RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00906 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: 1. Section One: By amendment at Exhibit F, his Air Force Academy (AFA) recoupment principal of 3,499.17 be reduced. 1. Section Two: By amendment at Exhibit F, his debt of $4,326.77 (principal and interest) to the Uniformed Services University of the Health Sciences (USUHS) be removed. 2. Section Three: By amendment at Exhibit F, his debt of $2,057.71 (medical facility costs) to the United States Air Force Academy (USAFA) be removed. _________________________________________________________________ APPLICANT CONTENDS THAT: 1. Section One: The original debt was $173,191.00; however, his active duty service reduced the recoupment principal to $127, 853.88. In Feb 02, he received a promissory note for $127,853.88 which was assessed interest at the Federal statutory rate. He continues to make payments to reduce his indebtedness, but the remaining balance is approximately $56,195.00. The amounts in dispute are not significant amounts of money for the government, but they are significant amounts for him. 2. Section Two: He wishes the two debts (AFA and USUHS) to be considered separately. He believes that it is possible for the USUHS principal reduction request to be granted, even if the USAFA principal reduction request is not. 3. Section Three: The $2,729.96 (this amount has changed due to passage of time and payments being made) portion of debt does not relate to any costs paid by the government and is not recoupable under Title 10, Section 2005, USC. The cost represents a third- year medical education costs; however, he never entered the third year of training in USUHS’s medical education program. The $5,313.74 portion of debt corresponds to pro-rata Academy medical facility costs; however, he is asking for the costs to be considered an entitlement under 10 USC 1074. 4. He completed 4-years at the USAFA and 2-years at the USUHS. On 1 Jun 99, he disclosed to the USUHS that he attended law school part-time while enrolled in medical school. He apologized for the omission and withdrew from law school. On 30 Aug 99, he was recommended for disenrollment from USUHS by a Student Promotions Committee for not disclosing his law school attendance. He subsequently resigned from USUHS and worked as a program analyst and an executive officer at Bolling AFB until he was administratively discharged from the Air Force. 5. He discovered the injustice through making various Freedom of Information Act (FOIA) requests, phone, and e-mail communications with USUHS and USAFA from 2002 to 2009. He did not realize the AFBCMR resource was available and he does not dispute any facts between him and government. In support of his request, the applicant provides a nine page personal statement and several documents with regard to his debt to support of his request. His complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant entered into the Regular Air Force on 31 Aug 99 in the grade of second lieutenant (0-1). He completed 4-years at the USAFA and 2-years in medical school at USUHS. After disclosing that he attended a part-time law school he was recommended for disenrollment from USUHS. The Secretary of the Air Force Personnel Council directed the applicant be honorably discharged pursuant to AFI 36-3207. It was determined that he was required to reimburse the United States Government for the pro-rata share of his AFACA and for his USUHS education IAW Section 2005 of Title 10 USC. The applicant was discharged on 18 Jun 01 after serving 1 year, 9 months, and 18 days on active duty. On 9 Mar 12, the applicant requested to administratively close his case for 30 days. On 11 May 12, the applicant requested that his case be reopened. He provided attachments to the e-mail in response to the USUHS and USAFA evaluations. _________________________________________________________________ AIR FORCE EVALUATION: HQ USAFA/JA recommends denial. The Department of Defense Directive 1332.23 states that the service academies will develop joint procedures to establish their Cost Per Graduate (CPG) and Cost of Education (COR) figures. In this case, the applicant requests his principal amount be reduced by $5,313.74 because the cost is for medical facilities and he believes this is an entitlement rather than educational costs. Medical facilities are included in the calculation of the CPG and COE. The applicant signed an O-205 Oath of Allegiance on the day he entered the Academy with the understanding that he would graduate and serve his required time as an officer in the United States Air Force or reimburse the government for the cost of his Academy education. The disputed amount is part of the overall CPG/COE for his particular Class Year; therefore, JA believes the debt and the amount directed is valid and should not be reduced. The complete HQ USAFA/JA evaluation is at Exhibit C. USUHS states that the assessed charge is based on enrollment, not attendance, which is a normal practice among U.S. academic institutions. The complete USUHS evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In a 12-page brief, the applicant makes the following key contentions in his rebuttal: 1. Section One: He would like a reduction in the amount that he owes to the USAFA because this amount was erroneously included in the recoupment principal, which was made in error by the Air Force back in February 2003. His total active duty service obligation (ADSO) was a total of 2,561 days. After subtracting the active duty days served (731 days) and when correctly calculated his corresponding reduction in recoupment is $48,960.00. 2. Section Two: He would like his third-year medical student educational costs to be removed from his recoupment principal balance. This portion of his debt does not relate to any costs borne by the government, and is not recoupable under Title 10, Section 2005, U.S.C. He was enrolled at USUHS from 1 Jul 99 to 30 Aug 99; however, he remained enrolled only to testify in an administrative hearing. He did not receive any training or education during that period of time. 3. Section Three: He would like for the $2,057.71 recoupment principal to be considered a medical and dental entitlement and removed from his debt. Further, he notes the USAFA/JA advisory opinion that suggests the Academy “reviews each case on its own merits and directs accordingly on a case by case basis”; however, such review may violate the equal protection clause of the Fifth Amendment of the Constitution. Further, the Academy does not deny that the recoupment costs assessed to him are considerably higher than the costs assessed to other former Academy graduates. He is not attempting to disavow his payment obligation to the government and his request will lead to a very modest 5.2 percent reduction in his correctly calculated recoupment principal. However, the reduction of 5.2 percent in his recoupment principal will be significant to him. The applicant’s complete submission, with attachments, is at Exhibit F. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After a thorough review of the evidence of record and applicant's submission, we are not persuaded that relief of his indebtedness to the government is warranted. We find no evidence of an error in this case and are not persuaded by his assertions that he has been the victim of an injustice. His contentions are duly noted; however, it is our opinion that his debt was properly established in accordance with his contractual agreement and the governing regulation, which implements the law. Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt the rationale expressed as the basis for our decision that the applicant has not been the victim of an error or an injustice. Therefore, in the absence of persuasive evidence to the contrary, we find no basis to recommend granting the relief sought 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 issues 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-2011-00906 in Executive Session on 11 Sep 12, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 21 Feb 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, USAFA/JA, dated 1 Feb 12. Exhibit D. Letter, USUHS, dated 3 Feb 12. Exhibit E. Letter, SAF/MRBR, dated 10 Feb 12. Exhibit F. Letter, Applicant, dated 10 May 12, w/atchs. Panel Chair