RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-01570

		COUNSEL:  NONE

		HEARING DESIRED:  NO 


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APPLICANT REQUESTS THAT:

She receive a waiver of the recoupment of the debt she owes related to her United States Air Force Academy (USAFA) education.  

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APPLICANT CONTENDS THAT:

She questions the validity of the basis for recoupment of her USAFA education debt due to the ambiguous language contained in AFI 36-3206, Administrative Discharge Procedure for Commissioned Officers, and AFI 36-3207, Separating Commissioned Officers.  Specifically, these instructions characterize causes for involuntary and voluntary separations, none of which included the reason for her separation.  As a result of being twice passed over for promotion to captain, she was unable to complete her outstanding active duty service commitment (ADSC); as a result she incurred a debt related to her USAFA education.  

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

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STATEMENT OF FACTS:

The applicant’s military personnel records indicate she was commissioned in the Regular Air Force on 28 May 08.

In accordance with AFI 36-2107, Active Duty Service Commitments (ADSC), the applicant incurred a five-year ADSC after her entry on active duty.  

On 31 Mar 13, the applicant was honorably discharged, with a narrative reason for separation of “Non-Selection, Permanent Promotion,” and was issued a separation program designator (SPD) code of “JGB” and RE code of “Not Applicable.”  She was credited with 4 years, 10 months, and 3 days of total active service.  

The remaining relevant facts pertaining to this application are described in the letters prepared by DFAS and the Air Force offices of primary responsibility, which are attached at Exhibits C, D, and E.  

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AIR FORCE EVALUATION:

DFAS recommends relief be granted, indicating that there are competing statutes and implementing directives which prevented the applicant from fulfilling her five-year ADSC.  Specifically, 10 USC § 2005 and 37 USC § 303a indicate recoupment of education assistance if the member fails to complete the prescribed ADSC; and 10 USC § 631, indicate the statutory requirement that a member who fails two promotion opportunities to the grade of captain must be separated by the first day of the seventh month after the promotion is approved.  In this case, the applicant’s promotion opportunity was reduced in calendar year 2011 and 2012 and she was not selected for promotion to captain in October 2012.  By law, the applicant had to separate from active duty no later than 1 May 2013.  As a result, she was two months shy of fulfilling her five-year ADSC.  It was legally impossible for the applicant to fulfill her commitment and she asked for an earlier separation date of 31 March 2013, one month prior to her maximum date of release from active duty.  In accordance with Department of Defense Financial Management Regulation (DoDFMR), Volume 7A, chapter 2, paragraph 020203, as a general rule, repayment action will not be pursued in situations in which the member’s inability to fulfill specified service conditions related to a pay or benefit is due to circumstances determined reasonably beyond the member’s control.  It seems clear that Federal and Air Force policy prevented the applicant from fulfilling her ADSC and the debt should be remitted.  

A complete copy of DFAS evaluation is at Exhibit C.  

AFPC/DPSOO makes no recommendation, but indicates the applicant met and was non-selected for promotion by the CY11C (P0311C) and the CY12C (P0312C) Captain Line Central Selection Boards.  There are no provisions in policy or law that allow a twice deferred lieutenant to remain on active duty.  As a result, the applicant was required to separate.  

A complete copy of the AFPC/DPSOO evaluation is at Exhibit D.

AFPC/DPSOR recommends denial, indicating in accordance with AFI 36-3207, the Secretary of the Air Force directed the applicant’s discharge due to her second non-selection for promotion to captain.  Also, in accordance with USC Title 37, Pay and Allowance of the Uniformed Services, a member paid a bonus, incentive pay, or similar benefit in which the receipt is contingent upon the member’s satisfaction of certain service or eligibility, shall repay the United States any unearned portion if the member fails to fulfill their requirement.  In this case, the applicant was not selected for promotion and was given a SPD code which authorized recoupment of the unearned portion of her educational benefits.  The applicant’s SDP code was the reason for her recoupment and not the AFI that was applied to her separation.  Therefore, recoupment should be applied to the applicant’s situation.  

A complete copy of AFPC/DPSOR evaluation is at Exhibit E.  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 13 Dec 13 for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit F).  

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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 injustice.  The applicant contends that the debt she incurred related to her Air Force Academy education was unfairly levied because she was unable to complete her outstanding ADSC due to circumstances beyond her control.  We considered the applicant’s complete submission in judging the merits of the case and agree with the opinion and recommendation of DFAS and adopt its rationale as the basis of our conclusion the applicant has been the victim of an injustice.  While we note the comments by AFPC/DPSOR indicating that by law and directive, the applicant could not remain on active duty since she was twice passed over for promotion, in our view, while it appears the provisions of the applicable directives were correctly applied, we believe the applicant is the victim of an injustice.  In this respect, we note the applicant was unable to fulfill her active duty service commitment due to circumstances beyond her control; specifically, she was non-selection for promotion, which resulted in the establishment of her mandatory separation date (MSD).  Therefore, in view of the foregoing, we believe that it would be in the interest of justice to waive repayment of the contested debt associated with the unearned portion of the applicant’s educational cost.  Therefore, we recommend her records be corrected as indicated below.  

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that competent authority approved her request to waive recoupment of the unearned portion of the debt related to her United States Air Force Academy (USAFA) education.  

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The following members of the Board considered AFBCMR Docket Number BC-2013-01570 in Executive Session on 13 Feb 14, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

All members voted to correct the records as recommended.  The following documentary evidence was considered:

	 Exhibit A.  DD Form 149, dated 26 Mar 13, w/atchs.  
	 Exhibit B.  Applicant's Master Personnel Records.
	 Exhibit C.  Letter, DFAS, dated 16 Sep 13, w/atchs.  
	 Exhibit D.  Letter, AFPC/DPSOO, dated 7 Oct 13.  
	 Exhibit E.  Letter, AFPC/DPSOR, dated 8 Oct 13.
	 Exhibit F.  Letter, SAF/MRBR, dated 13 Dec 13.




                                   
                                   Panel Chair






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