RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04500 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. All documents related to her disenrollment from the Air Force Reserve Officer Training Corps (AFROTC) be removed from her records. 2. All debt related to her disenrollment from AFROTC be set aside. 3. Her Reentry (RE) code be changed to reflect “1,” which denotes reenlistment eligble. 4. She be reinstated as a second lieutenant (2Lt, O-1) in the United States Air Force (USAF) with all back pay and allowances from the date of her commissioning (8 Jul 2011). ________________________________________________________________ APPLICANT CONTENDS THAT: In a 10-page brief with 9 exhibits, the applicant’s counsel provides a chronological sequence of events leading up to her disenrollment from AFROTC. Among the key points made by counsel are the following: 1. The applicant was erroneously disenrolled from AFROTC after her graduation from college and commissioning. She was then discharged from the Air Force after satisfying all commissioning requirements, swearing the oath of office, and being commissioned as a 2Lt. 2. Air Force policy is discriminatory against women. It does not provide women with an equal opportunity for commissioned service that is available to men. The policy imposes barriers to commissioned service that are only applicable prior to commissioning, but not afterwards, and encourages young pregnant college cadets to obtain abortions in order to avoid disenrollment from AFROTC and the recoupment of college costs. The policy is in conflict with her Constitutional right to privacy, it encourages her to make decisions that could be adverse to her health, and unfairly treats prospective female officers differently than active duty female officers. Counsel’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force at Exhibit B. Accordingly, there is no need to recite these facts in this Record of Proceedings. ________________________________________________________________ THE AIR FORCE EVALUATION: USAF/JAA recommends approval. JAA concludes that, as a matter of law, the applicant has held a valid commission as a 2Lt in the Reserve of the Air Force since 8 Jul 2011, and she remains assigned to Headquarters, Air Reserve Personnel Center (HQ ARPC). Therefore, the Board should direct that her records be corrected to reflect this status. The recoupment action taken against her should be terminated, as there is no legal basis currently supporting the action. All collections made under the invalid recoupment action should be repaid. The order discharging her from enlisted status as part of her purported cadet disenrollment and the corresponding DD Form 256AF, Honorable Discharge Certificate, should be removed from her records. Any further administrative matters in her case should be referred to her current organization of assignment, HQ ARPC, for appropriate action. The complete JAA evaluation is at Exhibit B. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: Counsel agrees with the Judge Advocate General’s advisory opinion. The applicant presently has a valid commission in the Reserve of the Air Force, is assigned to HQ ARPC, and the recoupment of AFROTC scholarship money was without any legal basis. The applicant intends to comply with and honorably complete any orders that are issued. On 12 Nov 2010, she was notified of an assignment to Langley AFB (Med/Surgery or Obstetrics) upon completion of the Nurse Transition Program (NTP). To make her whole, counsel additionally requests the following: 1. Immediate enrollment in the NTP course; 2. Orders to Langley AFB (Obstetrics); 3. Constructive service credit for time in service and time in grade from her date of rank so that she remains competitive with her peers for promotion; 4. Removal of all AFROTC disenrollment documents from her official military records; 5. Cancellation of the debt and recoupment action of AFROTC scholarship money; 6. Repayment of any debt payments and interest associated with the recoupment of AFROTC scholarship money, and 7. All back pay and allowances Counsel’s complete response, with attachment, is at Exhibit D. ________________________________________________________________ THE ADDITIONAL AIR FORCE EVALUATION: USAF/AlP concurs with the applicant’s request that all documents related to her disenrollment from AFROTC be removed from her records and cancelling all debt related to her disenrollment. In regard to her RE code being changed to reflect “1,” A1P states that in accordance with (IAW) AFI 36-3207, Separating Commissioned Officers, RE codes are only reflected on enlisted members' separation documents. As a commissioned officer, she should not have a RE code associated with her records. Regarding her request that she be reinstated as a 2Lt in the USAF with all back pay and allowances from her date of commissioning, A1P states that she should be reinstated in an Inactive Reserve Status effective 8 Jul 2011 and assigned to HQ ARPC. The issue of back pay is more complex and ultimately any remedial action should be under the purview of HQ ARPC. However, due to her pregnancy, she would not have been able to attend her required nurse training starting in Aug 2011. The earliest NTP training course she could have attended after childbirth was in Feb 2012; therefore she would have entered active duty in Feb 2012 to attend the training. The complete A1P evaluation is at Exhibit E. Holm Center/CC concurs with the applicant’s request that all documents related to her disenrollment from AFROTC be removed from her records and with cancelling all debt related to her AFROTC disenrollment, contingent upon the determination that her commissioning is deemed valid. A valid commission should eliminate recoupment actions related to her disenrollment from AFROTC. However, as a reserve officer assigned to HQ ARPC, effective 8 Jul 2011, all concerns related to debt recoupment actions should be investigated by HQ ARPC. In regard to her request that she be reinstated as a 2Lt in the USAF with all back pay and allowances from her date of commissioning, CC states that she is not entitled to all back pay and allowances dating back to 8 Jul 2011. Even if her commissioning is deemed valid, she would have been placed in a "no-pay" status in the Individual Ready Reserve (IRR) effective 8 Jul 2011 while she awaited extended Active Duty (EAD) orders. Due to her pregnancy, which ended in Nov 2011, the earliest she could have attended NTP after childbirth was in Feb 2012. Accordingly, the earliest likely date the applicant could have been placed on EAD orders and started receiving pay was early Feb 2012. Moreover, the Board could take this opportunity to determine that the applicant fraudulently obtained an Air Force commission by knowingly withholding medically disqualifying information prior to her commissioning. AFROTC conducted a thorough investigation of her actions leading up to her 8 Jul 2011 commissioning. The evidence revealed that she knew she was required to disclose her change in medical status (pregnancy) to AFROTC, yet she knowingly withheld notice of her pregnancy from 21 Mar 2011, the date she learned she was pregnant, until a few days following her commissioning. Due to her lack of integrity and obtaining a commission by fraud, the Board should consider pursuing an administrative discharge of the applicant. The Board should also consider that she be subject to recoupment of the AFROTC scholarship money paid to her. The complete CC advisory is at Exhibit F. ________________________________________________________________ APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: Both USAF/A1P and Holm Center/CC agree that the Board should grant all of the requested relief. However, counsel must comment on CC’s analysis regarding 10 U.S.C. § 1552. CC has suggested, contrary to the opinions of the Office of the Judge Advocate General, that the Board interpret the statute to give it the authority to morph into a fact-finding and adjudicative body. CC further suggests that the Board deny the applicant the due process that she was entitled to as a matter of law while on active duty and deny the requested relief. Moreover, the suggestion that she lacked integrity is without merit. CC is not in a position to have judged witness credibility or to stand in judgment of her. She has always acted in accordance with her conscience and with integrity. Furthermore, CC could not be more wrong about the law and the Board's statutory authority. The Board has a duty, enforced by the federal courts, to ensure that the Department of the Air Force follows its own regulations. Relief here is just, should be prompt, and is required by law. Counsel’s complete response 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 error or injustice. We note that the applicant is requesting reinstatement with all back pay and allowances, constructive service credit, immediate enrollment in the Nurse Training Program and her previous orders to Langley AFB be honored. However, after a careful review of the facts and circumstances in this case, we do believe Board action is warranted at this time. In this respect, we note that AFROTC lacked the authority to revoke or nullify the applicant’s commission. Therefore, as pointed-out by JAA, any administrative actions after her assignment to HQ ARPC could only have been accomplished by HQ ARPC. In view of this, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that any remedial actions should be accomplished under the purview of HQ ARPC. Accordingly, we find no basis to recommend approval of this portion of her request. 4. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error. The applicant is requesting that her records be corrected to reflect that she incurred no debt associated with her disenrollment from AFROTC, and any documents pertaining to her disenrollment be removed. After a careful review of the evidence, we believe that a measure of relief is warranted. In this respect, we note that the Holm Center, based on the evidence, states that the applicant fraudulently obtained a commission by knowingly withholding medically disqualifying information prior to her commissioning and suggests the Board consider pursing an administrative discharge. However, given that the applicant, by law, could not be disenrolled from AFROTC once she was commissioned, we are in agreement with the Air Force offices of primary responsibility assessment of the case that any remedial actions should be accomplished under the purview of HQ ARPC. In view of the above, we find it in the interest of justice to favorably consider these requests. Therefore, we recommend that her records be corrected to reflect that no debt was established, all collections made under the invalid recoupment actions be repaid, any documents pertaining to her disenrollment be removed and she be assigned to ARPC in the IRR effective 8 Jul 2011. Accordingly, we recommend her record be corrected to the extent indicated below. 5. 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 RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that: a. All documents related to her disenrollment from AFROTC be declared void and removed from her records. b. Reserve Order CC-67 dated 8 Oct 2011, be declared void and removed from her records. c. She was assigned to ARPC in the IRR effective 8 Jul 2011 in the grade of 2Lt. d. At the time of her disenrollment from the AFROTC program, on 13 Sep 2011, competent authority determined that no debt was established and all collections made under the invalid recoupment actions be repaid. ________________________________________________________________ The following members of the Board considered this application in Executive Session on 18 Apr 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the record as recommended. The following documentary evidence was considered in AFBCMR BC-2012- 04500: Exhibit A. DD Form 149, dated 25 Sep 2012, w/atchs. Exhibit B. Letter, HQ USAF/JAA, dated 7 Dec 2012. Exhibit C. Letters, SAF/MRBR, dated 12 Dec 2012. Exhibit D. Letter, Counsel, dated 11 Jan 2013, w/atch Exhibit E. Letter, HQ USAF/A1P, dated 22 Jan 2013. Exhibit F. Letter, Holm Center/CC, dated 22 Jan 2013. Exhibit G. Letter, AFBCMR, dated 4 Mar 2013. Exhibit H. Letter, Counsel, dated 11 Mar 2013.