RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-03928
		INDEX CODE:  104.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His debt for the cost of his United States Air Force Academy (USAFA) education be waived.
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APPLICANT CONTENDS THAT:

The debt should be eliminated due to an injustice of not allowing him to resign prior to completing the third year.  He could not submit his resignation request until after he was released from Administrative Hold.  He worked and studied hard throughout the investigation and up to the time a decision was made to allow him to resign.  He does not feel that he had adequate support from his counsel.  He should have been released from the Academy once it was realized the case had been mishandled and he could not be formally charged and convicted.  Had he been given the chance to resign earlier, he would have done so.

In support of his request, the applicant submits a personal statement and additional documents associated with the issues cited in his contentions.  The applicant’s complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

Applicant was appointed a cadet in the United States Air Force on 30 Jun 98 and was attending the United States Air Force Academy (USAFA).

On 7 Mar 01, the applicant received notification that his commander was recommending disenrollment action and discharge for drug use during the period of 1 Jun 00 to 30 Sep 00.  On 24 Jul 01, the applicant elected to resign in lieu of involuntary disenrollment for personal conduct.  On 7 Aug 01, the Superintendent of the USAFA accepted the applicant’s resignation and ordered that he reimburse the government for the cost of his Academy education.  A Recoupment Hearing, completed on 28 Sep 01, found the applicant’s resignation in lieu of disenrollment constituted misconduct and the recoupment debt was calculated correctly.  It was recommended that the applicant reimburse the United States Government $97,169.00, plus interest, for his education at the USAFA.  On 21 Nov 01, the Secretary of the Air Force disapproved the applicant’s request for a recoupment waiver and ordered recoupment.

On 7 Dec 01, the applicant received a general discharge under the provisions of AFI 36-2020 (Secretarial Authority) and had completed a total of three years, four months and two days of active service at the time of his separation.
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AIR FORCE EVALUATION:

HQ USAFA/JA recommends the application be denied.  JA states that the applicant incurred an Active Duty Service Commitment (ADSC) at the start of his second class academic year (junior) year at the Air Force Academy (AFA) in Aug 00.  On 6 Nov 00, the applicant admitted to illegal drug use during a routine physical and again on 7 Nov 00 during an interview with AFOSI.  He was placed on Administrative Hold on 13 Nov 00.  On 7 Mar 01, the applicant received notification that he was being recommended for discharge for drug use during the period Jun to Sep 00.  On 15 Mar 01, the applicant acknowledged receipt of the notification and elected not to waive his right to present his case before a Board of Officers.  On 20 Mar 01, the Superintendent directed a Board of Officers.  On 30 May 01, the applicant waived his right to a Board of Officers.  On 24 Jul 01, the applicant resigned, with acknowledgment that he might be required to reimburse the government for the cost of his AFA education.  Applicant signed a document entitled “Notice of Possible Reimbursement Requirement” on 26 Jul 01.  On 7 Aug 01, the Superintendent of the USAFA accepted applicant’s resignation and ordered he reimburse the government for the cost of his Academy education.  A hearing was completed on 28 Sep 01 in which it was determined that the resignation of the applicant was voluntary, and that the recoupment was appropriate.  On 21 Nov 01, the Secretary of the Air Force disapproved applicant’s request for recoupment waiver and ordered recoupment.

JA states that the applicant acquired a service commitment in Aug 00.  Even if you accept the possibility that his admitted ecstasy use took place prior to that date, he used marijuana in Sep 00, after his service commitment became effective.  Therefore, his administrative discharge and subsequent resignation (all in legally sufficient form) were based on misconduct occurring after such time as he became liable for recoupment.  The recoupment hearing was conducted in accordance with the law.  There are no legal errors in his case that detract from his due process rights.  The applicant benefited from his resignation decision by virtue of an otherwise more unfavorable discharge, and the removal of the possibility that he could be court-martialed for his criminal actions, which may have resulted in imprisonment.  He voluntarily resigned from the USAFA and therefore was not subject to these risks.  He also had the benefit of legal counsel as he made his decision to resign, and opted to follow that advice.  Therefore, he should not receive any relief from his disenrollment and subsequent indebtedness to the United States Government.

The HQ USAFA/JA evaluation is at Exhibit C.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 31 Jan 03  for review and response.  As of this date, no response has been received by this office (Exhibit E).
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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.  The applicant’s complete submission was thoroughly reviewed and his contentions were duly noted.  However, we do not find the applicant’s assertions sufficiently persuasive to override the rationale provided by the Air Force office of primary responsibility (HQ USAFA/JA).  We therefore agree with the opinion and recommendation of HQ USAFA/JA and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  In view of the above and absent evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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 31 July 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2002-03928.

   Exhibit A.  DD Form 149, dated 6 Dec 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ USAFA/JA, dated 14 Jan 03.
   Exhibit D.  Letter, SAF/MRBR, dated 31 Jan 03.