RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2008-00904
            INDEX CODE:  128.00
            COUNSEL:  DAVID P. PRICE,
                      BLUE LAW
            HEARING DESIRED:  NO
_________________________________________________________________

APPLICANT REQUESTS THAT:

She be relieved from her Armed Forces Health Professions Scholarship  (HPSP)
debt in the amount of $80,383.04.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She developed a genetic blood clotting disorder  that  necessitated  chronic
anticoagulation with a blood thinner.  The Air Force initially accepted  her
condition in 2002, but later decided that she was unfit for  continued  duty
in  Nov  05.   She  fought  the  discharge;  however,  complications  during
pregnancy along with the risk of being unemployed and uninsured  caused  her
to stop fighting before the Formal Physical Evaluation Board (FPEB)  in  Apr
06.  She recently received a bill from the Department of Defense  that  must
be paid in full over the next three years.

She was never given the opportunity to serve as an active duty physician  or
a  civilian  contractor.   The  Air  Force  paid  for  three  years  of  her
education; however, she does not feel she should have to repay the  debt  at
this point.  She believes she could have served in  some  capacity  but  was
never afforded the  opportunity.   Additionally,  the  Air  Force  has  been
deliberating its decision since Aug 02.

There is a shortage of primary care providers in her hometown where  she  is
currently employed as a  physician.   However,  she  may  have  to  consider
relocating to a higher paid location because of the HPSP debt.

The Air Force failed to offer her any alternatives  for  repayment  and  did
not address her medical condition/fitness for duty in a timely manner.

In support of the application, she submits a congressional interest  letter,
her personal statement, a timeline of events, a debt repayment  letter  from
the Defense Finance Accounting  Service  (DFAS),  and  her  notification  of
discharge package.

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

STATEMENT OF FACTS:

On 4 Jan 07, the Secretary of the Air Force (SAF) directed  the  applicant’s
honorable discharge from all appointments held  in  the  United  States  Air
Force.  SAF did not excuse any indebtedness incurred  by  the  applicant  to
the United States Government.  An expense summary revealed  that  $80,343.04
was expended on behalf of  the  applicant  for  educational  expenses.   The
amount was deemed  as  subject  to  recoupment  and  recoupment  action  was
requested.

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the letters  prepared  by
the appropriate office of the Air Force at Exhibits C and D.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPAME recommends denial.  DPAME states the applicant  was  sponsored
through the AFHPSP from 7 Aug 00 to 31 May 03,  resulting  in  a  three-year
active duty service commitment.  Educational  funds  expended  for  tuition,
books and supplies were $80,343.04.  Applicant applied  to  the  2002  Joint
Service Graduate Medical Education Selection Board  (JSGMESB)  for  Internal
Medicine residency training at active  duty  residency  training  locations;
however, she was selected  for  deferred  (civilian)  training  and  entered
internal medicine residency training from 1 Jul 03 through 30 Jun 06.

The JSGMESB did not consider her medical  qualification  (accession)  status
when   determining    placement    consideration.     Various    extenuating
circumstances are considered by a selection  board  regarding  placement  of
qualified applicants into  active  duty  training  facilities.   Applicants’
medical qualifications are not considered when selection is  determined  for
residency training; however,  medical  qualifications  are  considered  when
determining placement into active duty training locations.   Applicants  not
medically qualified by the time the JSGMESB convenes are not  likely  to  be
placed in active duty training because the individual may ultimately not  be
qualified.  Program directors are not likely  to  accept  an  applicant  for
commissioning who may  not  ultimately  be  able  to  enter  their  training
program.

On 9 Aug 04, applicant submitted a Reserve Component Health Risk  Assessment
(RCHRA) with documentation  from  her  health  care  provider  indicating  a
change in her medical  status.   The  documentation  was  evaluated  by  the
Surgeon General.  On  12  Oct  04,  it  was  determined  that  she  was  not
medically qualified for accession onto active duty.  On 18 Nov 04,  she  was
notified that a request for discharge had been forwarded to the  determining
office in order to determine her final disposition.
She applied to the 2004 JSGMESB for Rheumatology  fellowship  training;  but
was not selected.

DPAME notes that the SAF ordered recoupment.   As  the  applicant  signed  a
contract agreeing to its terms, she should  be  required  to  reimburse  the
government as agreed.

The complete DPAME evaluation, with attachments, is at Exhibit C.

HQ AFPC/JA recommends denial.  In Aug 02,  the  applicant  was  hospitalized
and treated for an abdominal blood clot.  As  part  of  her  treatment,  she
began  therapy  with  anti-coagulation  medication.   Recognizing  that  her
condition and treatment could render her unfit  for  military  service,  she
notified the appropriate  Air  Force  officials.   In  Feb  03,  HQ  AETC/SG
granted her  a  waiver  and  found  her  medically  qualified  for  military
service.

In  Jun  04,  while  participating  in  a  residency  program  for  Internal
Medicine,  the   applicant’s   anti-coagulation   treatment   became   “sub-
therapeutic” and she experienced a second abdominal blood clot.  In Aug  04,
she reported this most recent clotting episode  to  the  Air  Force  and  in
response SG found her medically disqualified for  military  service.   Based
on  her  medical  condition  and  chronic  anti-coagulation  drug   therapy,
administrative discharge proceedings were initiated.  She did not raise  any
issues with regard to her discharge processing.

On 4 Jan 07, The Secretary of the Air Force acting through the Secretary  of
the Air Force  Personal  Council  (SAFPC)  ordered  that  the  applicant  be
discharged with an honorable service characterization.  SAFPC  also  ordered
that “in accordance with Section 2005 of Title 10 United States  Code,  that
the applicant be required to reimburse  the  United  States  Government  for
funds expended on her education through the AFHPSP.”

Since her discharge, the applicant has been  working  as  an  internist  and
practicing medicine in Montana.

The contract signed by the applicant on 10 Mar 00 accepting  admission  into
the AFHPSP clearly states that “should  I  become  unable  to  commence  the
period of ADSC specified in this contract or become unable  to  complete  my
medical education, I agree to reimburse the United States in  one  lump  sum
for the total cost of advanced education  paid  by  the  US.  Government  as
specified in Title 10 USC 2005.”  Applicant  voluntarily  entered  into  the
agreement knowing that she could be subject to  recoupment  of  her  medical
education expenses.  She has been using her medical degree to  work  in  the
civilian sector and earn a living since her administrative  separation  from
service; therefore, recoupment of her educational costs is appropriate.

JA notes there is no requirement in either law or policy that the member  be
offered civilian service as an option.
The complete JA evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s case was administratively closed on 17 Sep 08 due  to  counsel’s
request  for  a  30-day  extension  (Exhibit  G).   Case  was  reopened  per
counsel’s response dated 18 Nov 08.  Counsel notes the Air  Force’s  refusal
to apply the clear language of a specific “Directive-type  memorandum”  from
the Office of the Undersecretary of  Defense  which  states  that  repayment
will not be sought for an unearned portion of  pay  or  benefits  where  the
injury, illness, or other impairment is  not  the  result  of  the  member’s
misconduct.  Both evaluations fail to mention or address the effect  of  the
directives promulgated subsequent to  the  applicant  executing  her  AFHPSP
contract in Mar 2000 that  negate  such  recoupment  language  in  the  HSPS
contracts and also provide for the statutorily approved  exceptions  to  the
recoupment requirement.  Although the applicant  provided  copies  of  these
relevant memoranda,  neither  evaluation  mentions  consideration  of  these
relevant directions from higher authority.

The advisory opinions place great weight  on  the  fact  that  there  is  no
indication that the applicant’s medical condition would interfere  with  her
ability to take advantage of her medical degree.  The  law  and  regulations
do not permit her to be subject to recoupment under the facts of this  case.
 Although there is no requirement that the Air  Force  offer  the  applicant
the option of serving her obligation in  a  civilian  capacity,  it  was  an
option which the Air Force could have chosen.

It  is  irrelevant  that  her  contract  may  have  contained  a  recoupment
provision.  It is irrelevant that the law(s) may  have  previously  provided
for recoupment.  It is irrelevant that she may be  able  to  practice  as  a
physician  in  a  civilian  capacity.   At  the  time  of  the   Air   Force
determination that the applicant was unfit to continue her military  service
and the decision was  made  to  separate  her  from  service,  the  relevant
statutory provisions of Titles 10 and 37 of the U.S.C. had been modified  by
the NDAA FY 2006 to permit exceptions to recoupment to  be  made  by  proper
authority;  and  the  appropriate  authority  had  DIRECTED  the   Assistant
Secretary of the Air Force (MR) that in  situations  such  as  Petitioner’s,
recoupment “will not be sought.”

Respectfully request applicant’s records be corrected to  reflect  that  her
separation from the Air Force was due  to  an  illness  which  was  not  the
result of her misconduct, which is  an  undisputed  fact  and  that  she  be
excused from her indebtedness as directed by law.

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

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The SAF/MRB (Legal Advisor)  notes  the  DoD  guidance,  dated  18  Sep  07,
clearly states “that where  the  inability  to  serve  was  due  to  medical
conditions beyond the member’s control  recoupment  would  not  be  sought.”
Applicant’s case was considered in Jan 07 under the stricter guidance  dated
8 Apr 05, but counsel  argues  that  the  Board  should  follow  the  Sep 07
guidance and find the Jan 07 decision either an error or injustice.

When  DoD  guidance  was  less  specific  the  Air  Force  usually   imposed
recoupment in HPSP cases based upon the principle that the member,  although
unfit  to  serve  for  reasons  beyond  his/her  control,  did  receive  the
contract’s so-called “benefit of the bargain” i.e., medical  training.   The
exceptions discussed in at least one or two cases or opinions was where  the
member would be unable to practice medicine (for example a debilitating  car
accident) or a compelling hardship reason (withdraw  after  a  year  or  two
from school due  to  a  spouse’s  life-threatening  illness).   The  Apr  05
guidance was a clear attempt to  impose  more  service  consistency  and  to
reiterate the importance of recoupment.  Subsequently, the Sep  07  guidance
moved in the direction of waiving recoupment in more circumstances  such  as
this because it stated “recoupment would  not  be  sought  if  the  member’s
inability to fulfill the eligibility requirements is  due  to  circumstances
beyond the member’s  control,”  and  then  specifically  list  the  member’s
illness or injury as not the  result  of  the  member’s  misconduct  as  one
example of that situation.

In May 08, the DoD again revisited  its  recoupment  policies.   Under  that
guidance DoD states that “as a general rule, repayment will  not  be  sought
if the member’s inability to fulfill the eligibility requirement is  due  to
circumstances determined to be  reasonably  beyond  the  member’s  control.”
Rule 3 in  Table  B  of  that  guidance  governs  the  applicant’s  specific
situation  (separation  for  medical  reasons).   That  rule  provides  that
recoupment will not be sought unless the Secretary  determines  that  it  is
appropriate due to a personnel policy or  management  objective,  equity  or
good conscience, or it is in the best interest of the United States.

The Sep 07 guidance was  not  yet  issued  when  the  applicant’s  case  was
decided.  Thus, the Legal Advisor does  not  agree  that  this  is  a  clear
example of not following DoD guidance as applicant’s counsel  asserts.   The
applicant’s case was decided under the guidance in effect at the time.

The Legal Advisor notes the Board has broad latitude to  consider  the  many
surrounding circumstances in deciding this case (the  delay  in  making  the
medical decision, the subsequent changes to policy, and  the  interpretation
of the current guidance as it would be applied to this case).   Despite  the
changing guidance, recoupment has consistently not  been  imposed,  even  if
there were a legal basis, if it was determined to be against equity  or  not
in good conscience.  The Board has the authority to waive the recoupment.

The complete Legal Advisor’s evaluation, with attachment, is at Exhibit L.
_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the evaluation was forwarded to applicant’s counsel on 23 Dec  08,
for review and comment within 30 days.  As of this  date,  this  office  has
not received a response (Exhibit M).
_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of an error or injustice.   The  recommendations  to  deny  relief
made by the Air Force offices of  primary  responsibility  are  duly  noted.
However, it appears their recommendations are based solely on the  repayment
provisions set forth  in  the  AFHPSP  contract  signed  by  the  applicant.
Although we disagree with the position  taken  by  the  applicant’s  counsel
that recoupment action against the applicant  violates  the  DoD  policy  on
recoupment enacted in September 2007, we nonetheless find  that  the  policy
provides a basis for us to consider whether relief should be  granted  based
on other relevant issues in the case as stated by  the  MRB  Legal  Advisor.
In that regard, we note the MRB Legal Advisor’s  statement  that  recoupment
has consistently not been sought, even where there is a legal basis,  if  it
is determined to be  against  equity  or  not  in  good  conscience.   After
reviewing the complete evidence of record and the circumstances that led  to
the applicant not being able to fulfill her contractual  obligation  to  the
Air Force, we believe to seek  recoupment  in  her  case  would  be  against
equity and not in good conscience.  It  appears  the  applicant  made  every
effort and had every  intention  of  fulfilling  her  obligation  under  the
contract.  However,  she  was  rendered  incapable  of  complying  with  the
requirements of her contract due to the development of an unfitting  medical
condition completely beyond her control.  Additionally,  the  extended  time
it took to resolve whether the applicant’s medical  condition  rendered  her
unfit was a mitigating circumstance that we also  considered.   In  view  of
the  circumstances  of  this  case,  the  prevailing  current  view   toward
recoupment for someone with similar circumstances, and the applicant’s  good
faith effort  to  fulfill  her  contractual  obligation,  we  recommend  the
applicant’s record be corrected as indicated below.
_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be corrected to show that 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 (AFHPSP).

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 5 February 2009, under the provisions of AFI 36-2603:

      Ms. Patricia J. Zarodikiewicz, Vice Chair
      Ms. Barbara J. Barger, Member
      Mr. Alan A. Blomgren, Member

The following documentary evidence was considered for AFBCMR  Docket  Number
BC-2008-00904:

      Exhibit A.  DD Form 149, dated 28 Feb 08, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, HQ AFPC/DPAME, dated 17 Apr 08.
      Exhibit D.  Letter, HQ AFPC/JA, dated 22 Jul 08.
      Exhibit E.  Letter, SAF/MRBR, dated 1 Aug 08.
      Exhibit F.  Letter, Counsel, dated 26 Aug 08, w/atchs.
      Exhibit G.  Letter, AFBCMR, dated 17 Sep 08.
      Exhibit H.  Letter, AFBCMR, dated 17 Sep 08 w/atchs.
      Exhibit I.  Letter, Counsel, dated 18 Oct 08.
      Exhibit J.  Letter, AFBCMR, dated 21 Oct 08.
      Exhibit K.  Letter, Counsel, dated 18 Nov 08.
      Exhibit L.  Letter, SAF/MRB (Legal Advisor) dtd, 18 Dec 08.
      Exhibit M.  Letter, AFBCMR, dated 23 Dec 08.




                                  PATRICIA J. ZARODKIEWICZ
                                  Vice Chair

                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC


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Office Of The Assistant Secretary

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AFBCMR BC-2008-00904


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
(AFHPSP).





            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency