RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-05130 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: He receive a waiver for recoupment of the amount expended on the unserved portion of his active duty service commitment (ADSC) for the cost of his advanced education at the United States Air Force Academy (USAFA). APPLICANT CONTENDS THAT: The version of the Title 10 United States Code (USC),Section 2005 in effect at the time of his ADSC requires that in order for a service member to be required to pay recoupment for educational assistance, his discharge must be voluntary or for misconduct. His discharge was neither voluntary nor for misconduct. He chose to self-eliminate from Undergraduate Pilot Training (UPT) due to medical issues with his hand and his desire to accelerate his Air Force career. He did not voluntarily leave the Air Force. His discharge was not for misconduct or wrongdoing and therefore a discharge under those circumstances cannot be classified as misconduct. As his discharge was not voluntary and not a result of misconduct; recoupment of educational assistance is not appropriate in this case. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 27 May 09. On 4 Feb 10, according to the applicant’s aeronautical orders, he commenced Undergraduate Primary Flight Training. On 12 Nov 10, the applicant self-eliminated from UPT. On 9 Jun 11, according to documentation submitted by the applicant, he received a Letter of Reprimand (LOR) and establishment of a Unfavorable Information File (UIF), for an incident that occurred in his personal life. On 27 Jul 11, the applicant was recommended for discharge by the Air Force Line Officer Initial Skills Training (IST) Reclassification panel. The discharge authority approved the panel recommendation, directing the applicant’s discharge. On 4 Nov 11, the applicant was furnished an honorable discharge, with a Narrative Reason for Separation of “Failure to Complete a Course of Instruction” and was credited with two years, five months, and eight days of active service. On 9 Apr 14, the applicant filed a Waiver/Remission of Indebtedness Application for remission of the $84,855.19 owed in educational assistance recoupment. On 18 Nov 14, the applicant’s application for remission was disapproved. The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C and D. AIR FORCE EVALUATION: AFPC/DPSIP recommends denial indicating there is no evidence of an error or an injustice. The Air Force Line Officer IST Reclassification panel considered the applicant’s desires and capabilities, commander recommendations, and ultimately recommended him for discharge. In addition, the panel considered recoupment of the pro-rata share of the unserved ADSC associated with the applicant’s scholarship. Per Title 10 USC, Section 2005 and the associated Department of Defense Financial Management Regulation, recoupment of the pro-rata share of an unserved ADSC will be sought in all cases except in those where the inability to complete the commitment is deemed not in the member’s control. Based upon the applicant’s self-elimination from training, the panel and discharge authority deemed his inability to complete his ADSC was completely within his control. Therefore, the Air Force is legally required to direct recoupment of the pro-rata share of the unserved ADSC associated with the applicant’s scholarship. A complete copy of the AFPC/DPSIP evaluation is at Exhibit C. AFPC/JA recommends denial indicating there is no evidence of an error or an injustice. On 30 Jun 05, the applicant executed a Record of Acceptance, Obligation and Oath of Allegiance (USAFA Form 0-205), which contained the following provision: As a condition of receiving advanced education as defined in Title 10, United States Code (USC), Section 2005, I agree: c. that if I voluntarily or because of misconduct fail to complete that period of active duty or fail to fulfill any term or condition prescribed by the Secretary of the Air Force, I will, as specified by the Air Force, reimburse the United States government for the percentage of my education costs equal to the period of active duty that I fail to complete… Additionally, in accordance with AFI 36-3207, Separating Commissioned Officers, unless waived by Secretary of the Air Force (SECAF) or delegee, officers separated [for failure to complete initial skills training] are subject to recoupment of education assistance, special pay or bonus money received. The applicant’s elimination in this case (dropped on request from flight training) was clearly a voluntary act within his control. While the member claims he had a “medical issue,” he was not disqualified for medical reasons and there is nothing in the record which indicates that the applicant had a medical issue which precluded his continued training. His choice to be dropped from training was voluntary. It was his voluntary actions which ultimately resulted in his separation. A complete copy of the AFPC/JA evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Through counsel the applicant refutes virtually every point made by the OPRs and argues that his separation from the Air Force cannot be considered voluntary under the statute or under his agreement. The record clearly states that he did not apply for separation but requested to be reclassified after self- elimination from training. The reason he self-eliminated was because he felt his career was being bogged down, that UPT was taking too long, and he felt a need to move into a career field where he could quickly be serving the Air Force. He did not know or foresee that elimination from IST would result in his voluntary separation from the Air Force. In support of his response, the applicant’s counsel references previous court rulings where the Federal Courts have held the deciding factor in whether a course of action is considered voluntary. The applicant requests his separation program designator (SPD) be changed from “JHJ” (Failure to Complete a Course of Instruction) to “LCC” (Reduction in Force) and that his records be corrected to show that at the time of his discharge he was not ordered to reimburse the United States Government. Lastly, he requests that the negative credit reporting information made by the Defense Finance and Accounting Service (DFAS) or any other agencies be removed and the amounts collected by the Department of Treasury be returned to him upon Board decision. The applicant also provides character references, force management slides and Air Force Instruction 36-112, Line Officer Initial Skill Training Reclassification Procedures. 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. We took notice of the applicant’s complete submission in judging the merits of the case, to include his rebuttal response; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPR) and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 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 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-2014-05130 in Executive Session on 13 Aug 15, under the provisions of AFI 36-2603: The following documentary evidence pertaining AFBCMR Docket Number BC-2014-05130 was considered: Exhibit A. DD Form 149, dated 15 Dec 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSIP, dated 5 Feb 15. Exhibit D. Memorandum, AFPC/JA, dated 16 Apr 15. Exhibit E. Letter, SAF/MRBR, dated 1 Jul 15. Exhibit F. Letter, Counsel, 17 Jul 15. 1 2