RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-004519 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to reflect he is entitled to receive Multi-Year Special Pay (MSP). ________________________________________________________________ APPLICANT CONTENDS THAT: His recruiter promised him that upon entering active duty his yearly salary would be $131,000 which would include MSP of $25,000.00. The recruiter’s promises persuaded him to enter into the Financial Assistance Program (FAP). Had he known he would not receive the MSP he would not have entered military service. The Air Force Board for Correction of Military Records (AFBCMR) recently set precedent in granting approval for MSP for an Air Force physician in a similar situation. The Statement of Understanding notes a participant would be eligible for MSP if the individual was not incurring an active duty service commitment (ADSC) for medical education. The applicant believes he would incur an ADSC for his participation in FAP and not for medical education. He further believes he was eligible for MSP because he did not receive monies for his medical education. In support of his request, the applicant counsel provides an expanded statement and copies of the applicant’s FY 2006 Contract for the Financial Assistance Program (FAP) and FY 2006 Statement of Understanding (SOU), the case file for AFBCMR Docket Number BC-2011-03040, and other documents related to this matter. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 2 Dec 05, the applicant signed the FY 2005 Contract Financial Assistance Program (FAP) for Physicians in Specialized Training and the Statement of Understanding for the F. Howard Hebert, Armed Forces Financial Assistance Program (AFFAP), acknowledging he understood the criteria for the program and the benefits he was entitled to receive. The applicant participated in the FAP from 2 Dec 05 through 30 Jun 09. The FAP program augments critically short medical specialties by offering financial assistance to residents training in these specialties in exchange for an ADSC upon completion of their training. This assistance is in addition to the salary paid by their civilian residency program. On 28 Jun 09, the applicant commenced his service in the Regular Air Force. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is attached at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: AFRS/SOC recommends denial, indicating there is no evidence of an error or an injustice. The applicant signed his FAP Contract acknowledging his understanding of the financial incentives which he was contractually entitled during his FAP sponsorship and his ADSC. Moreover, he signed the FY 2006 FAP SOU acknowledging he understood, by initialing that MSP would not be available to him. There was no evidence found to substantiate the applicant was offered or given false statements or promises of base pay to include MSP, loan repayments, or guaranteed fellowship acceptance by the recruiter. In an effort to substantiate his request, the applicant contacted his former recruiter and attempted to persuade him to sign an affidavit indicating the recruiter had made numerous promises pertaining to his salary to include MSP, loan repayments, and guaranteed fellowship acceptance. The recruiter found the affidavit request to be untrue and denied the applicant assistance due to the precarious and unreliable nature of the applicant’s requests. A complete copy of the AFRS/SOC evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel notes the Chief, Congressional Inquiry Division acknowledged in a response to the applicant’s Congressional representative that several promises were made to the applicant by his recruiter. The applicant believes then and now that this statement proves he was promised an annual salary of $131,000, to include MSP. The advisory writer does not address this issue and now contends that MSP was not offered to the applicant. Instead, he cites a provision of the AFFAP SOU contending a review of Air Force Recruiting Service (AFRS) records revealed no evidence of false statements or promises for base salary with MSP. The advisory writer then accuses the applicant of soliciting and attempting to commit a fraud on the United States. The vague and poorly worded provision of the AFFAP SOU indicates that, to receive MSP, physicians must have either eight years of creditable service or have "no ADSC for medical education." The applicant believes he was entitled to MSP upon his initial entry into the Air Force because the active duty service commitment he incurred was not "for medical education" but for his participation in the AFFAP program. The applicant’s contract explicitly stated that he agreed and understood he is incurring an ADSC for "any participation in the program" and for "sponsorship in the AFFAP…based on the provisions in effect on the date my financial assistance benefits commence." The contract also stipulated that, while a member of the AFFAP is in good standing, he is entitled to a monthly stipend, to receive pay and allowances for active duty, to receive an annual taxable grant, and to have all educational expenses paid that the Air Force deems normal and required. The applicant did not have any educational expenses paid by the Air Force; he only received stipends, active-duty pay, and taxable grants. We note the fact that these grants were taxable demonstrates that they were not payments for educational expenses. The Congressional Inquiry Division addressed paying off medical student loans and stated the AFFAP is a financial assistance program and not a loan repayment program. Furthermore, participants in the program receive significant financial support and are allowed to determine how they should utilize their financial support. There was documentation provided with the applicant’s original application showing the financial support the applicant received in the form of stipends, active duty pay, and taxable grants. The applicant did not incur any active duty service commitment explicitly for medical education. The AFFAP program did not pay for the applicant’s medical education. The AFFAP program paid stipends to the applicant to sustain himself while he put himself through medical school. There was no language in the applicant’s contract or statement of understanding linking his ADSC to payments received for medical education. The statement indicating that a review of AFRS records found no evidence of false statements or promises of base salary to include MSP offered by recruiter provides little in determination of an error and injustice in this case. Of course the recruiter is not going to maintain file evidence of "false statements" made. In fact, the recruiter admitted to the applicant during a telephone conversation that, upon his Permanent Change of Station (PCS) move in 2007, that the recruiter shredded all documents in his possession related to the applicant’s recruitment. This act of shredding documents related to the applicant’s recruitment suggests that the recruiter had something to hide or that his recruitment of the applicant was not proper and did not want to make it a matter of record. The advisory opinion for another Air Force physician described how it is standard procedure for recruiters to provide applicants for the Medical Corps with an estimated pay chart based on current regular and special pay amounts. However, it was noted that the AETC Form 1431, Medical Service Grade and Pay Computation Worksheet, is required in a Medical Corps application. It was further noted applicants are provided the locally produced product or the AETC FM 1431 form for informational purposes only for an idea of estimated pay after residency. The applicant was not provided with either a locally produced product or an AETC FM 1431. This absence of an AFRS record, which was required to be provided to the applicant and to be maintained by the recruiting service, reflects negatively on that service in that it is self-serving that such a record was either never created or, if it was, not maintained; or worse, shredded. This Board should hold the AFRS accountable for the absence of this record and for failing to provide the applicant a definitive document about his pay entitlements. The fact that other Air Force physician received such a document that reflected a promised immediate entitlement to MSP shows the recruiting service has made the advisory writer called a false statement about salary entitlements. In the case of the other Air Force physician his recruiter induced him to enter into the AFFAP program, and active service, by telling him that he could expect to receive the MSP annual lump sum payment when he entered the Air Force, not after completion of an active duty service commitment. The Board recognized the injustice in this practice and corrected the error by awarding the physician the amount claimed as a matter of contract enforcement. We also suggested that an Inspector General investigation should be initiated to get to the root of the shameful practices in Air Force medical recruiting and stop these practices before they happen again. If was further noted that the advisory opinions did not address if there was any official concern about the practice of falsely promising MSP. By and through this present application, we once again urge referral of these matters to the Air Force Inspector General. A wide ranging inquiry would no doubt reveal the depth and breadth of false or inaccurate representations in Air Force medical recruiting. In the end, this issue is not solely about money promised. It is about mission effectiveness and mission accomplishment. In trying to correct this matter, the applicant contacted the recruiter to get clarification on the information provided him at the time of his recruitment. The applicant also forwarded the information from the recruiter to the Area Defense Counsel at Nellis AFB. This shows the applicant was not soliciting assistance to fraud the Air Force in fact he was trying to work within the Air Force legal system. The applicant also contacted medical officials at various levels and positions in his effort to seek assistance to correct the error and injustice in his case. In the final analysis, the applicant sits precisely in the place the other Air Force physician was when this Board recognized the error and injustice in the manner in which the physician was recruited by representations of immediate receipt of MSP. The applicant and the other physician relied on promises of salary amounts that turned out not to materialize and threw both of them into financial hardship such that leaving the Air Force has become the only viable solution to an unworkable situation. We ask this Board to recognize the error and injustice against the applicant and to send a clear message to the Air Force medical recruiting service that if their house is not now in order, it needs to be fixed before more damage is done. A complete copy of the counsel’ response with attachments 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. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. The applicant contends his recruiter mislead him to believe his yearly salary would include Multi-Year Special Pay (MSP). We took notice of the applicant's complete submission, to include his rebuttal response, in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. The applicant signed and initialed his FAP Contract and Statement of Understanding indicating he understood and was aware of the monies he would receive while participating in the financial assistance program and while on active duty. There was no evidence found to substantiate the applicant’s assertion that his recruiter offered or gave false promises to the applicant regarding pay, loan repayments, or guaranteed fellowship acceptance. While Counsel cites a case where the Board recommended granting the similar request of another applicant, essentially asserting that similar consideration should be applied to the applicant’s case and the requested relief should be granted, we do not find that our previous action in the noted case makes the applicant the victim of an error or injustice. In this respect, we note that each case before this Board is considered on its own merits, and precedent does not bind us. While we do strive for consistency in the manner in which evidence is evaluated and analyzed, we are not bound to recommend relief in one circumstance simply because the situation being reviewed appears similar to another case. In this respect, we note that in the cited case, the Board found the evidence presented by the applicant, specifically, a copy of a pay estimate prepared by his recruiter indicating that he would receive MSP, sufficient to conclude that he could have been led to believe that he would receive MSP during the initial years of his service. However, we have no such showing in the instant case. While Counsel would like to believe that the Board’s action in the cited case constitutes evidence of a systemic practice of deliberately misleading physicians to believe they will receive MSP, despite clear language to the contrary in the contract, we do not find the evidence presented by this applicant sufficient to conclude that he was somehow misled about the overall compensation he could expect to receive in the initial years of his active service. While the applicant’s assertions are duly noted, other than argument and innuendo, neither the applicant nor his Counsel have presented any real evidence to support his claim that he was promised a higher level of compensation than he currently receives. Therefore, we find no basis to conclude that the applicant was promised anything more than what was described in the contract that he signed or recommend that any relief be granted. ________________________________________________________________ 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-2012-04519 in Executive Session on 18 Jul 13, under the provisions of AFI 36-2603: , Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 26 Aug 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFRS/RSOC, dated 28 Nov 12, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 29 Nov 12. Exhibit E. Letter, Counsel, dated 24 Dec 12, w/atchs.