RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-02457
		INDEX CODE:  113.00, 128.00

		COUNSEL:  NONE

		HEARING DESIRED: NO

MANDATORY CASE COMPLETION DATE:  6 FEB 2009

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APPLICANT REQUESTS THAT:

His active duty service commitment be waived and he be allowed to monetarily reimburse the government for the cost of his US Air Force Academy (USAFA) education.

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APPLICANT CONTENDS THAT:

He was treated unfairly and unprofessionally throughout the process of being dis-enrolled from the USAFA, denied a slot into Air Force Reserve Officer Training Corps (AFROTC), (which he understood to be guaranteed upon his dismissal), and in trying to find out answers and options to what steps to take in continuing his life.  

Applicant made some mistakes at the USAFA which led to his dismissal; has worked hard since leaving the USAFA and is now ready to move on with his life.  He has been accepted to the University of Texas for Fall 2007 and plans on attending to finish his education.  Applicant has made many positive changes in his life, has a wonderful job, lives close to his family, and wishes to pay back the government as opposed to serving on active duty.

In support of his appeal, applicant submitted a personal statement; extracts from his USAFA record, and a copy of his letter to his member of congress.

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

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STATEMENT OF FACTS:

Applicant became a cadet at the USAF Academy on 26 June 2003.  On 26 October 2006, a Cadet Sanctions Recommendation Panel (CRSP) was convened to consider six allegations that he had violated the Cadet Wing Honor Code.  The allegations included six allegations of lying.  Applicant admitted to the violations of the Honor Code, and therefore, the CSRP was convened as the only recommendation to be made by the members of the CSRP concerned the sanction for the applicant’s Honor Code violations.  The sanction recommended by the CSRP was disenrollment from the Academy.  The Superintendent, the disenrollment authority, agreed with the CSRP and disenrolled the applicant, ordered him to reimburse the government for the costs of his Academy education by serving three years active duty in an enlisted capacity, but also granted him an educational delay to seek a commissioning source other than the Academy.  Prior to disenrolling from the Academy, the applicant signed an "Educational Delay Statement of Understanding."  Essentially, the statement of understanding acknowledges that his failure to secure approval or his failure to complete the application actions in the time allowed (as set forth in the document) would result in his immediate call to active duty consistent with his obligation to reimburse the government for the costs of his Academy education.  Because the applicant was in his senior year at the Academy when he was disenrolled, he owed an active duty service commitment (ADSC) of three years enlisted active duty, to the Air Force.  As noted above, the Superintendent determined that the applicant should reimburse the government for the costs of the Academy education by serving in an enlisted active duty status for three years, subject to the educational delay.  The applicant accepted the terms of the educational delay, acknowledged that it was his responsibility to secure enrollment and a contract in an AFROTC-sanctioned program by the agreed upon date, but was subsequently unable to secure enrollment and a contract in an AFROTC-sanctioned program by 15 July 2007, the agreed upon date.  

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AIR FORCE EVALUATION:

HQ USAFA/JA reviewed this application and recommended denial, stating, in part, Title 10 USC Section 2005 (a) states that the Secretary concerned may require, as a condition to the Secretary providing advance education assistance to any person, that such person enter into a written agreement with the Secretary concerned under the terms of which such person 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…

In Department of Defense Directive (DODD) 1332.23, paragraph 4, it is DoD policy that:

		4.1 Active duty service is the primary means of reimbursement for education.

		4.2 Cadets and midshipmen disenrolling or those disenrolled from a Service academy normally shall be called to active duty in enlisted status…

A paralegal in USAFA/JACD, responded to the applicant’s allegation of unprofessional conduct during his disenrollment.  In short, all of the information she provided to the applicant and/or his mother was accurate and was provided in a professional manner.

The Superintendent, as the disenrollment authority, makes the final decision to disenroll the cadet and decides whether the cadet should be called to serve in an enlisted capacity to reimburse the government or if the cadet should reimburse the government monetarily.  In the event the cadet appeals the Superintendent’s decision on the collateral consequences of his disenrollment, he may appeal to the Secretary of the Air Force, the final authority concerning the collateral consequences.  The decision of the Superintendent to require the cadet to monetarily reimburse the government should be based upon the Superintendent’s decision that the disenrollment resulted from misconduct, as set forth in Title 10 USC Section 2005 (a) (3).

In the case, the Superintendent decided that the applicant would be called to active duty in an enlisted capacity to reimburse the government, but graciously gave the applicant the additional opportunity to delay his active duty service in order for him to obtain his commission through an alternative commissioning program.  The applicant agreed to the terms of the Superintendent’s offer.  The applicant was provided every opportunity to successfully obtain entrance into the alternative commissioning program.  Because the applicant failed to secure a position in such a program, he should not be relieved of his obligations under the law and pursuant to his agreement with the Superintendent.

HQ USAFA/JA’s complete evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In the applicant’s response to the evaluation, he noted his understanding that the primary means for reimbursement is active duty service, but it leaves room for him to believe that there is some sort of option as to the terms of reimbursement.  His goal is not to escape active duty service at all; however, he was told that requesting monetary reimbursement as opposed to active duty service was possible through the AFBCMR process.

Further, he noted, the statement from the paralegal is completely false, as she used that exact term to his face when telling him of his outlook for entrance into ROTC.  

Applicant’s complete response is at 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.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We found no evidence to sufficiently convince us that the Superintendent abused his authority when he decided the applicant should reimburse the government for the cost of the Academy education by serving in an enlisted active duty status for three years.  Applicant understood and agreed to serve on active duty, subject to the educational delay, to secure enrollment and a contract in an AFROTC-sanctioned program, by the agreed upon date of 15 July 2007.  While we do not condone the misconduct which subsequently led to the applicant’s disenrollment, we believe he fully intended to finish his Academy education and serve in the Air Force as a commissioned officer.  Consequently, we also believe that had the applicant not felt he was in a good position to be enrolled in an AFROTC program, he would have appealed the Superintendent’s decision to reimburse the government by serving in an enlisted capacity for three years.  We cannot conclusively determine whether appealing the Superintendent’s decision would have resulted in the applicant’s desired alterative; nonetheless, based on the evidence before us, we believe it would be proper and fitting to allow the applicant to monetarily reimburse the government for his advanced education at the USAFA, rather than requiring him to serve on active duty for three years.  Such action would not only be in the best interest of the Air Force, but the applicant as well.  We note the applicant has been accepted to a university and has started preparing for life as a civilian.  However, we do not believe the evidence supports a decision that the applicant should be treated differently than other cadets who are disenrolled after their third year at the Academy and who do not perform the requisite active duty service in enlisted status.  Rather, we believe the appropriate course of action in this case would be to allow him to reimburse the government monetarily, rather than serving in the Air Force in an enlisted capacity for three years.  Therefore, we recommend the applicant’s record be corrected to the extent indicated below.  

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 9 February 2007, competent authority determined that he be required to monetarily reimburse the government for the total cost of his advanced education at the United States Air Force Academy in  accordance with Title 10, United States Code, Section 2005 (a) (3); rather than granted an educational delay, and called to active duty in an enlisted capacity for a period of three (3) years.

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The following members of the Board considered AFBCMR Docket Number BC-2007-02457 in Executive Session on 10 October 2007, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 30 Jul 07, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, HQ USAFA/JA, dated 23 Aug 07, w/atchs.
     Exhibit D.  Letter, SAF/MRBR, dated 31 Aug 07.
     Exhibit E.  Letter, Applicant, dated 21 Sep 07, w/atchs.