MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 February 2002
         DOCKET NUMBER: AR2001061590

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Ms. June Hajjar		Chairperson
Ms. Karol A. Kennedy		Member
Mr. Roger W. Able		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: Nullification of his alleged debt.

APPLICANT STATES: That he received a commission in the US Army from
the United States Air Force (USAF) Academy for the sole purpose of a career
in the Army, Air Defense Artillery Branch, which was not available to him as a non-rated officer in the USAF. After his transfer, the United States Armed Forces studied the interservice transfer of the Patriot Missile System from the US Army Air Defense into the USAF, to be consistent with operations in (all) other countries, which did not occur apparently due to economic and other reasons. He achieved branch qualification and completed fully funded graduate schooling, which is the issue of his alleged debt, and was involuntarily transferred into a support career field in the US Army Acquisition Corps. His transfer occurred despite his excellent performance and the availability of other qualified officers
to fulfill the needs of the service. His involuntary transfer into the Acquisition Corps was a complete contradiction of his interservice transfer to pursue a career in missile defense, since the USAF has a similar support career field. His total time served on active duty upon resigning his commission (12 years) would be equivalent to the service obligation after his completion of fully funded graduate schooling as a distinguished military graduate and as a non-rated officer in the USAF, or in a support career field in the US Army, such as the Chemical Corps. He also states that other commands would have allowed him to attend graduate school earlier and he sought only those assignments with reasons for an interservice transfer supporting a career in missile defense. He further stated that Army Regulations required collection before separation and that he had served the equivalent obligation to nullify any alleged debt for fully funded graduate schooling. In support of his application, he submits copies of:
a letter from the Air Force Cadet Wing, US Air Force Academy, dated 14 November 1978; a DA Form 4187 (Personnel Action); his Officer Record Brief (ORB); and his DD Form 214 (Certificate of Release or Discharge from Active Duty).

EVIDENCE OF RECORD: The applicant's military records show:

The applicant provided a copy of a letter from the Air Force Cadet Wing, USAF +
Academy, dated 14 November 1978, which stated that the applicant acknowledged that he had been afforded the opportunity to state a preference, and freely chose to be commissioned a second lieutenant in the US Army Air Defense Artillery Branch upon graduation from the USAF Academy.

He was appointed as a second lieutenant in the United States Air Force on 30 May 1979.

On 6 June 1979, he was appointed as a second lieutenant in the Regular Army in the Air Defense Artillery Branch.

The applicant’s records contain a copy of DA Form 1059-1 (Civilian Institution Academic Evaluation Report) which shows that the applicant completed his Master of Engineering degree at Cornell University in Ithaca, New York during the period 19 January 1989 through 22 August 1990 (578 days).

On 6 June 1991, the applicant submitted his request for unqualified resignation in order to attend medical school at the University of Colorado. He also stated in his request that he was currently serving a remaining active duty obligation of
4 years for his fully funded graduate school at Cornell University. The appropriate authority approved the request on 10 July 1991.

The applicant’s records contain a copy of Headquarters, US Army Missile Command Orders Number 171-7, dated 5 September 1991, which is an amendment to Orders Number 168-14, dated 30 August 1991. It stated that in accordance with Title 10, United States Code, section 1005 (which is now known as section 2005), that the applicant was required to reimburse the US Government for failing to complete his service obligation which was incurred by his participation in the Advanced Civil Schooling Program. The cost of education was $25,684.01, with a service obligation of 4 years, 9 months, and 0 days which commenced on 23 August 1990. The Finance and Accounting Office computed the amount due the US Government based on the unserved portion of active duty as it bears to the total obligation he agreed to serve.

He was discharged on 15 September 1991, under the provisions of Army Regulation 635-120, chapter 3, for miscellaneous reasons (unqualified resignation). He had a total of 12 years, 3 months, and 10 days of creditable service.

Information was provided by the Defense Finance and Accounting Service (DFAS) Center in Denver, Colorado to a staff member of the Board. This information stated that the applicant received $25,684.01 for the cost of education for 4 years and 9 months commencing on 23 August 1990. This amount due to the government was based on total obligation, less unserved portion, and that they did not have a copy of the applicant’s contract and precomputation worksheet or any documents concerning the recoupment action. It also stated that the applicant’s current balance was $18,269.51, with accumulated interest and penalty charges waived, and that charges would continue to accrue each 30 days.

The applicant provided a copy of a letter from the Directorate of Debt and Claims
Management, Defense Finance and Accounting Service (DFAS) in Denver, Colorado, dated 6 April 2000. The letter stated that the applicant had a valid debt in the amount of $18,269.51.


Army Regulation 635-120 (Officer Resignations and Discharges) implements the statutory provisions of Title 10, United States Code, governing officer separations and provides policies and procedures for separating officers from active duty.
Paragraph 1-8 of the regulation states that, individuals who participate in certain advanced education programs, who fail to complete their education requirements, or active duty or Reserve Component obligation, are subject to
recoupment provisions. This must be accomplished prior to separation of an individual who has not fulfilled the service obligation incurred as a result of participation in the advanced education program.

Army Regulation 350-100 establishes guidance on active duty service obligations
(ADSOs) for officers, defines how service obligations will be computed and served, and establishes how officers will be notified of service obligations. This regulation applies to all Army commissioned officers and warrant officers serving on active duty. It states, in pertinent part, that officers incur an active duty service obligation when they complete certain formal education or training programs, undergo a permanent change of station (PCS), or who accept career status or certain promotions. Officers must fulfill ADSOs before they are eligible for voluntary separation. Officers will not be further obligated beyond the dates
voluntary ADSOs are fulfilled without their consent, either expressed or implied.

Paragraph 2-8 of the same regulation states that officers who attend fully funded courses at civilian institutions for more than 60 days will incur an ADSO on completion or termination of the education. ADSOs equal three times the length of schooling, computed in days.

Title 10, U. S. Code, section 2005, pertains to advanced education assistance, active duty agreement, and reimbursement requirements. It states that the Secretary concerned may require, as a condition to the Secretary providing advanced education assistance to any person, that such person enter into a written agreement with the Secretary concerned under the term of which such persons shall agree: 1) to complete the educational requirements specified in the agreement and to serve on active duty for a period specified in the agreement; 2) that if such person fails to complete the education requirements specified in the agreement, such person will serve on active duty for a period specified in the agreement; 3) that if such person, voluntarily or because of misconduct, fails to complete the period of active duty specified in the agreement, or fails to fulfill any term or condition prescribed pursuant to clause,
such person will reimburse the US in an amount that bears the same ratio to the total cost of advanced education provided such person as the unserved portion of active duty bears to the total period of active duty such person agreed to serve; or 4) to such other terms and conditions as the Secretary concerned may prescribe to protect the interest of the United States.


DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The evidence of record shows that the applicant completed his Master of Engineering degree at Cornell University in Ithaca, New York during the period 19 January 1989 to 22 August 1990 (578 days), which was fully funded by the US Army.

2. The Board notes that the applicant submitted his request for unqualified resignation in order to attend medical school and stated that he was currently serving a remaining active duty obligation of 4 years for his fully funded graduate school. This request was approved and the applicant was honorably discharged on 15 September 1991.

3. The applicant’s unqualified resignation was accepted and approved, despite his service remaining obligation which was not fulfilled prior to his separation. Army Regulation 635-120 states that graduates of fully funded commissioning programs must complete their active duty service obligation incurred by participation in such programs and that individuals who failed to complete their requirement are subject to recoupment provisions. The regulation also states that this action must be accomplished prior to separation of an individual who has not fulfilled the service obligation incurred as a result of participation in the advanced education program.

4. The Board also notes that the applicant’s separation orders stated that in accordance with Title 10, US Code, section 1005 (currently known as section 2005) that the applicant was required to reimburse the US Government for failing to complete the service obligation incurred by his participation in the Advanced Civil Schooling Program. The cost of education was $25,684.01, with a service obligation of 4 years, 9 months, and 0 days which commenced on 23 August 1990.

5. Information provided by DFAS Center in Denver, Colorado stated that the applicant received the stated amount for the period above and that this amount was due to the government based on total obligation less unserved portion. DFAS also stated that they did not have a copy of the applicant’s contract and precomputation worksheet or any documents concerning the applicant’s
recoupment action. The applicant’s current balance is now $18,269.51, with accumulated interest and penalty charges waived, and with charges continuing to accrue each 30 days. The applicant was notified on 6 April 2001, that his debt in the amount of $18,269.51 was valid.



6. The Board has concluded that the applicant understood that he would incur
an ADSO upon completion of his fully funded civilian schooling and the consequence for not fulfilling his obligation. He was also aware of the recoupment provisions in accordance with regulation; however, he failed to comply and elected to be separated. The Board has acknowledged, based on the evidence provided, that his debt is valid. Therefore, he is not entitled to nullification of his alleged debt.

7. In order to justify correction of a military record the applicant must show to the
satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

8. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

_kak_____ _rwa____ __jh____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001061590
SUFFIX
RECON
DATE BOARDED	20020205
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19910915
DISCHARGE AUTHORITY	AR 635-120, chapter 3
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 1026
2.
3.
4.
5.
6.