RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-02679

XXXXXXXXXXX				COUNSEL:  XXXXXXXXXXX

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

The recoupment of his $87,613.00 tuition debt for the Air Force Reserve Officer Training Corps (AFROTC) be waived.

APPLICANT CONTENDS THAT:

Counsel contends the applicant is a good person, good American, and was a good AFROTC cadet.  Unfortunately, while in college, he experienced some difficulties; however, instead of counseling, mentoring, or providing guidance to the applicant, the AFROTC program chose to disenroll him.  When the applicant signed his contract with the United States Air Force he believed that the AFROTC program would act in good faith in supporting his goal to become an Air Force Officer.  Instead he was disenrolled.  This was in error and unjust as AFROTC leadership’s actions, while allowable, caused him to bear a significant financial burden in the form of the recoupment action.  The applicant wanted to proudly serve in the Air Force and was denied this chance.

If AFROTC leadership outlined any significant failures or issues as reasons for disenrollment then perhaps he should have been disenrolled.  However, the facts and circumstances of this case indicate that he was disenrolled for not providing personal medical records to his leadership and failing to attend some physical training.  First, it is questionable as to whether the applicant was even required to provide personal medical records to his leadership while not on active duty.  These records are protected under the Health Insurance Portability and Accountability Act.  Secondly, the fact that he missed physical training could have been easily remedied by counseling and working with the applicant to assist him in understanding his responsibilities and the importance of attending physical training.

Given all of the above and the applicant’s entire submission, the Board should recommend waiving recoupment of the $87,613.00 as such collection would be against equity and good conscience, contrary to the best interests of the United States and an error and injustice.

In support of his request, the applicant provides letters of supports, photos, a personal statement, DD Form 785, Record of Disenrollment from Officer Candidate – Type Training email from commander dated 14 May 2012 to the applicant advising him that two more Condition Events would be added to his disenrollment package and that his scholarship would be terminated.  He also submits various other documents associated with his request.

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

According to the applicant’s DD Form 785, Record of Disenrollment from Officer Candidate – Type Training, dated 24 May 2012, the applicant entered the AFROTC program on 29 January 2010, and was disenrolled on 27 June 2012.  Section III - Reasons and Circumstances for Disenrollment, indicates “Disenrolled under the provisions of AFI 36-2011, paragraph 6.1.5 and AFROTCI 36-2011, paragraph 11.4.2.3, failure to maintain military retention standards.  [Applicant] failed to maintain military retention standards due to his repeated failure to adapt to military training.”

According to the applicant’s DD form 256AF, Honorable Discharge Certificate, on 27 May 2012, he was honorably discharged from the Air Force.

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit B.

AIR FORCE EVALUATION:

HOLM CENTER/CAG/CCX recommends denial indicating there is no evidence of an error or an injustice.  The applicant was disenrolled from AFROTC on 27 June 2012, under the provisions of AFI 36-2011, Air Force Reserve Officer Training Corps (AFROTC) Program, and Cadet Operations, for failure to maintain military retention standards due to his repeated failure to adapt to military training.  He received multiple counseling and received four Conditional Events, which are written notices of failure to maintain AFROTC retention and/or accession standards.  The basis for two of the Conditional Events occurred after he was notified he was being considered for disenrollment.  He also failed to attend mandatory military training, specifically physical fitness training.  The tipping point was watching indecent videos on his cell phone during class.  According to AFROTCI 36-2011, disenrolled cadets may appeal their disenrollment, call to active duty, or recoupment action once.  Suspension and probation cannot be appealed. Requests for reconsideration of the disenrollment decision will always be reviewed; however, changes will only be made based upon new evidence that was not available during the initial investigation.  Written appeals must be submitted to the AFROTC commander no later than one year from the individual's effective date of disenrollment listed on the DD Form 785.  In accordance with DoDI 1215.08, Senior Reserve Officers' Training Corps (ROTC) Programs, those disenrolled from ROTC normally shall be called to active duty in an enlisted grade.  In lieu of call to active duty, AFROTC directed recoupment of scholarship funds.  The recoupment of scholarship funds is consistent with the law, Department of Defense and Air Force instructions.  It is not, as counsel argues contrary to the best interests of the United States and an error and injustice.  Taxpayer money was used to pay for the applicant’s education in anticipation of serving on active duty.  If, however, the applicant would serve two years on continuous active duty in any service, he would be eligible for termination of the recoupment and the principal already paid would be refunded.

A complete copy of the HOLM CENTER/CAG/CCX evaluation is at Exhibit B.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The advisory opinion states the application is untimely.  However, the applicant filed within three years of his disenrollment.  In addition, the opinion references numerous facts with no supporting documentation.  Without reviewing the documentation, the applicant is being denied his due process to respond to these factual allegations.  Finally, the advisory opinion states that the Board does not have jurisdiction over the applicant’s claim because a previous right to appeal the recoupment expired.  Such argument is legally without basis.  The standard for recoupment appeals under AFROTC 36-2011, paragraph 11.14.1, states that “changes will only be made based upon new evidence that was not available during the initial investigation.”  This standard is remarkably different than the standards that apply to this Board.  AFI 36-2603, Air Force Board for Correction of Military Records, states that the Board may grant relief when the applicant demonstrates “the existence of a material error or injustice that can be remedied effectively through correction of the applicant's military record..."

Counsel asks the Board to disregard the advisory opinion, which is both factually and legally incorrect. In the alternative, all of the documentary evidence relied upon in the advisory opinion be provided to counsel to review to ensure the applicant’s due process rights are not being violated.  Counsel reasserts that the government should waive recoupment of the $87,613.00 debt as such collection would be against equity and good conscience, contrary to the best interests of the United States and an error and injustice.

A complete copy of counsel’s response is at Exhibit D.

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 a thorough review of the evidence of record and the applicant’s complete submission, to include the letters of support, we are not persuaded his AFROTC debt should be waived.  Counsel’s contentions are duly noted; however, we do not find his assertions, in and by themselves, sufficiently persuasive in this matter.  We note counsel’s alternative request for the documentary evidence relied upon in the advisory opinion.  Unfortunately, it appears the documentary evidence had a three-year disposition date, consequently, it no longer exists.  Absent the documentary evidence, there is a presumption of regularity on the part of the government in which the applicant was afforded due process and his disenrollment and recoupment actions were consistent with the law, Department of Defense and Air Force instructions.  As noted above, the applicant’s DD Form 785 dated 24 May 2012, reflects he failed to maintain military retention standards due to his repeated failure to adapt to military training.  Additionally, an email provided by the applicant dated 14 May 2012, indicates he was notified that two more Conditional Events would be added to his disenrollment package and his scholarship would be terminated.  As such it is our opinion the applicant has not provided substantial evidence, which would lead us to believe his disenrollment was contrary to the provisions of the governing regulation.  Without significant evidence to indicate the applicant did not commit the offenses noted in the advisory and the DD Form 785, we will not insert ourselves in the place of the responsible officials who had the authority and the necessary information at the time to make a reasoned determination.  Therefore we conclude the applicant has failed to sustain his burden of proof that he has been the victim of an error or injustice.  In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting any of the relief sought in this application.

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-2015-02679 in Executive Session on 14 June 2016, under the provisions of AFI 36-2603:

, Panel Chair
, Member
, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-02679 was considered:

Exhibit A.  DD Form 149, dated 24 June 2016, w/atchs.
Exhibit B.  Memorandum, HOLM CENTER/CAG/CCX, dated 7 August 
  2015.
Exhibit C.  Letter, AFBCMR, dated 6 May 2016
Exhibit D.  Letter, Counsel, dated 16 May 2016.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.