RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01564 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: 1. His Separation Program Designator (SPD) code be changed from “JHF,” “Failure to Meet Course Standards” due to the fact he voluntarily requested elimination from Undergraduate Pilot Training (UPT); Drop on Request (DOR). 2. The debt established, approximately $112,000, for his United States Air Force Academy (USAFA) education be cancelled. _________________________________________________________________ APPLICANT CONTENDS THAT: 1. Drop on Request is completely separate from any of the reasons used to determine failure to meet course standards. AETCI36-2205V4, paragraph 3.4.3, lists nine reasons that student pilots will be eliminated from UPT. 2. The Air Force Form 63 “Active Duty Service Commitment (ADSC), Acknowledgement Statement” pertaining to him states in Part 2, paragraph H, line 2, “That if I am voluntarily retired or separated, or if I am involuntarily separated because of misconduct, prior to completing the ADSC, I understand and agree that the Secretary of the Air Force or his designated representative may direct reimbursement.” He has provided supporting letters from his former squadron and flight commanders confirming that none of these circumstances are true. He desires to continue serving, but that chance has been taken away by influences beyond his control. In support of his request, the applicant provides his personal statement, DD Form 214 Certificate of Release or Discharge From Active Duty, AF IMT 100, Request and Authorization for Separation, AF Form 63, copies of documents from his personnel records, an extract of AETCI36-2205V4, letters of support, correspondence from the Defense Finance and Accounting Service (DFAS), and copy of a letter written to his Senator on the issue at hand. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: According to available records, the applicant entered USAFA in the fall of 2005 and graduated in May 2009. He subsequently entered UPT on 19 February 2010 and self eliminated (DOR) on 10 June 2010. On 22 September 2010, the applicant met an Initial Skills Training (IST) Reclassification panel pursuant to AFPCI 36-112. The panel recommended the applicant be discharged from the Air Force, and that he reimburse the Government the pro rata share of his USAFA education costs for the unserved portion of his obligated active duty. The recommendation was approved by the discharge authority AFPC/CC. The applicant was separated from the Air Force on 20 December 2010 with 1 year, 6 months, and 24 days of active service. He was given an honorable characterization of service with a separation code of “JHF” and narrative reason of “Failure to Complete a Course of Instruction.” _________________________________________________________________ AIR FORCE EVALUATION: In an undated advisory opinion, AFPC/DPSIP opines that based on their review, they found no problems with the applicant’s consideration by the Initial Skills Training (IST) panel and that the decision to recoup a pro-rated educational assistance is appropriate. There were a number of actions that led to the determination to discharge the applicant and recoup a portion of his educational assistance. He entered UPT on 19 Feb 2010 and chose to self eliminate on 10 June 2010. On 4 August 2010, the applicant and his commander completed the Officer IST Elimination Package, which included the Officer Training Eliminee Recoupment Statement where he specifically acknowledged that he may be “subject to recoupment of a portion of education assistance.” His elimination package was presented to the IST Reclassification Panel on 22 September 2010. There were no valid Air Force requirements that the applicant was qualified to be reclassified to, therefore, the panel recommended discharge and recoupment of educational assistance. The complete DPSIP evaluation is at Exhibit C. AFPC/DPSOS recommends denial of a change in the applicant’s SPD code and narrative reason. The applicant incorrectly states that his SPD code states he was separated due to a failure to meet standards; however, the applicant was separated with the SPD code “JHF” and narrative reason of “Failure to Complete a Course of Instruction.” The applicant’s SPD code was properly established based upon his elimination from training. The complete DPSOS evaluation with attachment is at Exhibit D. AFPC/JA recommends denial of the applicant’s requests. At the time the applicant entered USAFA, he executed a Record of Acceptance, Obligation and Oath of Allegiance (USAFA Form O-205), which contained the following provision: As a condition of receiving advanced education as defined in Title 10, USC, Section 2005, I agree: c. that if I voluntarily or because of misconduct fail to complete the period of active duty, [specified in the agreement] or fail to fulfill any term or condition prescribed by the Secretary of the Air Force, I will, as specified by the Air Force, reimburse the United States government for the percentage of my education costs equal to the period of active duty that I fail to complete… This language comes virtually verbatim from Section 2005, Title 10, United States Code that was in effect on the date of signature. Although the recoupment provisions of 10 USC 2005 were superseded/repealed by the 2006 NDAA, they remain in effect pursuant to a “savings clause,” for monies obligated to be paid by the government prior to 1 April 2006. Public law 109-163, Section 687(f), 119 Stat. at 3336, recorded at 10 USC 510 note. A memo from AETC 71OG/CD dated 28 June 2010 states that while air sickness was a factor in the applicant’s decision to DOR, the deciding factor in the applicant’s decision was his lack of will and desire to complete the training and live the “pilot lifestyle” for ten years. AFPC/JA disagrees with the applicant’s argument the Form 63 did not provide a basis for recoupment because the basis for applicant’s elimination from training was not “voluntary” or because of misconduct. It is their opinion that officers like the applicant, who received financial assistance from the Air Force Academy by virtue of a contract signed before 1 April 2006, are subject to recoupment as a training eliminee if the IST failure is determined to be within the member’s control, absent a Secretarial determination that recoupment would be contrary to a personnel policy or management objective, against equity and good conscience, or contrary to the best interest of the United States. AFPC/JA provides further discussion of why they believe recoupment is authorized in the applicant’s case to include comparison to AFROTC contracts, how the DoD defined the term “voluntary” in an analogous statute in Favreau v. United States to mean not only where separation is granted at the specific request of the service member, but also, where a service- initiated separation results from actions or conduct within a service member’s control. AFPC/JA concludes that the ultimate decision whether to recoup belongs to the Secretary of the Air Force and in this case his designee, AFPC/CC, properly determined that recoupment was appropriate in this case, and that no policy or equity concern existed that would provide otherwise. The complete AFPC/JA advisory is at Exhibit E. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force advisories were mailed to the applicant on 21 November 2011. To date a response has not been received. _________________________________________________________________ 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 careful consideration of the applicant’s request and the available evidence of record, we find insufficient evidence of error or injustice to warrant corrective action. The facts and opinions stated in the advisory opinions appear to be based on the evidence of record and have not been adequately rebutted by the applicant. Absent persuasive evidence the applicant’s separation program designator code and subsequent debt was improperly established, we find no basis to recommend granting the relief sought in this application. _________________________________________________________________ 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. _______________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-01564 in Executive Session on 4 Jan 11, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 8 April 2011, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSIP, not dated. Exhibit D. Letter, AFPC/DPSOS, dated 17 November 2011. Exhibit E. Letter, AFPC/JA, dated 18 November 2011. Exhibit F. Letter, SAF/MRBR, dated 21 November 2011.