendations  of  the  Air  Force   offices   of   primary
responsibility and adopts their rationale as the basis for their  conclusion
that the applicant has  failed  to  sustain  the  burden  of  proof  of  the
existence of either an error or injustice  in  this  case.   Notwithstanding
the fact that the applicant's disqualifying condition was not the result  of
misconduct and was through no fault of her own, she entered into a  contract
which provided that if she became unable to  commence  the  period  of  ADSC
specified or to complete her  medical  education  she  would  reimburse  the
government for the cost of her medical  education.   We  took  note  of  her
counsel's disagreement with the Air  Force  evaluators'  assessment  of  the
applicability and the differing interpretations of the  applicable  statute.
However, it is the Board majority's opinion that counsel has failed to  show
that the underlying statute is clearly not applicable,  that  the  debt  was
inappropriately  established  or  that  the  applicant  has   been   treated
differently than similarly situated individuals.   We  considered  counsel's
request that relief be granted on the merits of  a  hardship;  however,  the
Board majority is not persuaded by the evidence  presented  that  relief  is
warranted on that basis either.  Therefore, absent  persuasive  evidence  to
the  contrary,  the  Board  majority  is  not  compelled  to  recommend  her
obligation to reimburse the government be remitted or waived.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the panel finds insufficient evidence of  error  or  injustice
and recommends the application be denied.

_________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2006-00282
in Executive Session on 13 Feb 08, under the provisions of AFI 36-2603:

      Mr. James W. Russell III, Panel Chair
      Ms. Barbara J. Barger, Member
      Mr. James L. Sommer, Member

By a majority vote, the Board voted to deny the request.   Mr. Sommer  voted
to correct the record and did not desire to submit a minority  report.   The
following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 24 Jan 06, w/atchs.
    Exhibit B.  Applicant's Available Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPAME, dated 6 Feb 06, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 10 Feb 06.
    Exhibit E.  DD Form 149, dated 26 Feb 07, w/atchs.
    Exhibit F.  Letter, Counsel, dated 8 Mar 06, w/atch.
    Exhibit G.  Letter, SAF/MRBC, dated 10 Mar 06.
    Exhibit H.  Letter, SAF/MRBC, dated 16 Oct 06.
    Exhibit I.  Letter, Counsel, dated 3 Nov 06.
    Exhibit J.  Letter, SAF/MRBC, dated 27 Mar 07, w/atchs.
    Exhibit K.  Letter, Counsel, dated 26 Apr 07, w/atchs.
    Exhibit L.  Letter, SAF/MRBC, dated 1 May 07, w/atchs.
    Exhibit M.  Letter, SFA/MRBC, dated 2 May 07.
    Exhibit N.  Letter, Counsel, dated 3 May 07.
    Exhibit O.  Letter, Counsel, dated 28 Nov 07.
    Exhibit P.  Letter, SAF/MRBC, dated 5 Dec 07.
    Exhibit Q.  Letter, HQ USAF/JAA, dated 7 Dec 07.
    Exhibit R.  Letter, SAF/MRBC, dated 17 Dec 07.
    Exhibit S.  Letter, Counsel, dated 16 Jan 08.




                                             JAMES W. RUSSELL III
                                             Panel Chair


AFBCMR BC-2006-00282




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

      The pertinent military records of the Department of the Air Force
relating to APPLICANT, be corrected to show that at the time of her
discharge from the Air Force, the Secretary of the Air Force found that
under the particular circumstances of her case, her discharge for physical
disqualification was not within the meaning of Title 10, United States
Code, Section 2005, and that accordingly, no debt was established to
reimburse the United States for funds expended on her education under the
Armed Forces Health Professions Scholarship Program.








            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency




                   MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                   FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:    AFBCMR Case on

      I have carefully reviewed all of the circumstances of this case and I
do not fully agree with the majority of the panel members that remittance
of the applicant's debt to the government is not warranted in this case.

      The applicant was discharged from the Air Force on 3 Dec 03 by reason
of physical disability.  Her disqualifying condition was not a result of
misconduct and the condition arose through no fault of her own.  I am not
unmindful of the Air Force position on this matter and her contractual
obligation to reimburse the government for the substantial amount of money
spent on her education; and, I understand that she was reasonably aware
that her inability to complete her medical education program or commence
the period of the specified Active Duty Service Commitment (ADSC) would
render her susceptible to recoupment.

      Counsel for the applicant notes that the applicable statute was
amended in 1996 and specifically included a requirement for recoupment of
funds expended for individuals unable to complete their training or serve
the ADSC because of physical disability.  Counsel argues that the statute
in effect when she signed her Fiscal Year 1993 contract was silent
regarding physical disability and that the language of the statute did not
apply in her case.  The majority of the Board did not believe that her
counsel provided clear evidence that the underlying statute was not
applicable in this case and recommends denial of her request.  Contrarily,
the minority member notes that it appears that the Air Force has not
clearly shown that the statute was appropriately applied and recommends
approval.  Nevertheless, it appears that the legislation regarding this
matter is not unambiguous, thus, it is my opinion that the existence of
reasonable doubt has been established and in this particular case I believe
the benefit of such doubt should be resolved in favor of the applicant.

      Accordingly, in view of the above, an instrument should be prepared
for my signature directing that her records be corrected to show no debt
was established at the time of the applicant’s discharge from the Air
Force.









     JOE G. LINEBERGER

     Director
      Air Force Review Boards Agency