RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-05064	
 			COUNSEL:  NONE
			HEARING DESIRED:  NO


APPLICANT REQUESTS THAT:

The recoupment action be revoked and the payroll deduction for 
the debt in the amount of $1,997.95 for Tuition Assistance (TA) 
be reimbursed.  


APPLICANT CONTENDS THAT:

The Air Force Personnel Center (AFPC) initiated recoupment of TA 
benefits upon his involuntary separation without considering the 
reason for his separation.

He was involuntarily separated In Accordance With (IAW) AFI 36-
3207, Separating Commissioned Officers, paragraph 3.4, non-
selection for promotion.  Per paragraph 1.16, there is no basis 
for recoupment of TA benefits.  

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


STATEMENT OF FACTS:

On 24 May 03, the applicant entered the Regular Air Force.

According to a DD Form 139, Pay Adjustment Authorization, dated 
5 Sep 13, the 902nd Force Support Squadron (902 FSS), Randolph 
AFB, TX initiated recoupment in the amount of $1,997.95 for non-
completion of an Active Duty Service Commitment (ADSC) for 
college courses while using TA.  

According to his DD Form 214, Certificate of Release or 
Discharge from Active Duty, on 30 Sep 13, he received an 
honorable discharge, with narrative reason for separation of 
“Non-Selection, Permanent Promotion” and was credited with 
10 years, 4 months and 7 days of active duty service.  

In Accordance With (IAW) AFI 36-2501, Officer Promotions and 
Selective Continuation, dated 16 Jul 04, a promotion is not a 
reward for past service; it is advancement to a higher grade 
based on past performance and future potential.  The fundamental 
purpose of the officer promotion program is to select officers 
through a fair and competitive selection process that advances 
the best-qualified officers to positions of increased 
responsibility and authority and provides the necessary career 
incentive to attract and maintain a quality officer force.


AIR FORCE EVALUATION:

AFPC/DPSOR recommends denial indicating there is no evidence of 
an error or an injustice in the processing of his discharge.  
The applicant had an ADSC for TA at the time of his separation 
which would indicate that recoupment would apply.  Additionally, 
there is no record showing he requested a waiver of the debt 
through DPSOR to the Secretary of the Air Force prior to his 
discharge.  AFI 36-3207, paragraph 1.15.1, states “The Air Force 
normally requires recoupment of a portion of education 
assistance, special pay, or bonus money received when officers 
separate before completing the period of duty they agreed to 
serve.”  The basis for recoupment can also be found in DoDFMR 
7000.14-R, Volume 7A, Chapter 2 and 37 U.S.C. 303a(e) which 
states “if a member under a written agreement for pay or benefit 
does not fulfill the service conditions for the pay or benefit, 
then repayment of the unearned portion of the pay or benefit 
will be sought, unless the Secretary of the military department 
concerned (or designee) makes a case-by-case determination that 
to require repayment of an unearned portion of the pay or 
benefit would be contrary to a personnel policy of management 
objective, against equity or good conscience, or contrary to the 
best interest of the United States.”  

A complete copy of the DPSOR evaluation is at Exhibit C.

AFPC/JA recommends the applicant’s request be denied as he has 
failed to establish a material error or injustice.  The 
applicant contends that the Air Force is not considering the 
nature of his involuntary separation which was beyond his 
control.  However, the failure to be promoted was primarily 
within his control, as his duty performance fell short of what 
was required to serve at the next higher grade.  JA sees this as 
conduct that was ultimately within his control and recoupment 
based on this failure is not unconscionable or inequitable under 
the circumstances.  

A complete copy of the JA evaluation is at Exhibit D.  


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He disagrees with the interpretation of 37 U.S.C. § 303a(e), 
DODFMR 7000-14-R and AFI 36-3207.  The law states that the 
Secretary concerned determines if repayment is contrary to 
personnel policy or management objective, against equity and 
good conscience or contrary to the best interest of the Air 
Force.  In his case, DOD 7000-14-R, paragraph 0201, states that 
repayment is the default rule unless the member’s failure to 
fulfill specified service conditions is due to circumstances 
determined reasonably beyond the member’s control.  The general 
rule is that repayment will not be sought if the conditions of 
receipt of the benefit cannot be met due to circumstances 
outside of the member’s control.  He was passed over for 
promotion to the grade of major, as were 10 to 15 percent of all 
captains, not because he did anything wrong but because the Air 
Force simply could not promote everyone.  It is clear that his 
discharge was not reasonably within his control.  

The OPR also recommends denying his request stating that he did 
not dispute the debt or request a waiver through their office.  
The DD Form 139, Pay Adjustment Authorization, which authorized 
the deduction states that he was afforded the due process 
requirements of DOD 7000.14-R, Volume 7A, paragraph 500104A.  He 
was not.  Had he been given the 30 days of notice of the debt 
collection as is required, he would have disputed the debt.  He 
was not put on notice of the recoupment until he received his 
final Leave and Earnings Statement (LES).  

The applicant’s complete response 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.  Sufficient relevant evidence has been presented to 
demonstrate the existence of an injustice.  After a thorough 
review of the evidence of record and the applicant’s complete 
submission, we believe the applicant is the victim of an 
injustice.  We note that AFPC/JA states the failure to be 
promoted was within the applicant’s control as his duty 
performance fell short of what was required to serve at the next 
higher grade.  However, we disagree.  Paragraph 3.4 of AFI 36-
3207 describes the effects of a second failure of promotion to 
the grades of captain, major, and lieutenant colonel.  The 
paragraph appears in Chapter 3, “Involuntary Separations.”  We 
see no reason to consider a given separation reasonably within 
the control of the applicant when the controlling AFI already 
classifies it as involuntary. Furthermore, 37 U.S.C. § 303a(e), 
and DODFMR 7000-14-R states that the Secretary concerned 
determines if repayment is contrary to personnel policy or 
management objective, against equity and good conscience or 
contrary to the best interest of the Air Force.  Therefore, we 
recommend his record be corrected as indicated below.




THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air 
Force relating to the APPLICANT be corrected to show that on 
5 Sep 13, the Secretary determined that APPLICANT was not 
required to reimburse the United States government for the cost 
of funding he received from the Air Force Tuition Assistance 
Program in the amount of $1,997.95 for the classes taken between 
19 Apr and 30 Sep 12.


The following members of the Board considered AFBCMR Docket 
Number BC-2013-05064 in Executive Session on 20 Jan 15 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 3 Oct 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSOR, dated 29 Jan 14.
	Exhibit D.  Memorandum, AFPC/JA, dated 4 Dec 14.  
	Exhibit E.  Letter, SAF/MRBR, dated 8 Dec 14.
	Exhibit F.  Applicant’s Rebuttal, undated.