RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-01941 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: Her involuntary discharge be overturned, and she be allowed to remain on active duty as an officer. _________________________________________________________________ APPLICANT CONTENDS THAT: In a 10-page statement the applicant’s counsel alleges unfair treatment following the applicant’s elimination from Initial Skills Training (IST) resulting in her discharge and recoupment of funds associated with her United States Air Force Academy (USAFA) education. The Panel members did not faithfully execute their responsibilities in accordance with Air Force Personnel Center Instruction (AFPCI) 36-112, Line Officer Initial Skill Training Reclassification Procedures, in that the Panel members simply accepted the recommendation of her squadron commander, which was biased and discriminatory, without consideration of other factors which demonstrate her potential to serve as an officer in the Air Force. The Panel members are required to “review the elimination packages using the whole person concept to determine if an officer should be reclassified.” In making such a determination, the Panel members were to consider the following factors: 1) The officer’s potential to complete required training for AFSC qualification… 2) The officer’s potential to develop and contribute in subject career field… 3) Any unique or special abilities/skills in high demand languages… 4) Those eliminees with hard science and engineering degrees. 5) The officer’s demonstrated officership and commitment to the Air Force. The Panel gave inappropriate weight to the Commander’s biased assessment of the applicant. Her squadron commander took the extreme position that since she had reservations regarding her ability to launch weapons of mass destruction without hesitation, that she was unfit to serve in the Air Force in any capacity. The Panel failed to consider her student statement and reason for elimination; her potential to develop and contribute in another career field; any skills in “high demand,” languages, and her demonstrated officership and commitment to the Air Force. Her commander failed to directly and appropriately address any aspects of her officer-qualities. He makes no mention of her dedication to the Air Force, her leadership ability, her academic excellence, her motivation, her moral character, her physical fitness or her integrity. Instead, he answered “No– She does not possess the qualities required of an Air Force officer. She believes she can choose what orders and missions she approves of and take the moral stand against those she does not approve of. This is incompatible with what is required of military officers.” The missile career field is the only career field where officers must sign a letter of commitment to use nuclear weapons. The comparison to officers who do not have to sign such a commitment is unfair. There may be hundreds, if not thousands, of officers who oppose nuclear weapons who, as a result of their Air Force Specialty Code (AFSC), did not have to sign a letter of commitment. The commander was required to assess if she was motivated to pursue a non-rated career field; which he responded “Not Applicable,” which further highlights his narrow and biased attitude toward her. The Panel failed to weigh her potential to develop and contribute in a career field. The panel was informed she was qualified to fill other AFSCs. In reviewing her degree, special coursework, and her own preferences, the Panel should have realized there were ample opportunities for reclassification. As there was a need in certain AFSCs, and she was qualified to fill such a need, the Panel should have reclassified her into such a career. Not doing so shows the Panel heavily relied on the ONLY piece of documentation stating she was unfit to fill such a position—her commander’s assessment. The Board failed to consider the applicant’s “high demand” language skills. AFPCI 36-112, requires the board to consider any special abilities or skills in “high demand” that could benefit the Air Force in the future. This section specifically mentions the Chinese language, which the applicant is virtually an expert in the Chinese language and culture. The Board failed to properly consider her demonstrated officership and commitment to the Air Force. She had numerous positive recommendations made by people who knew her both professionally and personally for several years. The only negative viewpoint was not based on any interaction with her, but rather on a personal viewpoint that those opposed to nuclear weapons should not be allowed to serve in the military. For the Panel to consider and weigh her commander’s minimal contacts and viewpoint more significantly than the numerous positive recommendations, which are based on several years of interactions, shows the inappropriate amount of weight the Panel gave to her commanders’ assessment. The board failed to consider her potential payback to the Air Force. She is required to pay the U.S. government the pro rata share of the amount expended on her USAFA scholarship which came to $143,672.85. This sizeable investment in training should not go to waste. While the Air Force seeks to recoup this investment financially, it cannot do so on a professional level. The product produced by this cost is an outstanding, motivated and very capable officer with four years of Mandarin Chinese, two intensive Chinese summer language immersion programs in China, six months at Nanjing University as part of the extremely competitive Study Abroad Program and four weeks in Beijing, China as part of the Air Force’s Language Enabled Airman Program. It took four years of intense Academy training to produce an individual with the skills and knowledge she possesses. Discharging and requiring her to pay back her scholarship – and thus waiting at least another four years to replace her – does not benefit the Air Force. In conclusion, the Panel failed to carefully exercise the “whole person” standard and, in its rush to review 50 eliminee applications the first time and 48 the second time, blindly adopted her commander’s flawed reasoning. The Panel failed to consider alternative career fields, the applicant’s “in demand” mastery of both dialects of Chinese, and her proven exceptional intelligence, dedication, integrity, teamwork, and discipline are all factors attesting to the fact that she should be reclassified. In support of her request, the applicant provides a counsel’s brief with 10 attachments, which include documents related to her training elimination and reclassification board. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 25 May 11, the applicant graduated from the USAFA and upon graduation, was commissioned a second lieutenant in the (13S) Space and Missile career field. Prior to commissioning, she was given a Space and Missile Operations Duty (SMOD) physical (4 Mar 11), as a prerequisite for maintaining her specialty classification. A key component of the SMOD physical is the affirmative willingness to support the nuclear mission. Her successful SMOD physical completion demonstrated her acceptance and willingness to execute the nuclear mission. In Oct 11, at the inception of training, she was presented with a Statement of Personal Commitment where she was to certify her understanding and agreement with “performing duties involving the operation of nuclear-armed ICBMs.” On 11 Oct 11, she self-eliminated based upon her unwillingness to execute the nuclear mission. On 14 Dec 11, the Panel submitted a recommendation against reclassification to the Air Force Personnel Center (AFPC) Commander, who serves as the reclassification and discharge authority. On 30 Jan 12, the AFPC Commander approved the Panel recommendation and, without providing any reasoning, the Chief of Accessions and Service Commitments informed the applicant that she would be discharged from active duty effective approximately 19 Mar 12, and that she had to reimburse the government for the unserved portion of the amount expended on educational assistance. An inquiry was made into this decision, and a new IST Reclassification panel was held on 15 Fen 12, with a decision on 20 Mar 12. The applicant was again not selected for reclassification, and was subject to involuntary discharge on 6 May 12. On 6 May 12, the applicant was honorably discharged in the grade of second lieutenant, by reason of failure to complete a course of instruction. In accordance with Title 10 United States Code, Section 2005 (10 USC 2005), a member who does not complete the active duty service commitment established in return for the cost of their education is subject to recoupment. Only in cases where it is determined the inability to complete the commitment was not within the member’s control may the reclassification/discharge authority request the Secretary of the Air Force Personnel Council (SAFPC), acting on behalf of the SECAF, consider a recoupment waiver. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIP makes no recommendation. DPSIP states that newly accessed officers eliminated from IST are considered by a Panel of senior officers at AFPC for the purpose of recommending reclassification or discharge to the Secretary of the Air Force’s duly appointed officer accession reclassification/discharge authority—the Air Force Personnel Center Commander. Panel members are briefed on their responsibility to review all records based upon a whole person concept. On 14 Dec 11, Panel members reviewed her application, along with 40 other officers eliminated from IST during the same period, using the “whole person” concept. All reclassification submissions contain the same data, a commander recommendation, a personal statement from the member, and a summary of education and qualifications, and the reason for elimination. The Panel reviews all information submitted in the member’s application and develops an independent recommendation for reclassification or discharge. The applicant was one of four officers on this panel recommended for discharge. The reclassification/discharge authority reviews the panel results with special interest and attention paid to the records of those recommended for discharge. The applicant’s discharge recommendation was approved and she was officially notified of the decision. The applicant self-eliminated from IST, and as a result of her self-elimination, her ability to complete her active duty service commitment (ADSC) associated with her scholarship was deemed within her control and therefore she is legally subject to recoupment. However, as a prior enlisted member of the Air Force, she enjoys the legal right to return to enlisted status and may serve the remaining portion of her ADSC in that capacity, thereby negating the requirement to repay the pro-rata share of the unserved ADSC to the United States government. She was informed of this right. Following announcement of the decision to discharge in Jan 12, an anomaly was discovered, in that at the time of this panel, the policy regarding the inclusion of letters of recommendation was under revision. Although the official policy was not changed until 23 Dec 11, the applicant was allowed to submit letters of recommendation for consideration on this panel. In all, she submitted six (6) letters in addition to her commander’s comments. The policy change was anticipated to restrict the number of letters of recommendation to three (3). As such, the AFPC/DPSIP staff reviewed each of the applicant’s letters and selected the three that best supported her reclassification for inclusion in her package. DPSIP states they acted without authority to both include the letters and to select the “best” three letters without consulting with the applicant. Therefore, with the approval of the Panel President, the Chief, of the Accessions Division offered the applicant an opportunity for reconsideration. He contacted the applicant and her chain of command on 13 Feb 12, to inform the applicant of her options. The applicant accepted the opportunity and provided updated information, along with three (3) letters of recommendation for inclusion in her package. The Panel reconsidered the applicant’s reclassification package along with 45 other officers on 15 Feb 12. This review was conducted independent of the Panel’s recommendation of 14 Dec 12. The Panel members arrived at the decision to discharge the applicant and six (6) other officers based upon the entirety of the reclassification application package. The applicant was recommended for recoupment IAW 10 USC, Section 2005, based upon the reason for her training elimination. The discharge authority approved the Panel recommendation and she was notified on 21 Mar 12. The applicant had the legal right to return to enlisted status in the last grade held prior to her separation for the purpose of pursuing a commission as a military officer. She had six months from her date of separation (May 12) to request enlistment. Had she elected to exercise this right, she would have served the remaining ADSC associated with her USAFA scholarship as an enlisted member, and would not have been required to repay the pro-rata share of the unserved portion association with her education. The complete DPSIP evaluation is at Exhibit B. AFPC/JA recommends denial. JA states that they agree with the advisory written by DPSIP, and only adds there is generally a strong presumption in the law that administrators of the military, like other government officials, discharge their duties lawfully and in good faith. This presumption can only be rebutted by cogent and clearly convincing evidence (emphasis added) that the officials’ actions were undertaken in bad faith. Duncan v. United States, 22 Cl. Ct.1 (1990) affd 949 F.2d 1134. See also Sanders v. United States, 594 F.2d 804 (1979). In this case, the IST reclassification panel that met and considered the applicant pursuant to AFPCI 36-112 were briefed that they were to utilize the “whole person concept” in their deliberations, they were sworn, and they certified that they complied with AFPCI 36-112 in making their recommendations. In the absence of evidence (emphasis added) to the contrary, they are entitled to the presumption that they carried out their duties properly and in accordance with their oath. The applicant and her attorney have offered nothing but their own opinion as to what occurred in an attempt to counter that presumption; that is insufficient. JA opines the applicant and her attorney have failed to prove an error or injustice. The complete JA evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The Board’s conclusion there was no error in connection with eliminating the applicant from the Air Force is based on a misunderstanding of her position in this case, and therefore, is in error. It is certainly true she represented her affirmative willingness to support the nuclear mission in her pre-commissioning physical examination questionnaire. She has never said that she is unwilling to support that mission. She indicated something very different in her subsequent answer to a questionnaire about her personally launching a nuclear device. Her point is that while she supports the nuclear mission, she honestly was concerned that she would hesitate if given an order to launch a nuclear weapon. That distinction is real and her response demonstrated uncommon candor. While many officers may indicate a willingness to launch a nuclear device as a hypothetical matter in order to advance in the Air Force, thinking that the occurrence of such a launch would be remote, she answered the question honestly. As demonstrated in her original submission, she has substantial talents and a strong willingness to serve in other areas of the Air Force. Because she answered with uncommon honesty, and her answer was either misunderstood, or unfairly interpreted, her elimination from the Air Force was beyond her control. She was willing, ready and able to serve as an officer in the Air Force. The Air Force needs more officers who are willing to be honest about their subjective concerns, and have her talents and commitment. It is respectfully submitted that she should not have been eliminated from the Air Force and should not be subject to recoupment because she honestly represented her subjective state of mind with respect to personally launching a nuclear weapon. Her choice was to be dishonest or honestly state her subjective state of mind. To say that because she had a choice to be dishonest, and did not make that choice, she, therefore, should be eliminated from the Air Force and face a recoupment is not only an error, it undermines the values of the Air Force and this Country. The Counsel's complete response is at Exhibit E. _________________________________________________________________ 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 injustice warranting partial relief. The applicant is requesting to be retained in the Air Force, contending that her commander’s recommendation to the Initial Skills Training (IST) Reclassification Board was biased and unfair. In this regard, the applicant states that her commander took the extreme position that since she had reservations regarding her ability to launch weapons of mass destruction, without hesitation, that she was unfit to serve in the Air Force in any capacity. The applicant also contends the Panel members failed to consider other factors which demonstrate her potential to serve as an officer in the Air Force, i.e.; her student statement and reason for elimination, her potential to develop and contribute in another career field, and her foreign language skills. After carefully reviewing the evidence of record, and taking into consideration the comments of the Air Force offices of primary responsibility, we believe partial relief is warranted in this case. In this respect, we note that while we are aware that the IST Reclassification Panel members are briefed on their responsibility to review all records based on the whole person concept, we find her commander’s recommendation letter, rendered after observing her for only a couple of weeks, to be biased and based on the applicant’s objections to the use of nuclear weapons. In view of this, we believe she was denied fair and equitable consideration for reclassification and retention by the IST Reclassification Panel. Therefore, we recommend the applicant’s records be sent to another reclassification panel, and that any references in the commander’s letter and the AETC Form 125A relating to her objections to the use of nuclear weapons be redacted. Accordingly, we recommend her 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 issue 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 APPLICANT, be corrected to show that any and all references to her objections to the use of nuclear weapons, be removed from the commander’s letter of 14 Oct 11 and the Air Education Training Command Form 125A, Record of Administrative Training Action, dated 18 Oct 11. It is further recommended that the record be corrected to show that competent authority directed that her record be considered for reclassification and retention by an Initial Skills Training Reclassification Board. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-01941 in Executive Session on 28 Feb 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records, as recommended. The following documentary evidence pertaining to Docket Number BC-2012-01941 was considered: Exhibit A. DD Form 149, dated 4 May 12, w/atchs. Exhibit B. Letter, AFPC/DPSIP, dated 18 Jun 12. Exhibit C. Letter, AFPC/JA, dated 21 Jun 12. Exhibit D. Letter, SAF/MRBR, dated 2 Jul 12. Exhibit E. Letter, Counsel, dated 18 Jul 12. Panel Chair ________________________