RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-02952

						COUNSEL:  

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

He receive a waiver/cessation of the recoupment of his United States Air Force Academy (USAFA) education costs in its entirety.  

APPLICANT CONTENDS THAT:

He was removed from Initial Flight Screening because of inability to safely land aircraft and subsequently from Combat Operations for academic deficiency.  He requested a reclassification into Security Forces however, an Air Force (AF) reclassification board declined to reclassify him, and he was involuntarily discharged for the convenience of the AF.  His contract with the AF, executed when he entered Basic Cadet Training, specifies that he is liable for recoupment action only if he leaves active duty voluntarily, or because of misconduct.  Applicable AF regulations also limit recoupment to voluntary discharge or discharge because of misconduct.  In his circumstance recoupment of his USAFA education costs would be an injustice.  

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

STATEMENT OF FACTS:

According to documents extracted from his military personnel record the applicant signed the USAFA Form 0-205, Record of Acceptance, Obligation, Reimbursement, and Oath of Allegiance, on 26 Jun 08.  

The applicant attended the USAFA in cadet status from 26 Jun 08 to 22 May 12. 

On 23 May 12 the applicant entered active duty (AD) in the Regular Air Force.

On 10 Jun 13, the applicant was disqualified from Undergraduate Combat Systems Officer (CSO) Training, due to academic training deficiency.   

On 16 Dec 13, the applicant was furnished an honorable discharge, and was credited with 1 year, 6 months, and 24 days of active service.   

On 1 Dec 14, the Air Force Review Boards Agency (SAF/MRB) advised the applicant his requested remission of indebtedness for $121,800.78, resulting from the recoupment of his USAFA scholarship on 16 Dec 13, was disapproved.  The memorandum states that evidence indicated the applicant was eliminated from pilot training in Dec 12, and he was reclassified into undergraduate combat systems officer training, and was eliminated due to an academic deficiency.  The reclassification board then denied his second reclassification and recoupment for his USAFA education was not waived.  

According to Reserve Order ROBA-0600, dated 13 Aug 15, the applicant was promoted as a Reserve of the Air Force to the rank of First Lieutenant (1Lt), with a date of rank (DOR) and effective date of 23 May 14.

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force office of primary responsibility (OPR), and AFPC/JA, which are attached at Exhibits C, D, and G.    

AIR FORCE EVALUATION:

AFPC/DPSIP recommends the applicant exhaust all reasonable administrative remedies by submitting an application to the Secretary of the Air Force Remissions Board (SAFRB) using the guidance in Air Force Guidance Memorandum (AFGM) 36-02, Remission of Indebtedness.  Notwithstanding the above, they reviewed the applicant’s case and determined he was eliminated from the CSO undergraduate course due to academic deficiency.  In accordance with (IAW) AFPC 36-112, Line Officer Initial Skill Training Reclassification Procedures, his Initial Skills Training (IST) reclassification package was reviewed by the AFPC IST Reclassification Panel on 17 Oct 13.  The IST panel recommended the applicant be discharged and a waiver of the recoupment of the cost of his USAFA education from the Secretary of the Air Force (SAF) be requested to the approval authority, the AFPC commander.  The AFPC commander approved the discharge of the applicant but declined to request a SAF waiver and ordered recoupment be sought in conjunction with the discharge.

A complete copy of the AFPC/DPSIP evaluation is at Exhibit C.

AFPC/JA concurs with AFPC/DPSIP that the applicant has not exhausted his administrative remedies, and recommends he seek remission of debt for his USAFA education through the established process governed by AFGM 36-02.  Notwithstanding the above, after a thorough review of the evidence presented, they found no error in the applicant’s assessment of recoupment as it was done IAW established Air Force instruction; AFI 36-3207, Separating Commissioned Officers, paragraph 3.13, Probationary Officers Who Do Not Complete Initial Skills Training, and applicable procedures.  Further, as the applicant signed USAFA Form 0-205, Record of Acceptance, Obligation, Reimbursement, and Oath of Allegiance, he was on notice of the possibility of recoupment of the cost of his USAFA education in the event he did not complete his service commitment, they do not find an injustice that compels a complete remission of the debt.

A complete copy of the AFPC/JA evaluation is at Exhibit D.  

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant’s counsel refutes virtually every point made by AFPC/DPSIP and AFPC/JA in respect to not exhausting administrative remedies, that no error in the applicant’s assessment of recoupment, and its being done in accordance with (IAW) established instructions and procedures.  He argues that the applicant previously applied for remission/waiver of his debt to DFAS and was denied.  Counsel opines that the denials of the applicant’s attempts to have the debt waived due to error, injustice, and financial hardship, stand for the proposition that the AFBCMR Board, and only this Board, is even willing to address the question of whether the AF had the authority to impose the recoupment obligation, or even if it did, whether it was equitable to do so.  Counsel challenges AFPC/JA’s claim that the applicant was obligated to pay recoupment because he signed the USAFA Form 0-205, and he failed to complete the specified educational requirements.  Counsel argues that he failed initial skills training after graduation from the USAFA, therefore, not applicable to the USAFA Form 0-205 educational requirements.  Further arguments are focused on AFPC/JA’s reference to AFI 36-3207, Separating Commissioned Officers, paragraph 3.13, Probationary Officers Who Do Not Complete Initial Skills Training, as the authority for recoupment in the case of failure of initial skills training.  

Counsel states that AFPC/JA’s evaluation is misleading because it refers to changes put into effect in 2011, not the 2004 version that was extant at the time the applicant executed his 2008 contract.  Additionally, counsel questions AFPC/JA’s claim that the Board is not bound by its own precedent, citing a previous case repudiated by the Federal Court.  Counsel ends by advising the Board that the applicant has applied for and has been accepted into service in the Air Force Reserve, effective 15 May 14.  He opines that recoupment was first instituted as an alternative to active service in an enlisted capacity, the idea being that the taxpayers were entitled to some service for their investment in the training and education of the cadet.  The applicant’s serving in the Air Force Reserve indicates his willingness to serve his active duty service commitment.  

A complete copy of the response to the Air Force Evaluations is at Exhibit F.

ADDITIONAL AIR FORCE EVALUATION:

AFPC/DP2LT recommends denial indicating there is no evidence of an error or an injustice.  Air Force Personnel Center Instruction (AFPCI) 36-112, Line Officer Initial Skill Training Reclassification Procedures, paragraph 1 states “Line Officer initial skills training eliminees, whether elimination was self-initiated or not, and whether before or after training commences (to include initial training declination), will be considered for reclassification contingent on current AF requirements.  A panel will be convened as required to board all eliminee packages received by HQ AFPC/DPSIP since the last board convened.”  The applicant was eliminated from the Combat Systems Officer (CSO) undergraduate course at NAS Pensacola on 24 Jun 13, due to academic deficiency.  His Initial Skills Training (IST) reclassification package was reviewed by the AFPC IST Reclassification Panel on 17 Oct 13.  The IST panel recommended the applicant be discharged and a waiver of the recoupment of the cost of his USAFA education from the Secretary of the Air Force (SAF) be requested.  The applicant was properly considered by the IST Reclassification Panel and discharged with recoupment of the cost of his USAFA education by the approval authority, the AFPC commander.

A complete copy of the AFPC/DP2LT evaluation is at Exhibit G.  

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant’s counsel argues the AFPC/DP2LT advisory provides no legal rationale for the action of the AFPC/CC in declining to follow the Reclassification Panel’s recommendation of waiver of recoupment.  Counsel contends the additional advisory ignores the applicant’s citations to law and authority, does not rebut it, and instead points this Board to a brand new Center Instruction (AFPCI 36-112) that, also provides no authority supporting recoupment.  Counsel further contends AFPCI 36-112, appears not to have been followed: paragraph 3.2.7, states: If the [recommendations of the Panel] are not approved, they will be returned to the panel president for further discussion and action.  It appears the AFPC/CC simply disapproved the waiver recommendation but failed to return it to the panel for further consideration as the instruction requires.  Counsel reiterates the applicant is now serving as a Selective Reserve officer, further reason, if any were needed, that he is the victim of both legal error and an injustice.

A complete copy of the response to the additional Air Force Evaluations is at Exhibit I.

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of error or an injustice.  After a thorough review of the evidence of record and the applicant’s complete submission, to include his counsel’s rebuttals, we are persuaded the applicant is the victim of an injustice.  While we note the comments of AFPC/DPSIP and AFPC/JA indicating relief should be denied because the applicant has not exhausted his administrative remedies, and notwithstanding his failure to exhaust administrative remedies, their advisories and AFPC/DP2LT’s additional advisory found no error in the assessment of recoupment as it was accomplished in accordance with established Air Force Instruction, we are convinced the evidence substantiates that corrective action is warranted.  In this respect we note that on 1 Dec 14, the Air Force Review Boards Agency (SAF/MRB) advised the applicant his requested remission of indebtedness for $121,800.78, resulting from the recoupment of his USAFA scholarship on 16 Dec 13, was disapproved, thereby exhausting his administrative remedies.  Further noted is the AFPC/DPSIP summary and the 1 Dec 14, SAF/MRB memorandum to the applicant, both acknowledge the reclassification board’s denial of his second reclassification request.  We are compelled to believe that the applicant’s attempt to remain on active duty by requesting a second reclassification, and the fact that he is currently serving as a Reserve officer, signify he is willing and able to serve his active duty service commitment. It is further noteworthy that the IST panel of 17 Oct 2013 recommended waiver of recoupment.  We are persuaded that under these circumstances, a recoupment of his USAFA education costs is an injustice.  Therefore, we recommend the applicant’s records be corrected as indicated below.

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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that in conjunction with his discharge on 16 December 2013, the Secretary of the Air Force (SAF) determined that he was not required to reimburse the government for the costs of education at the United States Air Force Academy.

The following members of the Board considered AFBCMR Docket Number BC-2015-02952 in Executive Sessions on 21 Apr 16 and 20 Oct 16, under the provisions of AFI 36-2603:

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-02952 was considered:

	Exhibit A.  DD Form 149, dated 9 Jul 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSIP, dated 4 Dec 15.
	Exhibit D.  Memorandum, AFPC/JA, dated 13 Jan 16.
	Exhibit E.  Letter, SAF/MRBR, dated 22 Feb 16.
	Exhibit F.  Letter, Counsel, dated 21 Mar 16. 
	Exhibit G.  Memorandum, AFPC/DP2LT, dated 15 Jun 16.
	Exhibit H.  Letter, SAF/MRBR, dated 28 Jun 16.
	Exhibit I.  Letter, Counsel, dated 20 Jul 16.  

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.