RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-05064 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: The recoupment action be revoked and the payroll deduction for the debt in the amount of $1,997.95 for Tuition Assistance (TA) be reimbursed. APPLICANT CONTENDS THAT: The Air Force Personnel Center (AFPC) initiated recoupment of TA benefits upon his involuntary separation without considering the reason for his separation. He was involuntarily separated In Accordance With (IAW) AFI 36-3207, Separating Commissioned Officers, paragraph 3.4, non- selection for promotion. Per paragraph 1.16, there is no basis for recoupment of TA benefits. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 24 May 03, the applicant entered the Regular Air Force. According to a DD Form 139, Pay Adjustment Authorization, dated 5 Sep 13, the 902nd Force Support Squadron (902 FSS), Randolph AFB, TX initiated recoupment in the amount of $1,997.95 for non-completion of an Active Duty Service Commitment (ADSC) for college courses while using TA. According to his DD Form 214, Certificate of Release or Discharge from Active Duty, on 30 Sep 13, he received an honorable discharge, with narrative reason for separation of “Non-Selection, Permanent Promotion” and was credited with 10 years, 4 months and 7 days of active duty service. In Accordance With (IAW) AFI 36-2501, Officer Promotions and Selective Continuation, dated 16 Jul 04, a promotion is not a reward for past service; it is advancement to a higher grade based on past performance and future potential. The fundamental purpose of the officer promotion program is to select officers through a fair and competitive selection process that advances the best-qualified officers to positions of increased responsibility and authority and provides the necessary career incentive to attract and maintain a quality officer force. AIR FORCE EVALUATION: AFPC/DPSOR recommends denial indicating there is no evidence of an error or an injustice in the processing of his discharge. The applicant had an ADSC for TA at the time of his separation which would indicate that recoupment would apply. Additionally, there is no record showing he requested a waiver of the debt through DPSOR to the Secretary of the Air Force prior to his discharge. AFI 36-3207, paragraph 1.15.1, states “The Air Force normally requires recoupment of a portion of education assistance, special pay, or bonus money received when officers separate before completing the period of duty they agreed to serve.” The basis for recoupment can also be found in DoDFMR 7000.14-R, Volume 7A, Chapter 2 and 37 U.S.C. 303a(e) which states “if a member under a written agreement for pay or benefit does not fulfill the service conditions for the pay or benefit, then repayment of the unearned portion of the pay or benefit will be sought, unless the Secretary of the military department concerned (or designee) makes a case-by-case determination that to require repayment of an unearned portion of the pay or benefit would be contrary to a personnel policy of management objective, against equity or good conscience, or contrary to the best interest of the United States.” A complete copy of the DPSOR evaluation is at Exhibit C. AFPC/JA recommends the applicant’s request be denied as he has failed to establish a material error or injustice. The applicant contends that the Air Force is not considering the nature of his involuntary separation which was beyond his control. However, the failure to be promoted was primarily within his control, as his duty performance fell short of what was required to serve at the next higher grade. JA sees this as conduct that was ultimately within his control and recoupment based on this failure is not unconscionable or inequitable under the circumstances. A complete copy of the JA evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He disagrees with the interpretation of 37 U.S.C. § 303a(e), DODFMR 7000-14-R and AFI 36-3207. The law states that the Secretary concerned determines if repayment is contrary to personnel policy or management objective, against equity and good conscience or contrary to the best interest of the Air Force. In his case, DOD 7000-14-R, paragraph 0201, states that repayment is the default rule unless the member’s failure to fulfill specified service conditions is due to circumstances determined reasonably beyond the member’s control. The general rule is that repayment will not be sought if the conditions of receipt of the benefit cannot be met due to circumstances outside of the member’s control. He was passed over for promotion to the grade of major, as were 10 to 15 percent of all captains, not because he did anything wrong but because the Air Force simply could not promote everyone. It is clear that his discharge was not reasonably within his control. The OPR also recommends denying his request stating that he did not dispute the debt or request a waiver through their office. The DD Form 139, Pay Adjustment Authorization, which authorized the deduction states that he was afforded the due process requirements of DOD 7000.14-R, Volume 7A, paragraph 500104A. He was not. Had he been given the 30 days of notice of the debt collection as is required, he would have disputed the debt. He was not put on notice of the recoupment until he received his final Leave and Earnings Statement (LES). The applicant’s complete response 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 timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an injustice. After a thorough review of the evidence of record and the applicant’s complete submission, we believe the applicant is the victim of an injustice. We note that AFPC/JA states the failure to be promoted was within the applicant’s control as his duty performance fell short of what was required to serve at the next higher grade. However, we disagree. Paragraph 3.4 of AFI 36-3207 describes the effects of a second failure of promotion to the grades of captain, major, and lieutenant colonel. The paragraph appears in Chapter 3, “Involuntary Separations.” We see no reason to consider a given separation reasonably within the control of the applicant when the controlling AFI already classifies it as involuntary. Furthermore, 37 U.S.C. § 303a(e), and DODFMR 7000-14-R states that the Secretary concerned determines if repayment is contrary to personnel policy or management objective, against equity and good conscience or contrary to the best interest of the Air Force. Therefore, we recommend his record be corrected as indicated below. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 5 Sep 13, the Secretary determined that APPLICANT was not required to reimburse the United States government for the cost of funding he received from the Air Force Tuition Assistance Program in the amount of $1,997.95 for the classes taken between 19 Apr and 30 Sep 12. The following members of the Board considered AFBCMR Docket Number BC-2013-05064 in Executive Session on 20 Jan 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 3 Oct 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSOR, dated 29 Jan 14. Exhibit D. Memorandum, AFPC/JA, dated 4 Dec 14. Exhibit E. Letter, SAF/MRBR, dated 8 Dec 14. Exhibit F. Applicant’s Rebuttal, undated. 1 2