RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-02175 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: 1. The decision of the Initial Skill Training (IST) Reclassification Panel be rescinded and removed from his records. 2. He be reinstated on active duty. 3. The recoupment of his pro-rata share to the unserved active duty service commitment (ADSC) associated with his USAF Academy (USAFA) Scholarship be waived. 4. Or in the alternate, the reason for his discharge be changed to Secretarial Authority if he is not reinstated. _________________________________________________________________ APPLICANT CONTENDS THAT: On 12 April 2010, he notified his instructor pilot that he had elected to drop on request (DOR) from the Joint Specialized Undergraduate Pilot Training (JSUPT). He also informed his flight commander of his DOR election. On 13 April 2010, a new Air Force instruction was implemented, requiring all eliminees from IST be considered for reclassification or discharge. His record was above average as documented by his evaluations and flight records. On 15 April 2010, the 84th Flying Squadron commander completed a training review report on him. In that report, the commander stated he displayed above average qualities in professionalism, military bearing and behavior, as well as maturity. However, fourteen days later, his description turned negative and he was labeled a quitter with below average qualities. Despite making the Dean’s List at the USAFA, earning a masters’ degree and having a record of success, he was selected for separation and recoupment of the education assistance he received. His record was arbitrarily ignored because a fellow USAFA graduate did not like that he was honest enough to admit he was not suited to be a pilot. In support of his request, the applicant’s counsel provides a legal brief. The applicant complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 28 May 2008, the applicant graduated from the USAFA and was commissioned as a second lieutenant (2Lt) in the US Air Force. He attended JSUPT from 12 January to 15 April 2010. On 15 April 2010, the applicant notified the flying training squadron commander by letter that he elected to DOR from JSUPT. The primary reasons for his decision were his lack of passion for flying inhibited the capacity to dedicate himself to training and the mission, and his selection of the pilot Air Force Specialty Code (AFSC) was driven by improper rationale and thought process. In the training review report to the 47th Operations Group commander, the squadron commander recommended the applicant be eliminated from JSUPT and retained in the Air Force and be considered for technical training or duty in a non-rated operations assignment. On 19 April 2010, the applicant signed and acknowledged he may be subject to recoupment of a portion of the education assistance, special pay, or bonus money received. On 29 April 2010, an AF IMT 475, Education/Training Report was prepared and signed by the squadron commander documenting the applicant was eliminated due to his election to DOR. In a Commander’s Assessment and Retention Recommendation, the squadron commander suggested the applicant be separated from the Air Force because he displayed slightly below average officership qualities during his time at Laughlin Air Force Base. On 10 May 2010, the IST Reclassification Panel did not consider the applicant for reclassification and recommended he be separated with an honorable discharge. On 18 May 2010, AFPC/CC notified the applicant on the results of the IST Reclassification/Discharge Panel. AFPC/CC stated the applicant had to reimburse the United States government for the unserved portion of the amount expended on his USAFA Education Assistance. On 20 June 2010, the applicant was discharged from the Air Force under the provisions of AFI 36-112, Line Officer Initial Skills Training Reclassification Procedures, for Failure to Complete a Course of Instruction, with an honorable discharge. He served 2 years and 23 days of total active duty. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIP recommends denial of his request for waiver of recoupment. DPSIP states the applicant voluntarily withdrew from his IST course, rendering his ability to fulfill the requirement for which he was assessed impossible. The Line Officer Initial Skills Reclassification panel and the discharge authority deemed he was in direct control of his inability to fulfill his ADSC. His requirement to repay the pro-rata share of his unserved ADSC should remain in effect in accordance with Title 10 USC, Section 2005. The applicant was classified to fill an Air Force requirement as a pilot. He graduated and was brought onto active duty and sent to undergraduate pilot training to fulfill that requirement. The applicant elected to DOR and requested reclassification, which was considered by a panel of five senior officers. The review was not arbitrary; rather, it was designed to meet Air Force reclassification requirements. Based on the Air Force requirements, the applicant’s skills, education, desires, and his commander’s recommendation, the panel determined his reclassification was not in the best interest of the Air Force. In an attempt to highlight an inequity in the recoupment process, he references recent force management initiatives that encourage USAFA graduates to voluntarily separate after fulfilling three of their five-year ADSC. On 25 March 2010, the Secretary of the Air Force (SecAF) announced an expanded force management program, which included a waiver of up to two years of the 5-years ADSC associated with the USAFA scholarship. The program was limited to AFCSs that were overmanned at the time of the announcement. The program was not open to pilots as these AFSCs are historically undermanned. In addition, eligibility was limited to officers who already completed IST. Because of his self- elimination from IST and the fact he was accessed to active duty to fill a pilot requirement, he was never eligible for the program. The DPSIP complete evaluation is at Exhibit C. AFPC/DPSOS recommends denial of his request for waiver of recoupment and concurs with DPSIP. DPSOS states the applicant’s elimination from training, and resulting inability to fulfill his ADSC was within his control. The requirement to repay the government the pro-rata share of his unserved ADSC should remain in effect IAW Title 10 USC, Section 2005. The applicant contends he should be exempt from the panel process because he submitted his DOR prior to the establishment of the Line Officer Initial Skills Reclassification panel procedures. On 12 April 2010, the SecAF established the Line Officer Initial Skills Training Reclassification panel to ensure the Air Force executes officer reclassification in a deliberate manner. The Secretarial authority to reclassify or discharge officers unable to complete initial skills training has not changed. The SecAF simply elected to establish a more formalized process to execute the program. The timing of the applicant’s DOR has no bearing on the Secretarial authority to discharge him in lieu of reclassification. He further contends he was effectively required to sign a recoupment statement. The statement is simply an acknowledgment that the possibility exists that he will be required to repay the pro-rata share of the unserved ADSC associated with his USAFA scholarship IAW Title 10 USC, Section 2005. The complete DPSOS evaluation is at Exhibit D. AFPC/DPSIP recommends denial. DPSIP states a panel of five field grade officers reviewed the applicant’s elimination package and they determined he would be discharged. The panel considered all eliminees using the whole person concept and made the recommendation for discharge and recoupment of educational cost. AFPC/CC was the final approval authority and accepted the recommendation from the panel. The complete DPSIP evaluation is at Exhibit E. AFPC/JA recommends denial and concurs with the reasons expressed in all the advisories. JA states the applicant executed a Record of Acceptable, Obligation and Oath of Allegiance on 1 July 2004; Title 10, USC, section 2005 which states if he voluntarily, or because of misconduct, failed to complete that period of active duty or failed to fulfill any term or condition prescribed by the SecAF, he would as specified by the Air Force, reimburse the United States government for the percentage of his education costs equal to the period of active duty that he failed to complete. The applicant met a reclassification board pursuant to AFI 36-112 and was recommended for discharge from the Air Force and recoupment of the pro-rate share of the monies expended on his behalf pursuant to 10 USC 2005. The SecAF approved the recommendation and the applicant was discharged and ordered to pay over $128,000 in recoupment expenses. Officers like the applicant, who received financial assistance from the AFA by virtue of a contract signed before 1 April 2006, are subject to recoupment as a training eliminee if the first failure is determined to be within the applicant’s control, absent a Secretarial determination that recoupment would be contrary to a personnel policy or management objective, against equity and good conscience, or contrary to the best interest of the United States. With regards to the applicant’s belief that the outcome in his case was unfair; JA states the Board has authority to correct a record only upon the finding of an error or injustice. The advisories have already discussed that no errors occurred in the applicant’s case. Federal courts have consistently defined “injustice” within the meaning of 10 USC 1552 as that behavior or action that rises to a level that shocks the conscience. This is a tough standard that requires more than merely deciding that an action taken might be viewed as unfair. JA states the circumstances in this case clearly cannot be characterized as shocking the conscience. JA states the SecAF properly exercised his discretion and determined the basis for the applicant’s elimination was within his control and that recoupment was pursuant to a clearly established personnel policy. Moreover, under all the facts presented, recoupment was not contrary to equity and good conscience or the best interest of the Air Force. The applicant challenges the decision of the Air Force to separate him rather than reclassify him into another career field, characterizing it as being contrary to the evidence, arbitrary and ultimately unfair. JA disagrees and states the decision to discharge the applicant was in essence a force management decision made after careful evaluation of all the factors in the applicant’s record. Five disinterested senior officers, who by charter of the SecAF acted in the best interest of the Air Force, made the initial review and recommendation. There is no evidence in the case file that proves, or even suggests, that the Air Force officials responsible for the separation and recoupment decisions acted arbitrarily or abused their discretion. The complete JA evaluation is at Exhibit F. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant’s counsel states that historically every pilot that initiated a DOR was allowed to move to another career field unless they engaged in misconduct or had an abysmal record. Had the applicant known there was a real possibility he would be removed from the Air Force, he would have continued in pilot training. While he was not the best pilot candidate, he was not failing when he initiated his DOR. The applicant realized it was better for the Air Force if he pursued another career field. He even volunteered to go directly to flying Unmanned Aerial Vehicles (UAVs) as a way to capitalize on the training he had already received. Further, given the applicant’s grades, his MBA and otherwise good record, he had no reason to believe he would be forced out of the Air Force. The unsubstantiated and unjust commander’s assessment and retention recommendation was the main reason the applicant was discharged rather than reclassified. In the training review letter, it states the applicant displayed above average qualities in professionalism, military bearing, behavior, and maturity during military training with the flying training squadron and recommended he be retained. As an officer with an engineering degree from the USAFA, the applicant should have received special consideration for reclassification. Given his otherwise excellent record, the negative commander’s assessment and retention recommendation appears to have unjustly impacted the decision to retain the applicant. Counsel notes that AFPC makes a point that the new instruction was to discontinue the practice of allowing overages in certain career fields. The applicant was not given special consideration. Counsel states the applicant’s request to DOR was initiated on 12 April 2010 and should have been processed under the rules prior to the implementation of AFPCI 36-112 which allowed members to be reclassified. As an engineer with an excellent record, he should have been reclassified if in fact the instruction applied to him. The applicant’s counsel 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 warranting favorable action on the applicant's request. After reviewing the complete evidence of record, we are not persuaded by counsel's arguments that the applicant has been the victim of an error or that he has suffered an injustice. While the applicant's counsel argues that the main reason the applicant was discharged instead of being reclassified was the review by his commander, he has not presented sufficient evidence that those responsible for making these decisions acted arbitrarily or abused their discretionary authority. Although Counsel asserts that other pilots who have previously elected to DOR were allowed to move to another career field unless they engaged in misconduct or had an abysmal record, he has not provided sufficient evidence to show the applicant was treated differently than other pilots similarly situated. Further, Counsel argues that had the applicant known there was a real possibility he would have been removed from the Air Force, he would have continued in pilot training. He also states that when the applicant made his decision to DOR, he fully expected to be allowed to move to another position in the Air Force. However, by the applicant's own admission in the DOR Questionnaire (question 10), the applicant states "conversely, I've also considered the possible consequences of Dor-ing. I've considered that I most likely will not get the-classification of my choice, that I may get the needs of the Air Force or worse, that I may be discharged against my will. Although these consequences and uncertainties scare me, I still feel that those can't be reasons why I stick it out and become a half-hearted mediocre pilot". Consequently, Counsel's arguments are without merit and we find no basis to rescind or remove the IST Reclassification Panel's decision from the applicant’s records or to reinstate the applicant on active duty. Counsel makes several other contentions and they are duly noted; however, they have been sufficiently addressed by the Air Force OPR and we agree with their recommendations. Therefore, we adopt the rationale expressed as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Regarding the applicant’s request to change the reason for his discharge, in view of the circumstances, we find no basis to change it to Secretarial Authority. Therefore we conclude the applicant has failed to sustain his burden that he has been the victim of an error or injustice. In the absence of evidence to the contrary we find no basis to recommend the relief sough 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 issue(s) 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 AFBCMR Docket Number BC-2010-02175 in Executive Session on 21 April 2011, under the provisions of AFI 36-2603: The following documentary evidence pertaining Docket Number BC- 2010-02175 was considered: Exhibit A. DD Form 149, dated 16 Jun 10, w/atchs. Exhibit B. Applicant’s Master Personnel Record. Exhibit C. Letter, AFPC/DPSIP, dated 6 Dec 10. Exhibit D. Letter, AFPC/DPSOS, dated 10 Dec 10. Exhibit E. Letter, AFPC/DPSIP, undated. Exhibit F. Letter, AFPC/JA, dated 12 Jan 11. Exhibit G. Letter, SAF/MRBR, dated 28 Jan 11. Exhibit H. Letter, Applicant’s counsel, dated 22 Feb 11, w/atchs.