RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-04130 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His DD Form 214, Certificate of Release or Discharge from Active Duty, Block 26, Separation Program Designation (SPD) code, be corrected to reflect a SPD code that does not require recoupment of his bonus. APPLICANT CONTENDS THAT: When Airmen are involuntarily separated under the Air Force’s Force Management program they normally receive some sort of separation pay and are not subject to bonus recoupment. While his SPD code of HHJ mandated no separation pay and recoupment of his “unearned” portion of a bonus. This seems like an unnecessary and unsubstantiated punitive action. The reason for his involuntary separation was his inability to pass the Chinese Defense Language Proficiency Test (DLPT), a test widely criticized for its flaws and in a constant state of revision. The consecutive test failures that resulted in his separation began just two weeks after being the victim of a Traumatic Brain Injury (TBI) that the Department of Veterans Affairs (DVA) has since granted a service-connected disability rating for tension headaches and tinnitus potentially caused by said injury. It appeared as though his separation was framed to portray him as an undesirable Airman. When in fact the Air Force required language training to assist him in passing the DLPT; however, his unit denied said training. He believes his Commander chose the path of least resistance in pushing him out of the Air Force at a time when a reduction of end strength was being instituted. Any “issue” he may have had was not derogatory and should have been taken into consideration when assigning his SPD code. Other involuntarily separated airmen were not subject to recoupment and in fact received severance pay. He requests the Board consider these mitigating factors to include the egregious nature of how he was force out of the Air Force after 10+ years of honorable service and adjust his SPD code so that at the very least he need not continue to be financially crippled during this transition. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 20 Feb 03. On 30 Jul 12, the applicant entered Remedial Language Training Program (RLTP) for failing to meet Air Force standards for the Defense Language Proficiency Test (DLPT). On 5 Nov 13, the Based Education and Training Manager confirmed the applicant had not achieved the required 2/2 DLPT score despite receiving two significant language training events while in remedial training. On 7 Jan 14, the applicant was notified by his commander he was recommending him for discharge based on Unsatisfactory Performance: Failure to Progress in Military Training Required to be Qualified for Service with the Air Force or for Performance of Primary Duties in accordance with AFI 36-3208, Administrative Separation of Airman, Chapter 5, paragraph 5.26.3. On the same day, the applicant signed a Statement of Understanding Regarding Recoupment of Education Assistance, Special Pay, or Bonuses. In the statement the applicant agreed to the following: “I understand that the Air Force may be entitled to recoup a portion of education assistance, special pay, or bonus money which I received, if any, if I separate before completing the period of active duty I agreed to serve. I understand this recoupment applies regardless of whether I voluntarily separate or I am involuntarily discharged. I further understand: (1) the recoupment in all cases is an amount that bears the same ratio to the total amount or cost provided to me, as the unserved portion of active duty bears to the total period of active duty I agree to serve; and (2) that if I dispute that I am indebted for educational assistance, a board or other authority will make findings and recommendations concerning the validity of the indebtedness.” On 21 Jan 14, the applicant offered a conditional waiver of his rights associated with an administrative discharge board hearing. His waiver was contingent on receipt of no less than an Honorable discharge. He also submitted a statement on his own behalf for consideration. On 22 Jan 14, the Staff Judge Advocate reviewed the case and found it legally sufficient to support the applicant’s discharge. On 23 Jan 14, the discharge authority reviewed the applicant’s case and directed he be discharged with an Honorable characterization of service. On 5 Feb 14, the applicant was furnished an Honorable discharge, and was credited with 10 years, 11 months, and 17 days of active service. The applicant’s DD Form 214, Block 26, reflects a SPD code of “HHJ” -- “Unsatisfactory Performance: Involuntary discharge directed in lieu of further proceedings or convening of a board (board waived) when a member fails to perform duties and assignment satisfactorily.” The remaining relevant facts pertaining to this application are contained in the memorandums prepared by the Air Force office of primary responsibility (OPR) and AFBCM Medical Advisor which are attached at Exhibits C and D. AIR FORCE EVALUATION: AFPC/DPSOR-SEP recommends denial indicating there is no evidence of an error or an injustice. Based on the documentation on file in the master personnel records, the discharge to include the SPD code was consistent with the procedural and substantive requirements of the discharge instruction and within the discretion of the discharge authority. The applicant’s Commander indicated he thoroughly reviewed the facts in this case and since entering the RLTP on 30 Jul 12, the applicant attended two Significant Language Training Events (SLTE). Despite the large squadron investment, he failed to reach minimum Air Force standards. The commander concluded that the results were primarily due to his minimal effort. Since the applicant was unwilling or unable to meet the minimum standards necessary to perform his assigned duties, discharge action was initiated. The applicant failed to meet the minimum qualifications to perform his assigned duties in a career field eligible for special pay and bonuses, so recoupment was in order. Therefore, the SPD code is correct as indicated on the applicant’s DD Form 214. The commander initiated administrative discharge action based on an existing Air Force Instruction. Hence, ongoing administrative discharge processing actions and any court- martial actions take precedence over any Force Management related initiative and will continue to be processed to their final conclusion. Therefore, the applicant’s contention that he should have received the same consideration as those who were separated under an existing Force Management program is an incorrect assessment. Furthermore, the base discharge authority had the authority to approve the administrative discharge on the applicant in lieu of any ongoing Force Management initiatives. A complete copy of the AFPC/DPSOR-SEP evaluation is at Exhibit C. The AFBCMR Medical Advisor recommends denial indicating there is insufficient evidence to recommend granting the applicant relief, if based solely upon a medical condition. They noted the applicant’s test failures occurred fully one year after his initial injury; yet concedes that poor sleep hygiene, chronic headaches, albeit reportedly improving in 2012, and ringing in the ears could conceivable interfere with an individual’s level of concentration at a given time. However, there is no evidence presented during his period of service to indicate he or his health provider’s considered these symptoms or other symptoms, during calendar year 2012 or if existent during calendar year 2013, was an impediment to him passing his language proficiency tests. Absent objective evidence of an actual cognitive deficit, as determined through neuropsychological testing, they opines the applicant has not met the burden of proof that his mild TBI resulted in his testing failures. A complete copy of the AFBCMR Medical Advisor evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force and BCMR Medical Consultant’s evaluation was forwarded to the applicant on 26 Jun 15 and 17 Sep 15, respectively, for review and comment within 30 days (Exhibit E). As of this date, no response has been received by this office. 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. We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force office of primary responsibility (OPR) and the AFBCMR Medical Advisor and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting 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-2014-04130 in Executive Session on 20 Oct 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining AFBCMR Docket Number BC-2014-04130 was considered: Exhibit A. DD Form 149, dated 1 Oct 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSOR-SEP, dated 3 Apr 15. Exhibit D. Memorandum, AFBCMR Medical Advisor, dated 15 Sep 15 Exhibit E. Letters, SAF/MRBR, dated 26 Jun 15 and 17 Sep 15.