RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2001-00295
							INDEX CODE: 128.10
	 						COUNSEL: No 

							HEARING DESIRED: Not Indicated

MANDATORY COMPLETION DATE:  23 APR 06

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APPLICANT REQUESTS THAT:

Her debt in the amount of $63,299.69 for sponsorship in the Armed Forces Health Professions Scholarship Program (AFHPSP) not be recouped.

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APPLICANT CONTENDS THAT:

While she was being processed through the Disability Evaluation System, she was reassured that the Air Force would not recoup for her active duty service commitment (ADSC) if she were medically discharged.  The contract she signed indicated that if she was unable “to commence” her ADSC, she would have to pay back her educational expenses.  She completed her medical program as required and did “commence” her ADSC period on 4 Sep 99. She has served for a total of 2 years and 7 months since 12 Jun 98.  Since she was not involuntarily separated for any kind of misconduct, she requests to be excused from her obligation.

The applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant signed her AFHPSP Financial Assistance Contract on 17 Feb 94 and was sponsored through the AFHPSP program at Washington University, St. Louis, MO, from 1994-1998, resulting in a 4-year ADSC.  Scholarship funds expended for tuition, books and supplies were $97,275.89. (The applicant’s monthly stipends are specifically excluded from recoupment by 10 USC 2005. Statute now authorizes recoupment of stipends from those students who entered AFHPSP after 1 Oct 96.)

She applied to the 1997 Joint Service Graduate Medical Education Selection Board (JSGMESB) for a Transitional Year from 1 Jul 98-30 Jun 99. The board approved her training preference and her third training location at Malcolm Grow Medical Center (MGMC) at Andrews AFB, MD. She entered training on 1 Jul 98.

The applicant began experiencing daily/migraine headaches and post-partum depression following the birth of her child on 13 Oct 98. She voluntarily sought psychiatric assistance and, on 17 Dec 98, was voluntarily admitted to Walter Reed Army Medical Center as a psychiatric inpatient.  She was discharged three days later with the recommendation to restart clinical work but with regular hours and no call schedules initially.

On 24 Jan 99, the Transitional Year program director requested the applicant’s internship be extended until 3 Sep 99 in order to complete training. The extension was approved and her ADSC was adjusted to 14 Aug 03.

On 4 Sep 99, she was assigned to the 11th Medical Group, Bolling AFB, DC, as a general medical officer.  On 7 Sep she applied to the 2000 JSGMESB for Dermatology; however, she was not selected.

On 14 Sep 00, she was given a physical profile from practicing medicine because her ability to practice safely and effectively was impaired by severe pain from migraine headaches and sedating medications.  

A 2 Oct 00 MGMC Neurology Clinic Summary notes the applicant had a history of intermittent headaches that started four years ago and increased after the birth of her child to daily occurrences with migraine features. She also had a “significant past history” of depression.  Diagnosis was intractable migraine headache/daily headache. She was found not worldwide qualified. 

She was profiled again, on 30 Oct 00, for intractable migraine headaches/chronic daily headache. She was allowed to practice when she was headache free and not using sedating medications.

On 31 Oct 00, she was evaluated by a Medical Evaluation Board (MEB) and the Narrative Summary noted her history of migraine headaches and depression, as well as her feelings of anxiety and severe guilt over separation from her child.  She was diagnosed with intractable migraine headache/daily headache and major depressive disorder, recurrent, moderate with atypical features.  

The case was forwarded to an Informal Physical Evaluation Board (IPEB), on 27 Nov 00, and she was found unfit due to intractable migraine headaches associated with major depressive disorder.  The IPEB recommended placement on the Temporary Disability Retirement List (TDRL) with a disability rating of 30%.  On 29 Nov 00, the applicant concurred with the findings and recommendations.

On 3 Jan 01, HQ AFPC/DPAME informed the applicant that from 4 Sep 99 to 27 Jan 01, she fulfilled 510 days of her 4-year ADSC, paying off $33,976.20 of the $97,275.89 total funds expended.  That left a remaining debt of $63,299.69, for which recoupment action was being initiated.

In accordance with the IPEB’s findings and recommendation, the applicant was placed on the TDRL in the grade of captain effective 26 Jan 01 with 1 year, 7 months and 13 days of active service.

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AIR FORCE EVALUATION:

HQ AFPC/DPMAF2 forwarded an advisory from the Chief, Physician Education Branch, HQ AFPC/DPAME.  The Chief advised that recoupment is based on Title 10, USC, Section 2005.  The applicant signed her HPSP contract, thereby agreeing to the terms of the contract, and should be required to reimburse the government.  Her commissioning physical in Aug 93 and her accession physical in Nov 97 do not indicate disclosure of migraine headaches. The Chief does not dispute her medical condition; however, the timing of her original symptoms and diagnosis are inconsistent with her commissioning date and entry onto active duty.  Recommend disapproval.

A complete copy of the evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant takes exception to the facts as presented in the evaluation.  She never requested separation from the Air Force. She explains that in 1993 she had never before experienced any type of migraine headache and in 1997 she was not questioned about or was under treatment for headaches.  In 1997 she had never before experienced a transformed migraine/chronic daily headache.  There was no attempt to withhold disclosure of the common migraine-like headaches she experienced in medical school at any time.  Further, contrary to the advisory opinion’s assertion, she was not “de-credentialed” on 14 Sep 00.  She was placed on a temporary medical profile due to physical impairment (sedating medication for chronic pain). This did not revoke her credentials.  She again reiterates her contention that neither Title 10, USC, Section 2005, nor the AFHPSP contract call for scholarship recoupment in the case of medical discharge due to disability.  She possesses an unrestricted Virginia state medical license; however, she lives in Illinois where she does not have a license.  She is unemployed and ineligible for medical licensure in Illinois, which requires two years of post-graduate medical training.

The applicant’s rebuttal, with attachments, is at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

The Chief, General Law Division, HQ USAF/JAG, noted that Section 2005 provides for recoupment if a member fails to complete the ADSC voluntarily or due to misconduct. It also provides for recoupment if the member fails to fulfill such other terms and conditions as the Secretary concerned may prescribe to protect the interests of the United States.  If a member becomes physically disqualified to serve on active duty, the member shall reimburse the government the costs of education as provided for in Section 2005.  Since 1982, the Air Force has routinely asserted its right to recoup the costs of education provided to medically disqualified individuals under the HPSP program when their medical condition does not preclude them from practicing their profession in civilian life.  However, any recoupment action against a member on the TDRL is premature. Placement on the TDRL is by its very nature temporary.  It is possible that the applicant could be found fit for duty, returned to active duty, and complete her ADSC.  It would be inappropriate to begin recouping monies that might not be owed.  If in the future it is determined that the applicant is permanently physically unfit to return to duty, then the Air Force should assert its right to recoup the costs of her medical education.

A complete copy of the additional evaluation is at Exhibit F.

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APPLICANT’S REVIEW OF ADDITIONAL EVALUATION:

The applicant noted that she did, in fact, “commence” her ADSC on 4 Sep 99. Therefore, there is no authority for recoupment of the costs of her education according to the pertinent contract clause.  Further, taxpayers received compensation for her education through her outstanding and dedicated performance during her service as an intern and general medical officer.  Finally, her medical condition makes it virtually impossible for her to earn a living in a civilian medical practice. She is unable to get a medical license in her home state since she only has an internship, and residency training, both now and in the future, is improbable because it would exacerbate her depression and migraines. 

Her complete response is at Exhibit H.

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ADDITIONAL STATEMENT OF FACTS:

On 23 Jul 01, based on the applicant being placed on the TDRL and the HQ USAF/JAG advisory (Exhibit F), the AFBCMR Staff requested that DFAS-POCC/DE suspend debt collection temporarily until final disposition of the applicant’s medical condition (Exhibit I).  On 26 Jul 01, DFAS-POCC/DE advised that the recoupment action had been temporarily suspended pending a final determination from the AFBCMR (Exhibit J).

On 14 Aug 01, DFAS-POCC/DE advised the applicant that, based on her placement on the TDRL, it was inappropriate at this time to recoup monies which might not be owed if she were found fit and returned to active duty to complete her ADSC.  She was also advised that her inability to complete her ADSC had resulted in a $63,299.69 debt.  Further, she had received a $15,000.00 medical bonus upon entering into a one-year contract effective 4 Sep 00.  However, since she had only earned 143 days of the bonus, she owed $8,249.77 (Exhibit K).

On 23 Aug 01, the AFBCMR Staff advised the applicant that, pending final determination of her medical condition, her case had been temporarily closed (Exhibit L).

A 1 Mar 02 TDRL reevaluation summary disclosed the following:  The applicant still experienced 12-15 migraines per month.  She developed post-partum depression in her final year of medical school and had disappointing results with antidepressant medications.  She was currently unemployed and raising her three-year-old child.  Diagnoses were medically-refractory migraine headaches and depression.  The applicant was to continue to follow-up with her regular physician for migraine headache management.  Psychiatric evaluation diagnosed major depressive disorder, recurrent, due to migraines, by history, in partial remission.  Impairment for military duty was moderate; impairment for civilian social and industrial adaptability was mild.  The condition was determined to be in the line of duty, with service aggravation.  Her depression appeared to be improved; however, it continued to be maintained by the recurrent migraines.  Recommendation was that she return to psychotherapy for additional work with relaxation and to consider optimizing antidepressant or serotonergic medications.

On 19 Mar 02, an Informal Physical Evaluation Board (IPEB) convened and concluded her medical condition had improved since being placed on the TDRL and appeared to have stabilized.  She was found unfit, and discharge with severance pay with a disability rating of 10% was recommended.  On 11 Apr 02, the applicant did not concur and requested a Formal PEB (FPEB).  

The applicant presented a rebuttal statement for the FPEB, contending she should receive a 50% disability rating.  She also submitted statements from family members and friends which indicated how much they needed to help her.

A FPEB convened on 22 May 02, rendered a diagnosis of migraine headaches associated with major depressive disorder, existed prior to service (EPTS) with service aggravation.  She was rated at 30%, minus 20% for the EPTS factor, leaving a compensable rating of 10%.  The recommendation was that the applicant be discharged with severance pay at 10%.  The FPEB noted that, although the compensation was the same as recommended by the IPEB, the FPEB arrived there in a different manner.  Based on the applicant’s subjective reported pain, it would seem her migraines should be rated at 30%.  However, the FPEB noted the applicant had headaches prior to service and, in line with the precedent set by the Department of Veterans Affairs (DVA) in her recent evaluation, deduction for the EPTS factor was appropriate.  The applicant requested another TDRL period; however, the FPEB opined that sufficient time had been allowed.  

On 23 May 02, the applicant did not concur with the FPEB’s findings and recommendation.  She submitted a rebuttal statement, along with statements from relatives and friends.

On 24 Jun 02, the Secretary of the Air Force Personnel Council (SAF/MRBP) evaluated the applicant’s case and noted that the major medical condition, which led to the applicant’s initial MEB conducted on 31 Oct 00, was major depressive disorder.  The 27 Nov 00 IPEB decided to rate the applicant’s migraine headaches as the principal diagnosis and associated her depression condition.  The IPEB did not take into consideration that her headache condition existed prior to military service and was not likely permanently aggravated through military service.  Further, the 1 Mar 02 narrative summary for the TDRL reevaluation offered a final diagnosis of major depressive disorder, recurrent, due to migraines, by history, in partial remission, and offered a social and industrial adaptability of mild, which corresponded with a 10% disability rating.  The SAF/MRBP opined the applicant’s major depressive disorder, as correctly identified in her original MEB, was in fact the principal diagnosis, and that the headache condition, which EPTS, contributed to the degree of severity of her depression.  The applicant should be removed from the TDRL and discharged with severance pay, at 10% for major depressive disorder, associated with migraine headaches.  The SAF/MRBP recommended the applicant explore her eligibility for entitlement care through the DVA.

Effective 23 Jul 02, the applicant was removed from the TDRL and discharged in the grade of captain by reason of physical disability with entitlement to severance pay. 

She currently has a DVA disability rating totaling 70% for migraine, major depressive disorder, degenerative arthritis, and gynecological condition-general.

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On 17 Jun 05, the applicant wrote the AFBCMR contending that, based on the DFAS-POCC/DE letter, dated 14 Aug 01, and the AFBCMR letter, dated 23 Aug 01, her debt for $63,299.69 was cancelled based on her TDRL status and her case was administratively closed.  [Note:  This is not what these letters, nor the 6 Jun 01 HQ USAF/JAG letter, advise; the recoupment of her debt was merely temporarily suspended while on the TDRL pending final resolution of her medical condition.]  She contests the recoupment action as her contract did not provide for recoupment based on a discharge for disability.  She contends there is no provision under Title 10, USC, Section 2005, for reimbursement due to separation based on physical disability.  She was never advised of any reimbursement requirement during her initial MEB and chose not to contest their findings recommending separation.  She requests the debt be cancelled.

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

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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.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After a thorough review of the evidence of record and the applicant’s submission, we are not persuaded her debt, incurred as a result of sponsorship in the AFHPSP, should not be recouped. The applicant’s contentions are duly noted; however, we do not find these assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the Air Force.  The applicant appears to mistakenly believe that her $63,299.69 debt was permanently cancelled in Aug 01.  However, as recommended by HQ USAF/JAG and as indicated in the DFAS and AFBCMR letters to her, the recoupment action of her debt was merely temporarily suspended while she on the TDRL pending final resolution of her medical condition.  If the applicant had been found fit and returned to duty, presumably she would have been able to complete her four-year ADSC and thereby pay off her debt.  Instead, she was subsequently found unfit and discharged from the TDRL on 23 Jul 03, with severance pay at 10%, for major depressive disorder, associated with migraine headaches.  HQ USAF/JAG addressed the applicant’s contentions in their Jun 01 advisory and we agree with their opinions and recommendations. As HQ USAF/JAG indicated, Section 2005 also provides for recoupment if a member fails to fulfill any or such other terms and conditions as the Secretary concerned may prescribe; it does not merely apply to failing to meet the ADSC voluntarily or due to misconduct.  We also found interesting the attachments to Exhibit C, which appear to indicate the applicant clearly wanted to separate from the Air Force to be with her child.  Further, while the applicant advises she does not have a medical license in Illinois, where she now lives, she does possess an unrestricted Virginia state medical license.  The applicant contends she is unable to work, but we are unpersuaded that she is unable to repay the costs of her medical education as required by Section 2005.  She receives compensation from the DVA, her condition has shown improvement in the past with appropriate treatment, and she has failed to substantiate that she could not at some future time resume her medical career.  The windfall of a medical education without any reimbursement to the government, either through active service or recoupment, would not be in the best interests of the Air Force or the American taxpayer.  The applicant was treated no differently than other participants in the HPSP who have been required to reimburse the government after medical disqualification from active service.  We therefore agree with the recommendations of the Air Force and adopt the rationale expressed as the basis for our decision that the applicant has not sustained her burden of having suffered either an error or an injustice.  In view of the above and absent persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

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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 this application in Executive Session on 17 August 2005, under the provisions of AFI 36-2603:

			Panel Chair
			Member
			Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-20BC-2001-00295 was considered:

   Exhibit A.  DD Form 149, dated 24 Jan 01, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letters, HQ AFPC/DPMAF2 & DPAME, dated 17 Apr 01,
                  w/atchs.
   Exhibit D.  Letter, SAF/MIBR, dated 4 May 01.
   Exhibit E.  Letter, Applicant, dated 4 May 01, w/atchs.
   Exhibit F.  Letter, HQ USAF/JAG, dated 6 Jun 01.
   Exhibit G.  Letter, AFBCMR, dated 11 Jun 01.
   Exhibit H.  Letter, Applicant, dated 3 Jul 01.
   Exhibit I.  Letter, AFBCMR, dated 23 Jul 01.
   Exhibit J.  Letter, DFAS-POCC/DE, dated 26 Jul 01.
   Exhibit K.  Letter, DFAS-POCC/DE, dated 14 Aug 01.
   Exhibit L.  Letter, AFBCMR, dated 23 Aug 01.
   Exhibit M.  Letter, Applicant, dated 17 Jun 05.

                                   
                                   Panel Chair