RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03641 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: 1. He be retroactively granted a sponsorship under the Armed Forces Health Professions Scholarship Program (AFHPSP). 2. He be reimbursed for expenses incurred in excess of $80,000 during his first year of medical school. 3. His original enlistment contract be changed from “Line Officer” to “Health Professions.” _________________________________________________________________ APPLICANT CONTENDS THAT: The applicant through counsel submits a four-page legal brief with attachments with the following major contentions: In 2009, he completed Air Force Reserve Officer Training Corps (AFROTC) field training and signed a contract under the belief he was guaranteed a scholarship for medical school under the AFHPSP. His commanding officer, including the ROTC staff believed he was “guaranteed” the scholarship under the AFHPSP. Subsequently, he was denied the scholarship and granted an educational delay for medical school; however, he was responsible for funding any educational costs in excess of $300,000, and then required to complete an active duty service commitment (ADSC) with the Air Force. Due to procedural errors to no fault of his own, he faces a substantial debt and an ADSC to the Air Force due to an inequitable denial of his HPSP scholarship. A constructive contract exists between him and the Air Force for a scholarship under the AFHPSP. He still owes an obligation to the Air Force. He will have to request an educational delay each year, as well as expend over $80,000 a year for medical school, only for the Air Force to reap the benefit of his medical education. He is the President of the Association of Military Osteopathic Physicians and Surgeons (AMOPS) at his medical school. The organization consists of students that were awarded the very scholarship he has applied for, in most cases, with little to no military experience and inferior academic credentials. He was not aware at the time that signing the contract (which actually classified him as a line officer) would prevent him from obtaining the scholarship. There is a specific clause in his contract that states if accepted into medical school before commissioning, he would be guaranteed a Health Professions Scholarship. He thought he was pre-health and after seeing this specific clause, he signed the contract without hesitation. It was not until he was accepted into medical school that he was informed he was not classified as pre-health. During the process, he found out that instead of commissioning into the HPSP program, he was being placed on educational delay. When he asked the cadre about this discrepancy, he was told he was not properly classified as pre-health and instead was going to be placed on an educational delay. This was the first time he heard he had been misclassified. He was distraught over the news and asked his cadre what his options were. He was told he would need to take out loans for his first year and then apply for a three-year scholarship the next year. His detachment staff thought he was pre-health and was entitled to the scholarship. They submitted letters supporting his contentions. This whole issue revolves around him not having the proper classification in the eyes of the Air Force The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 7 Aug 11, the applicant was appointed a second lieutenant in the United States Air Force Reserves (USAFR). The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are contained at Exhibits C and D. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPANE recommends denial. DPANE states that the applicant met the 3 Apr 12, HPSP scholarship selection board for a three- year HPSP scholarship and was non-selected. Upon his own free will, he decided to apply for an Air Force Institute of Technology (AFIT) Educational Delay from entering the Line of the Air Force (LAF) to attend medical school at his own expense and was granted approval. The complete DPANE evaluation, with attachment, is at Exhibit C. AFPC/JA recommends denial. JA states that the claim by the applicant that he was misled into believing the AFROTC contract guaranteed him a scholarship for medical school – or, alternatively, that a constructive contract to that effect existed – is simply not supported by the evidence of record. The statement by his AFROTC commander, and the (incorrect) AFROTC documents signed by that commander supporting the applicant’s position, do nothing more than evidence a mistaken belief by both parties that is rebutted by the denial of Pre- Health Professions Program (Pre-HPP) status and the terms of the AFROTC contract. An implied or “constructive” contract does not exist simply because a party believes it, or wants it to be true, where the facts of record clearly provide otherwise. The applicant simply had no reasonable basis to believe he was entitled to an HPSP scholarship. As noted by AFPC/DPANE, upon graduation from college, the applicant applied for an educational delay to attend medical school at his own expense – an option not available to a Pre-HPP designee in accordance with (IAW) AFROTCI 36-2011, Cadet Operations. This was his decision that was never accompanied by any promise, implied or expressed by the Air Force to pay for or reimburse the cost. The applicant applied for an HPSP scholarship and it was denied. JA states that the applicant has presented no evidence of error; the entire sequence of events does not evidence the Air Force ever guaranteed the applicant that it would fund his medical education. Further, JA states that the applicant has not established an injustice. In the face of the ROTC contract, his denial of Pre- HPP status, his request for an educational delay to go ahead and pursue medical school anyway (at his own expense), and his receiving denial to a subsequent application for a scholarship, does not logically follow that the government should owe him the cost of a medical education that (1) the Air Force did not require him to pursue, and (2) he elected to pay for himself with no reasonable expectation of reimbursement. There is no injustice for either the applicant’s mistaken beliefs or his decision to pursue medical school despite clear evidence that the government was not going to fund or reimburse that education. The complete JA evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s counsel states that the applicant had a reasonable belief he had fulfilled all of his obligations to be selected for the HPSP. There was absolutely no failure on the part of the applicant. The failure was in his chain of command, which has been acknowledged on every level, including a statement received from a senior noncommissioned officer (SNCO) who had been with the command for almost 10 years. The applicant’s belief was based on the direction of his chain of command. The same chain of command that led the applicant to believe he was in the HPSP and subsequently “guaranteed” him the scholarship, only to be denied given the grave administration errors and mishandling of his application. Counsel asserts that the only reason the applicant subsequently applied for the educational delay and the three-year program, was because his chain of command directed him to do so in order to use that course of action as an avenue to correct the administrative errors by the chain of command. The JA advisory opinion states that “applicant simply had no reasonable basis to believe he was entitled to an HPSP scholarship.” However, the applicant had a firm basis to believe he was contracted under the HPSP given the Air Force via the commanding officer of the AFROTC program, believed there was a binding contract, thus signing a letter stating the applicant was “guaranteed” a HPSP scholarship. There is absolutely no question here that there was a meeting of the minds between the applicant and the Air Force. Counsel states that the JA advisory opinion stated “nor do we believe applicant has established an injustice.” The misrepresentation by the AFROTC has and will continue to cost the applicant thousands of dollars to pursue an education that he was guaranteed by the Air Force. Additionally, the Air Force will require him to complete his ADSC regardless of his level of education and the fact that he paid for it; will no doubt benefit the Air Force. Lastly, counsel asserts that there is a clear injustice and an inequitable result that can easily be corrected and should be corrected given the overwhelming evidence that both the applicant and his chain of command believed he was entitled to the HPSP scholarship. The applicant should not suffer as a result of an error not his own. He has already been subject to a heavy financial burden, which started with the required $2,000 deposit and continuing tuition and fees in excess of hundreds of thousands of dollars. These expenses were and continue to be unanticipated costs due to command failures throughout the process. In further support of his appeal, the applicant provides a two- page legal brief and various other documents associated with his request. The applicant’s complete submission, with attachments, is at Exhibit F. _________________________________________________________________ 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 or injustice. After thoroughly reviewing the evidence of record and the applicant’s complete submission, we find no evidence which would persuade us to disturb the records. While we note the letters of support from the commander, executive officer and the retired senior NCO, the applicant has not provided substantial evidence that would warrant an exception to policy. We believe to grant the applicant’s request without substantial evidence would be unfair to others similarly situated and establish a basis for circumventing the procedures in place. As such, we do not find the applicant’s assertions or the documentation presented sufficiently persuasive to override the rationale provided by the Air Force offices of primary responsibility (OPR). Therefore, we agree with the opinions and recommendations of the Air Force OPRs and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of establishing that he has suffered either an error or an injustice. Accordingly, we find no basis to recommend granting the relief sought in this application. 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 issues involved. Therefore, the request for a hearing is not favorably considered. _________________________________________________________________ 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 Docket Number BC-2012-03641 in Executive Session on 4 Jun 13, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 10 Aug 12, w/atchs. Exhibit B. Applicant’s Master Personnel Record. Exhibit C. Letter, AFPC/DPANE, dated 13 Sep 12. Exhibit D. Letter, AFPC/JA, dated 5 Oct 12. Exhibit E. Letter, SAF/MRBR, dated 15 Oct 12. Exhibit F. Letter, Applicant, dated 9 Nov 12, w/atchs.