RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04064 COUNSEL: HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His rank be changed from second lieutenant (2Lt) to first lieutenant (1Lt) and he be awarded all associated back pay and allowances. _________________________________________________________________ APPLICANT CONTENDS THAT: 1. On 13 Apr 10, he was disenrolled from the Uniformed Services University of the Health Sciences (USUHS). His length of service was approximately two years from his date of rank (DOR) of 30 Jun 08 and he continued to work within the Uniformed Service University Brigade. 2. Based on prior BCMR rulings, he should have been eligible for the Special Selection Board (SSB) on 6 Sep 10, at which time his rank would have changed from 2Lt to 1Lt, respectively. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 30 Jun 08, the applicant entered the USUHS in the grade of 2Lt. On 13 Apr 10, he was disenrolled from the program for academic reasons. As a result of his disenrollment, the applicant’s seven year contractual obligation changed to two years (minimum service obligation/MSO) for his USUHS sponsorship from 27 Jun 08 to 13 Apr 10 (effective date of disenrollment). AFPC/DPAME began the process to transfer the applicant to the Medical Service Corps (MSC), Biomedical Sciences Corps (BSC) and the Line of the Air Force (LAF). However, it was determined he would not be able to serve on active duty in another capacity to fulfill his MSO. A command directed separation action was initiated. On 22 Feb 12, the applicant was honorably discharged. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is attached at Exhibit C and F. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPAME recommends denial of the applicant’s request for promotion to 1Lt. In addition, DPAME recommends the Secretary of the Air Force Personnel Council (SAFPC) direct discharge and recoupment of the remaining educational active duty service commitment (ADSC). The applicant is fulfilling active duty service obligation from the date of disenrollment. However, he was not accepted in another Air Force career to fulfill the educational ADSC incurred through the USUHS sponsorship. Accession as a regular officer is the main reason the applicant is still on active duty. DPAME states the applicant is correct, there were prior BCMR rulings adjusting the DOR for officers disenrolled from the USUHS. However, those officers were accepted into another active duty career field to serve their educational ADSC. Unfortunately, this is not the case for the applicant. The applicant should not be afforded the opportunity to compete for promotion against an officer in another career field who will remain on active duty as a MSC officer. The complete DPAME evaluation, with attachment, is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states the AFPC/DPAME advisory concluded that relief should not be granted because he was not accepted into another career field to serve the additional ADSC in another capacity. However, this conclusion is unsupportable, as there is no statue or regulation which allows for such a distinction. The applicant states upon disenrollment he was entitled to promotion consideration. In further support of his appeal the applicant provides a personal statement, copies of AFBCMR ROPs, emails, and various other documents in support of his request. The applicant’s complete response, with attachments, is at Exhibit E. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: AF/JAA makes no recommendation. JAA states officer students at USUHS are not included on the Active Duty List (ADL) because they are excluded from all statutory provisions in Chapter 36 of Title 10. As such, USUHS service is not creditable under 10 U.S.C. Section 619(a) for time-in-grade consideration upon disenrollment. However, if a disenrolled officer receives an original appointment to another competitive category, USUHS service is creditable as prior-commissioned service for entry- grade consideration. JAA notes officers entering medical training at USUHS are accessed under the program’s statutory authorization in Chapter 104 of Title 10. If a student is disenrolled prior to graduation, his or her personnel status does not change when removed from the program. Rather, disenrolled students are considered for new positions in other competitive categories or processed for administrative separation if no suitable positions are available. During this assessment and transition, the personnel status of disenrolled officers does not change and they continue to service according to the statutory framework. As such, the service of disenrolled officers’ remains statutorily excluded from Chapter 36 of Title 10 provisions until they are reappointed or administratively separated from active duty. USUHS does not assign disenrolled officers to the ADL principally because USUHS does not maintain manpower positions or billets into which disenrolled officers may be assigned. By law, USUHS students are not accounted for on the ADL and transitioning a disenrolled officer to a billet on the ADL would require a manpower authorization and position to which the officer could be assigned. Without such authorizations, USUHS cannot transition disenrolled officers to the ADL. JAA states requiring disenrolled officers to continue to work in an administrative capacity for a limited period while their case is resolved is appropriate; however, it is important to recognize that the officers are being processed out of the organization not serving as members of the USUHS staff. Disenrolled officers should not be retained for lengthy terms after they are disenrolled and appointing them to an interim status is not necessary so long as their transition out of the program is executed quickly and managed effectively. The complete JAA evaluation is at Exhibit F. _________________________________________________________________ APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: By letter, dated 20 Mar 13, the applicant through his attorney states he received a de facto appointment to the MSC as evidenced by his OPRs for the period in question. Therefore, equity suggests that credit for promotion purposes should be given. In further support of his appeal, the applicant provided a one- page legal brief. The applicant’s complete submission is at Exhibit H. _________________________________________________________________ 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 an error. The applicant contends that he should be eligible for promotion consideration by a Special Selection Board based on precedent that has been established in similar cases decided by this Board in BC-1996- 01097 and the Army Board for Correction of Military Records (ABCMR) in AR20090011111 and AR20100025905. We disagree. In this respect, we have reviewed the cases cited by the applicant and are not persuaded they support his assertion that he has been the victim of an error or an injustice. In the cited cases, unlike the applicant, the USUHS disenrollees were transferred to other competitive categories to fulfill their educational Active Duty Service Commitments. Moreover, in BC- 1996-01097, the decision of the Board was founded upon the erroneous advice provided by AFPC/JA, who opined, based on their incorrect interpretation of the governing statute, that although USUHS student service could not be credited for basic pay calculations under 10 USC § 2126, it could be credited for date of rank and promotion eligibility purposes, since it was not specifically precluded by statute. We also note the decisions reached in the two cited ABCMR cases are not founded upon additional distinctive and independent findings, but rather a consequence of this Board’s decision in BC-1996-01097 and the underlying inaccurate statutory interpretation. The applicant’s contentions regarding his continued service until his separation are noted; however, in accordance with the governing statutes, students participating in the USUHS program serve on active duty, but are not on the active duty list (ADL); are excluded from earning credit for promotion, separation, and retirement and; service performed while a member of the program is not to be counted in determining eligibility for retirement other than by reason of physical disability incurred while on active duty as a member of the program or in computing years of service credible under 37 U.S.C § 205. This is further sustained in the governing DoD Financial Management Regulation that precludes the period a student is at USUHS from being credible towards pay. Although the applicant was eliminated from medical school on 14 Apr 10, he remained assigned to USUHS on active duty in a student status until such time as he was either discharged or transferred to another competitive category. During this period he performed administrative duties as an assistant to the Brigade Command pending his command-directed separation and appeal of the separation action. However, he was not transferred to another competitive category and never placed on the ADL, as it was determined his accession was not appropriate, since he would not be able to serve on active duty in another capacity to fulfill his Military Service Obligation (MSO). The applicant has provided no evidence to indicate the determination that he could not fulfill his MSO in another active duty career field was in error. As such, we find no evidence of an error in this case. 4. We have also considered whether matters of equity require the record be disturbed. In this regard, we find that while disenrolled USUHS students should not be retained awaiting reassignment or separation for an extended time and concede the applicant was retained for almost two years following his disenrollment, we do not find this shocks our sense of justice, as this service was creditable towards fulfillment of the cost associated with his USUHS-sponsored education, i.e., $71,475.00; thereby, reducing the amount to be recouped to $42,885.28 and provided him an opportunity to appeal the separation action. Therefore, in view of the above and in the absence of substantial evidence to the contrary, we find the applicant has not met his burden of establishing the existence of an error or an injustice in his record to warrant favorable consideration of the requested relief. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2011-04064 in Executive Session on 19 Mar and 26 Mar 13, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 14 Oct 11, w/atchs. Exhibit B. Applicant’s Master Personnel Record. Exhibit C. Letter, AFPC/DPAME, dated 14 Nov 11, w/atch. Exhibit D. Letter, SAF/MRBR, dated 2 Dec 11. Exhibit E. Letter, Applicant, dated 13 Dec 11, w/atchs. Exhibit F. Letter, AF/JAA, dated 5 Feb 13. Exhibit G. Letter, SAF/MRBC, dated 14 Feb 13. Exhibit H. Letter, Counsel, dated 20 Mar 13.