RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2001-00122
		INDEX NUMBER:  128.10

		COUNSEL:  

		HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

His indebtedness to the government for repayment of his Air Force Reserve Officer Training Corp (AFROTC) scholarship in the amount of approximately $77,000 ($58,293.14 plus interest) be waived.

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APPLICANT CONTENDS THAT:

In a nine-page brief with three exhibits, the applicant’s counsel provides a chronological sequence of events leading up to the applicant’s disenrollment from AFROTC.  He also presents arguments to show that the action taken against the applicant was patently unreasonable and disproportionate to the applicant’s offense, that he once exceeded the AFROTC weight standard by eight ounces.

Among the key points made by counsel are the following:

	  1.  The applicant’s debt to the government of $77,000 is disproportionate whether or not his disenrollment is upheld.

	  2.  The electronic scale used to weigh the applicant had a margin of error of +/- one-half pound, the very amount that the applicant was deemed to be overweight.  The applicant consumed several glasses of water just prior to being weighed and therefore should not have been weighed under these conditions and then subjected to the body fat test.

Counsel argues that the applicant’s case presents the AFBCMR with precisely the kind of injustice that cries out for relief and that Congress had in mind when creating correction boards.  Counsel further states that the disproportionate injustice suffered by the applicant is all the more apparent upon considering eight “what-if” questions:

	  1.  What if the applicant “had been satisfied to graduate on‑time with only the one degree for which he contracted, at which time he satisfied all the physical and weight prerequisites for commissioning, or Detachment 790 had not endorsed his continuation of schooling in pursuit of a second degree”?

	  2.  What if the applicant “had not devoted his full attention and energy to the academics that he needed to graduate with two degrees rather than to physical fitness, as Detachment 790’s preexisting policy of not requiring 5th year seniors to retake the physical fitness test (PFT) seemed to allow and, in fact encourage”?

	  3.  What if his AFROTC detachment had scheduled him to take the PFT early in his final semester before his level of physical fitness deteriorated because of the ever-increasing time he had to spend on class work?

	  4.  What if the applicant had not been recovering from the flu when he took the PFT on 13 Dec 96?

	  5.  What if the applicant “had not been scheduled to retake the PFT five days after his wedding and on the day after Christmas”?

	  6.  What if the applicant had been afforded more than 13 days to prepare for the 26 Dec 96 retest?

	  7.  What if his AFROTC detachment had properly measured the 600-yard run portion of the PFT on 13 Jan 97?

	  8.  What if his AFROTC detachment had used a scale that was accurate enough to differentiate between his weight exceeding the standard and being the product of its own margin of error?

Counsel opines that with a different outcome under any of the scenarios painted in the eight “what-if” questions, the applicant would never have gotten to the ultimate “what-if” question:  What if the applicant did not drink one pound of water until after being weighed on 25 Jun?

Counsel concludes that the facts surrounding the applicant’s weigh-in on 25 Jun 97 do not support a conclusion that he exceeded the weight standard at that time, or justify his disenrollment from AFROTC.  Finally, even if the applicant’s disenrollment is deemed valid, the $77,000 debt he faces is a disproportionate, excessive, and unjust burden for him to bear.

Counsel’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant signed a contract to enter the AFROTC program on 26 Aug 92, with a four-year scholarship.  The contract placed the applicant on notice regarding his responsibility to meet the weight and physical fitness standards specified by AFROTC directives and outlined the potential consequences should he fail to do so.  By the summer of 96, the applicant had completed all prerequisites for graduation and commissioning.  However, he requested permission to delay his graduation in order to complete requirements for award of a second degree.  He was scheduled to be commissioned in Dec 96.  On 3 Sep 96, he was given a completed cadet briefing, which he acknowledged in writing, advising him of his responsibility to maintain physical fitness standards for his scheduled commissioning.  On 12 Nov 96, the applicant received a mid-term counseling advising him that before being commissioned, he would be required to pass a physical fitness test (PFT), pass a 1.5-mile run, and weigh-in.  The applicant acknowledged this information in writing.

On 13 Dec 96, the applicant was administered and failed the PFT.  Due to his pending commissioning date, he was administered the PFT again on 26 Dec 96.  He failed again.  On 10 Jan 97, HQ AFROTC waived the second failure due to the applicant not being given 30 calendar days to retest in accordance with AFROTC policy.  It was determined that the applicant should be retested on 13 Jan 97, 30 days from 13 Dec 96.  The applicant was administered the PFT again on 13 Jan 97 and failed.  A disenrollment investigation was initiated.

On 14 Jan 97, the applicant was notified of disenrollment proceedings.  He acknowledged receipt on 14 Jan 97.  The applicant submitted a statement, dated 10 Feb 97, stating why he should not be disenrolled.  On 24 Mar 97, his AFROTC Detachment requested that the applicant be disenrolled from AFROTC.  On 6 May 97, HQ AFROTC directed that the applicant be retained in AFROTC due to the documented inaccuracy of the 600-yard portion of the PFT completed by the applicant on 13 Jan 97.  The Detachment was required to correct the test and notify the applicant in writing that he had 30 days to prepare for a PFT retest.  They directed that if the applicant successfully completed the PFT he could be commissioned.

On 20 May 97, the applicant was advised in writing of HQ AFROTC’s decision, and notified that he would be required to complete the PFT, 1.5 mile run, and meet weight and body fat standards for commissioning.  On 25 Jun 97, the applicant was weighed and administered the PFT.  He passed the PFT, but his weight exceeded the maximum allowable weight (MAW) by 1.5 pounds.  The applicant was weighed again after his PFT.  This time he was only 0.5 pounds over his MAW.  He was then measured to determine his body fat content.  His body fat was calculated at 29%, while his maximum allowable body fat was 20%.  On 26 Jun 97, the applicant was administered and passed the 1.5-mile run.  He was weighed and measured again.  He exceeded his MAW by 1.5 pounds and his body fat content was 9% over.

On 7 Jul 97, the applicant was again notified of disenrollment proceedings.  The applicant acknowledged receipt on 7 Jul 97, and requested the assistance of an active duty officer regarding his case.  On 28 Aug 97, the applicant’s disenrollment package was submitted to HQ AFROTC.  In a memo dated 11 Sep 97, the applicant advised HQ AFROTC that he had been assisted in his case by two active duty Air Force officers.  On 8 Oct 97, the applicant was disenrolled from AFROTC effective 16 Oct 97.  Recoupment of scholarship benefits paid was directed in lieu of calling the applicant to active duty in his enlisted grade.  On 27 Oct 97, the applicant was notified of the recoupment action.

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AIR FORCE EVALUATION:

The Deputy Staff Judge Advocate, Air University, AFOATS/JA, evaluated this application and recommends that the applicant’s request be denied.

AFOATS/JA provides extracts from the governing directive, AFROTCI 36-2007, The Air Force Weight and Fitness Program,    15 November 1996, that was in effect during the times relevant to this case.  AFOATS/JA states that the applicant does not allege any error or injustice in any procedural aspect of his disenrollment.  Further, the accuracy of his body fat measurements is not challenged.  AFOATS/JA also responds to the “what-if” questions posed by applicant’s counsel.  He also provides a chronological statement of facts relevant to the case and an analysis of what he considers the four allegations made by the applicant through counsel.  Included in his analysis are the following:

	  a.  In regards to the applicant’s allegation that the debt of $77,000 is disproportionate, he states that maintaining body fat standards is a training requirement specified in the AFROTC contract.  The applicant had been in AFROTC for four years prior to the time that he failed to meet standards and had been successfully meeting all of the requirements and standards outlined in the contract.  Given the circumstances of this case, it is neither disproportionate nor unjust to order the applicant to repay scholarship benefits expended on his behalf.  The applicant was placed on notice as early as January 1997 that his commission was in jeopardy (when he was served with notice of disenrollment proceedings).  At that point, the Air Force had already expended over $58,000 on the applicant’s education.  After giving the applicant every possible chance to satisfy his remaining training requirements, AFROTC’s decision to disenroll him and order recoupment, when he failed to do so, is legally justified and proportionate.  The Air Force did not get the engineering officer it bargained for, but the applicant still has the engineering degree he obtained at Air Force expense.

	  b.  In reference to the inaccuracy of the electronic scale used to weigh the applicant, he states that this is an irrelevant issue since the applicant was disenrolled for exceeding body fat standards not for being overweight.  This also applies to his assertion of having drunk several glasses of water before being weighed.  He also points out that in addition to exceeding the maximum allowable weight, individuals are subject to body fat measurements for other reasons, such as appearance and at the direction of the commander.

The complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In an e-mail, dated 10 May 01, applicant’s counsel requested that the applicant’s case be temporarily withdrawn.  The Board approved counsel’s request on 11 May 01 (Exhibits E and F).

Applicant’s counsel responded to the Air Force evaluation in an eight-page brief of counsel with five exhibits.

Counsel addresses the issue of timeliness of the applicant’s appeal and gives his reasons why the applicant’s appeal should not be denied on this basis.  

Counsel argues that although AFOATS/JA focuses on body fat standards as the reason the applicant was disenrolled, the reality of the matter is that the applicant never would have been subject to a body fat test had he not exceeded his maximum allowable weight by 0.5 pounds.  Counsel considers AFOATS/JA’s evaluation “largely irrelevant and misdirected” because it ignores the reality that the applicant was disenrolled because he was deemed to exceed his MAW by ½ pounds--8 ounces.  Counsel states that although the evaluation is correct in stating that the applicant completed the PFT on 25 Jun 97, and the 1.5-mile run on 26 Jun 97, this is inconsistent with their analysis.  Counsel states that this goes to the heart of the case presented by AFOATS/JA.  He opines that AFOATS/JA recognizes that the applicant would have sweated off two full pounds during the 15 minute PFT and would have been below his MAW, would not have had his body fat measured, and would have been commissioned.  He states that the applicant was ½ pound above his weight because he drank one pound of water after completing the PFT, but before getting on the scale.

Counsel also asserts that AFOATS/JA glosses over the fact that when the applicant was weighed on 25 Jun 97, this marked the first time that he had exceeded weight standards and the first time he had his body fat measured.  Counsel indicates that the AFROTC Registrar claimed that the applicant’s disenrollment was required because exceeding the standard on 25 Jun 97 was the applicant’s third failure to maintain retention standards.  Counsel opines that this was only the applicant’s second recognizable retention standard failure and his disenrollment was not required.  The applicant should have been given an opportunity to correct his 25 Jun 97 failure as required by AFROTCI 36-2007.

Counsel indicates that AFOATS/JA tries to disregard the “what-ifs” presented in the applicant’s initial appeal by claiming that they do not matter because the applicant was disenrolled for violating the body fat standard on 25 Jun 97.  Counsel opines that they miss the point by viewing the body fat test in a vacuum.  He then discusses why the accuracy of the scale used to weigh the applicant, the pound of water he drank before being weighed, and the waived PFT failures are all relevant to the applicant’s appeal.

Counsel discusses the actions of the applicant’s AFROTC Detachment and seeks to dispel the assertion that they took extra efforts to help the applicant. 

Finally, counsel discusses the fact that the applicant had received permission to fulfill his commitment to the Air Force through the Air National Guard (ANG), which had less stringent physical standards and were anxious for the applicant’s service regardless of the weight problem.  Counsel opines that the ANG was denied the services of a highly qualified officer that it wanted and the applicant is now saddled with a massive debt for exceeding a weight/fat standard that did not really matter in the long run.

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

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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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt their rationale as the primary basis for our conclusion that the applicant has not been the victim of an error or injustice.  After considering counsel’s arguments submitted in his initial submission as well as rebuttal, we do not find any merit in his arguments to obviate the applicant’s responsibility for the situation he now finds himself.  We believe that the applicant was given reasonable opportunities to achieve and maintain the body fat standard that led to his eventual disenrollment.  In fact, the very directive referenced by counsel, AFROTC 36-2007, makes it clear that the applicant had the responsibility to “achieve and maintain” body fat standards.  Counsel’s argument seeks to take issue with the way in which the applicant’s violation of body fat standards was discovered, i.e., that the applicant was erroneously found to be one-half pound overweight.  AFROTCI 36-2007, paragraph 7, lists several circumstances besides exceeding the maximum allowable weight standard when body fat should be measured, i.e., when an individual appears to exceed the maximum body fat, does not present a professional military appearance, or whenever otherwise deemed appropriate by the unit commander.  Obviously, then, the applicant’s emphasis should have been on achieving and maintaining body fat standards, not on what circumstances would cause his body fat to be measured.  Counsel also argues that the AFROTC Commander’s failure to waive the applicant’s active duty service commitment was an injustice because the applicant had already been released from his active duty obligation and was slated to fulfill his obligation with the Air National Guard, which had (and has) less stringent physical standards.  We are not aware of and insufficient evidence has been presented to conclude that the AFROTC program was required to vary physical standards according to the component that a cadet may have been slated to serve in.  Finally, we fail to grasp counsel’s argument that the applicant’s debt is disproportionate.  It probably would appear so if one is inclined to accept counsel’s premise that the debt is due to the applicant drinking a couple of glasses of water or for being one-half pound overweight.  We do accept this simplified view.  Rather, we view the applicant’s debt as result of his failure to adhere to the terms of the contract that he freely entered into on 26 Aug 92.  Under the terms of the contract, the government has paid the cost of his education, which he should benefit from for the rest of his life.  Unfortunately, the government is not receiving anything in return.  We believe the contract clearly placed the applicant on notice as to the consequences of his failure to successfully complete his training, become a commissioned officer and to fulfill his active duty service commitment.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered Docket Number BC-2001-00122 in Executive Session on 1 June 2004, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 13 Nov 00, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFOATS/JA, dated 16 Mar 01,
                W/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 6 Apr 01.
    Exhibit E.  E-mail, Counsel, dated 10 May 01.
    Exhibit F.  Letter, AFBCMR, dated 11 May 01.
    Exhibit G.  Letter, Counsel, dated 8 Jan 04, w/atchs.

                                   
                                   Panel Chair