RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  02-00848
		INDEX CODE 128.10
	  	COUNSEL:  None

	 	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

The debt he incurred as a result of his participation in the Armed Forces Health Professions Scholarship Program (HPSP) be cancelled.

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APPLICANT CONTENDS THAT:

During the scholarship he developed insulin dependent diabetes mellitus. Chapter 11 of the contract outlines the reasons that collection of this money may occur.  None of these reasons apply to him. He developed his condition involuntarily which was not in any way related to substandard duty performance, misconduct, moral or professional dereliction, and no inconsistency with national security was present. He should be excused from the debt.

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

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STATEMENT OF FACTS:

The applicant was commissioned a 2nd lieutenant and signed his HPSP/Financial Assistance Contract on 24 Feb 95. The government would pay for three years of medical education and the applicant, in return, would serve five years on extended active duty. He attended the University of Osteopathic Medicine and Health Sciences in Des Moines, IA. 

Based on a diagnosis of insulin dependent diabetes mellitus on 19 Apr 96, the applicant was notified on 27 Apr 96 that he was being recommended for discharge from HPSP and extended active duty for physical disqualification.  His scholarship benefits were discontinued effective 30 May 96. In response to HQ ARPC/DPAD’s 17 Jun 97 letter, the applicant indicated that he did not want to have his case entered into the Disability Evaluation System (DES), was not applying for transfer to the retired reserve and was not tendering his resignation. HQ ARPC/JA found the proposed discharge legally sufficient on 4 Feb 98, recommending the applicant be discharged and the HPSP expenditures be recouped. On 8 May 98, the Secretary of the Air Force Personnel Council (SAFPC) directed the applicant’s honorable discharge and recoupment of the HPSP funds. By Reserve Order No. CL-055, he was discharged from all Air Force appointments effective 14 May 98. 

On 18 May 98, HQ ARPC/DPAD advised the applicant that the Secretary of the Air Force did not excuse his indebtedness. On 13 Jun 98, he was notified that he had incurred a debt of $22,756.16 as a result of his HPSP participation.  According to a DFAS statement dated 22 Jan 02, provided by the applicant at Exhibit A, he has a remaining balance of $25,201.79.

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AIR FORCE EVALUATION:

AFIT/CIM provided their rationale for recommending denial.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In an undated letter, the applicant provided additional remarks but requested that his case be temporarily withdrawn so that he could obtain additional evidentiary and legal support.

In a 3 Jun 02 letter, the applicant’s state senator indicated agreement that the development of diabetes was not purposely contracted and was not one of the stated reasons for which the Air Force could claim reimbursement for scholarship money.

The applicant submitted additional comments, which were forwarded by his Congressional Representative to the AFBCMR Staff. The applicant contends a lawyer advised him that the recoupment action is erroneous and not supported by the contract. He did not meet the criteria for recoupment because he did not voluntarily develop diabetes. He was not professionally derelict or guilty of misconduct, nor was his performance substandard.

The applicant’s responses and the state senator’s letter are provided at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAG notes the applicant is correct that [paragraph 11] of his contract did not obligate him to repay the costs of his education. However, his assertion that recoupment for advanced education can be made only under these circumstances is incorrect. Title 10, USC, Section 2005(a) (4) as referenced in paragraph 6c of the contract provides the statutory authority to recoup for advanced educational assistance. Pursuant to this authority, paragraph 10 was included in the applicant’s contract, which provided he must meet and continue to meet Air Force physical standards. This is the contractual basis that made the applicant subject to recovery for failing to serve out the terms of his contract, not paragraph 11. Paragraph 10 placed him on notice of the consequences of being found physically unfit for service.  The Air Force made the determination that he was not physically qualified to continue in the program, as it was required to do, and followed the express terms of the contract thereafter. While it is true that the applicant’s disqualifying condition was not a result of misconduct or voluntary action, it is also true that the condition arose through no fault of the government.  The issue is not one of blame or fault. Here the parties to the contract entered into a clear document that provided that in the eventuality the applicant became physically disqualified, he would reimburse the government for the costs of his medical education to that point.  Taxpayers have given the applicant substantial monies for his education from which he will benefit for years to come. To permit him to benefit for this education for years, at no cost to him, would amount to his being unjustly enriched.  In situations where a disqualifying medical condition would prohibit an individual from using his or her education to earn a livelihood, then perhaps equity and fairness would militate against recoupment. The applicant’s disqualifying medical condition does not prevent him from using his government-financed education to pursue a profession for personal gain. As he indicated, he is a “fully functioning physician” and the government is entitled to the enforcement of its contract to be reimbursed for educational expenses.  Under these circumstances, JAG finds no error or injustice to the applicant and recommends denial.

A complete copy of the evaluation is at Exhibit F.

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APPLICANT’S REVIEW OF ADDITIONAL EVALUATION:

A complete copy of the additional advisory and sanitized copies of a SAF/MI memorandum and a Record of Proceedings regarding the decisions on two previous HPSP cases were mailed to the applicant on 28 Aug 02 for review and comment within 30 days.  As of this date, no response has been received by this office.

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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. After a thorough review of the evidence of record and the applicant’s submission, we are not persuaded that he should be relieved of his HPSP debt. 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 HQ USAF/JAG. Title 10, USC, Section 2005 (a) (4), and paragraph 10 of the applicant’s HPSP contract subject him to recovery action for not serving out the terms of his contract. The applicant did not ask for his disqualifying medical condition, but neither is the Air Force culpable. The applicant was given substantial taxpayer monies for his education and is not prohibited from practicing his profession for personal gain. He should not be unjustly enriched by benefiting from his education for years to come at no cost to him, and the government should not be deprived of the enforcement of its contractual reimbursement in this case. We therefore adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his 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.

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 issue(s) 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 this application in Executive Session on 17 October and 6 November 2002 under the provisions of AFI 36-2603:

			

The following documentary evidence relating to AFBCMR Docket Number 02-00848 was considered:

   Exhibit A.  DD Form 149, dated 27 Feb 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFIT/CIM, dated 28 Mar 02, w/atchs.
   Exhibit D.  Letter, SAF/MRBR, dated 5 Apr 02.
   Exhibit E.  Letter, Applicant, undated; Letter, State Senator, 
               dated 23 Jun 02; and Letter, Representative, dated 
               10 Jul 02, w/atchs.
   Exhibit F.  Letter, HQ USAF/JAG, dated 21 Aug 02.
   Exhibit G.  Letter, AFBCMR, dated 28 Aug 02.