RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-03754

XXXX X. XXXX	COUNSEL: YES	

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.	His 1 Nov 16 discharge be declared void.

2.	The United States Air Force Academy (USAFA) accession standards in section A2.5.3, AFI 44-17, Human Immunodeficiency Virus (HIV) Program be waived.

3.	His active duty commission as a second lieutenant be reinstated (outside the Board’s authority).

4.	An exception to policy (ETP) be granted to allow his commissioning pursuant DoDI 6485.01, Human Immunodeficiency Virus (HIV) in Military Service Members (outside the Board’s authority).

5.	Find DoDI 1332.45, Retention Determinations for Non-Deployable Service Members, inapplicable or waive this requirement (outside the Board’s authority).

6.	He be issued an order assigning him to an appropriate officer position.

APPLICANT’S CONTENTIONS

He enlisted in the Air Force on 13 Jan 09 for six years and subsequently secured an appointment to the USAFA.  While at the USAFA as a cadet (28 Jun 12 – 12 Jan 15), he was in enlisted status on active duty.  On 28 Feb 14, he was diagnosed with HIV.  He was evaluated and found fit for duty receiving a waiver for his HIV diagnosis.  On 2 Jun 16, he graduated from the USAFA, took the officer’s oath, and received his commissioning certificate.  Additionally, he was issued orders assigning him as a contracting officer.  However, his commission was subsequently revoked and on 1 Nov 16, was discharged.  

He suffered from an error and, in the alternative, an injustice.  He suffered an error because his discharge violated: 1) DoDI 1332.18, Disability Evaluation System, 2) AFI 36-3504, Disenrollment of United States Air Force Academy Cadets, 3) DoDI 6130.03, Medical Standards for Appointment, Enlistment, or Induction in the Military Services, and 4) DoDI 6485.01, Human Immunodeficiency Virus (HIV) in Military Service Members.  Furthermore, his case was improperly reviewed by CSAF instead of USD (P&R).

On 25 Sep 15, he submitted a waiver request of AFI 44-178, section A2.5.3, to allow him to graduate and an (ETP) request of DoDI 6485.01 to allow him to commission.  The USAFA surgeon general (USAFA/SG), the sole individual granted authority to waive medical conditions from the Secretary of the Air Force (SecAF), supported a medical waiver for commissioning.  On 4 Dec 15, the USAFA Superintendent sent a letter to the Under Secretary of Defense for Personnel and Readiness (USD (P&R)) stating the applicant’s entire chain of command fully supported his ETP.

On 18 Jul 16, the Air Force Chief of Staff office began reviewing the ETP after a delay.  On 28 Sep 16, the SecAF disapproved his ETP request, thereby initiating his discharge.  His ETP request was not properly considered by the USD (P&R) and he would have been retained under the retention standards for service members with HIV in accordance with DoDI 6485.01.  Accession standards preclude individuals living with HIV from appointment, enlistment, or induction into the military, whereas retention standards permit enlisted and commissioned officers with a HIV diagnosis to remain on active duty as long as they remain medically fit.  Throughout the applicant’s ETP processing, the USAFA staff demonstrated general confusion about the applicable standard.    

Additionally, he suffered an “injustice” because: 1) he was returned to duty by four IRILOs and was ready, willing, and able to perform his duties an officer in the Air Force; 2) he was led to believe he would be commissioned after his HIV diagnosis by Air Force officials; and, 3) he was not afforded his due process rights to undergo DES processing.

His separation is an injustice because it is based solely on an outdated understanding of HIV and not the judgment of military medical professionals.  He further suffered an injustice because he relied on the Air Force’s repeated representations he would be commissioned and retained.  

The Department of Defense (DoD) has already agreed he should have been processed though the disability evaluation system (DES).  While he does not agree he was medically unfit, he was entitled to DES processing.  Had he received DES processing, he would have received a return to duty determination and/or a medical waiver for his HIV diagnosis since he was found medically fit to serve four separate times and would have never been referred to the Physical Evaluation Board (PEB).  Furthermore, he decided not to re-enlist, which would have ensured an evaluation pursuant to retention standards. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged Air Force senior airman and cadet.

On 13 Jan 09, the applicant enlisted in the Air Force with a six year term of enlistment.

On 28 Jun 12, the applicant transitioned from enlisted status to cadet status for the purpose of attending the USAFA.

On 28 Feb 14, applicant was diagnosed with HIV.

On 30 May 14, the Deployment Availability Working Group (DAWG) recommended the applicant return to duty.   

On 12 Jan 15, the applicant completed his term of enlistment after a total of six years active and inactive service and entered cadet status.  

On 25 Sep 15, the applicant requested a waiver to allow him to graduate and an exception to policy (ETP) to allow him to commission.  

On 4 Dec 15, the USAFA superintendent approved his waiver to graduate and recommended an ETP from USD (P&R).

In Jun 16, applicant graduated from the USAFA.

On 28 Sep 16, the SecAF disapproved the applicant’s ETP request.  

On 1 Nov 16, the applicant was honorably discharged as an Air Force cadet and credited with 7 years, 9 months, and 19 days combined active and inactive service.

On 28 Aug 18, the applicant filed suit against the DoD, Air Force, and others in the United States District Court for the District of Maryland.     

On 28 Dec 18, the Court granted the joint motion to stay further proceedings until 3 Jun 19 to allow DES processing or its equivalent and, if appropriate, further proceedings before the Air Force Board for the Correction of Military Records.

On 28 Oct 19, the District Court lifted the stay.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C, D and E.

APPLICABLE AUTHORITY

AFI 36-2019, Appointment to the United States Air Force Academy, para 3.3.2.  Cadets who enter the Air Force Academy from the regular or reserve component of the Air Force or as an enlisted member of the armed forces may not terminate any period of remaining obligated service because of the acceptance of that appointment. If such cadets fail to complete the Academy course of instruction, or are separated from service as cadets for any reason other than appointment as a commissioned officer or because of a physical disability, they will revert to enlisted status to serve any prior service obligation under 10 U.S.C. 516.  However, all service as a cadet is counted toward fulfillment of the remaining period of obligated service.

An extract of AFI 36-2019 is at Exhibit B.  

AIR FORCE EVALUATION

AFPC/DPFDD recommends granting the applicant a medical discharge with severance pay.  Had he been processed through the DES, he would have been found unfit for continued service for failing to meet accession standards and would have been recommended for a medical discharge with severance pay with a disability rating of 0% in accordance with VASRD Code 6351. 

On 2 Jun 14, the Medical Standards Branch determined that his case didn’t warrant entry into the DES, and the Medical Standards Branch subsequently returned him to duty with an Assignment Limitation Code (ALC-2).  This determination was in accordance with policy at that time for Air Force personnel already serving on active duty.  His case was reviewed again by the Medical Standards Branch on 28 Jul 15 and 14 Sep 16.  In both instances, he was returned to duty with an ALC-2.  Although he was returned to duty multiple times, per DoD 6130.3, Medical Standards for Appointment, Enlistment, or Induction Into the Military Services, he was disqualified from accessing onto active duty upon graduation.  As a result, he was separated from the USAFA without undergoing DES processing.  This appears to have been contrary to the provisions of AFI 48-123, Medical Examinations and Standards, which states:

5.2.1.1. USAFA Cadets’ retention standards for continued training at the Academy are the accession medical standards IAW DoDI 6130.03.  If a USAFA Cadet has their accession medical standard waived, retention medical standards apply for that condition IAW 48-123 Chapter 5 and the Medical Standards Directory.  If the Cadet does not meet accession standards and they are not waived, then Cadet is subject to DES processing in accordance with 10 U.S.C. § 1217 and AFI 36-3212.

Based on the above, he should have undergone processing through the DES for his HIV diagnosis versus being administratively separated for failing to meet accession standards.

The complete advisory opinion is at Exhibit C.

USAFA/JA recommends granting the applicant’s request for commissioning.  Ultimately, the USAFA Superintendent recommended the applicant’s ETP/waiver package for his commission be granted and that the package be forwarded to USD (P&R) for action.  The USAFA was not in the position to make any final determinations, only to make a recommendation and the USAFA recommendation was consistent with the relief the applicant is seeking.  

The complete advisory opinion, with attachments, is at Exhibit D.

SAF/MRM does not make a recommendation; however, opines the applicant’s contentions that his request was incorrectly routed and proper approval authority are without merit.

In this case, the applicant was required to meet accession standards after graduation and prior to commissioning. Since he was HIV positive, he did not meet the Air Force standard for accession and he was ineligible to seek a waiver.  The applicant decided to seek an ETP regarding the accessions requirements set out in DoDI 6485.01.  However, in order to seek an ETP from the DoDI requirements he had to first obtain an ETP to the AF policy set out in AFI 44-178.

SAF/MRM staffed the package through the normal staffing process. The package provided SecAF with basically two options: 1) grant the ETP to AFI 44-178 and forward the package to OSD for final determination on the DoDI ETP; or 2) deny the ETP to AFI 44-178.  The package was routed through several offices for review and coordination, to include the Chief of Staff (CSAF). However, it is clear from the staff summary sheet, that on 27 Sep 16, CSAF reviewed the package and provided his recommendation.  The package was then provided to SecAF, who reviewed the package and considered all the recommendation and then denied the ETP on 28 Sep 16.  When the SecAF denied the ETP, there was no requirement to forward the package to OSD.

The applicant also contends the package should never have been sent to SecAF because she had delegated her authority to USAFA/SG.  SecAF has delegated authority to USAFA/SG to waive some accession standards; however, this does not apply to HIV positive individuals.  The Air Force specifically prohibited granting waivers regarding HIV positive individuals as indicated in AFI 44-178.

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 30 Mar 20 and on 24 Apr 20 for comment (Exhibit F), and the applicant replied on 22 May 20.  In the response, the applicant through counsel contends the advisory opinions do not address any of the arguments submitted other than to point out that Air Force Instructions single out HIV from a host of other disqualifying medical conditions that may be waived for purposes of accession.  They offer no medical or case-specific support for the Air Force’s decision to ignore the recommendations of his treating physicians and refuse his request for a waiver and/or exception to policy.  The Air Force’s failure to give him due consideration based on his circumstances and condition resulted in an error and/or injustice that should be corrected by the AFBCMR.  

The Air Force applies different standards for commissioning USAFA cadets living with HIV upon graduation from their respective military academies, notwithstanding their active duty status while serving at the academies.  The Air Force instruction directs to “Separate Air Force Academy cadets ... from the Academy” upon “serologic evidence of HIV infection.”  AFI 48-123, which governs “Medical Examinations and Standards” for members of the Air Force, provides that the USAFA/SG is authorized to grant a waiver and commission Air Force cadets with disqualifying medical conditions.  The instruction identifies the waiver authority for Initial Commission[ing] of USAFA cadets is the USAFA/SG.  However, AFI 44-178 singles out HIV from a host of other disqualifying conditions, stating that [w]aiver for HIV infection is not authorized.”

The advisory opinions submitted to the AFBCMR do not dispute the facts surrounding the advanced state of HIV medicine.  The remarkable medical advances that have made HIV a chronic, treatable condition have been widely recognized, including by courts evaluating expert evidence and testimony since this application was submitted.  Today, HIV is a chronic, manageable condition, not a terminal diagnosis. Despite tremendous breakthroughs in the treatment and prevention of HIV, however, people living with HIV continue to be subjected to stigma, ostracism, and discrimination rooted in misconceptions, fear, and ignorance that is deeply rooted in the psyches of some in our society.

Additionally, his ETP application was intercepted by the Air Force Chief of Staff, who is not even in his line of authority. His ETP request was summarily denied without consideration by the Undersecretary on the basis of his HIV status alone (which the Air Force advisory opinions do not dispute), despite acknowledgement that the Undersecretary was the authority to grant an ETP.  The administrative record gives no indication his individual circumstances were given due consideration.  

The advisory opinions submitted to the AFBCMR also do not dispute that he faced an injustice because he relied on the Air Force’s representations and assertions that he would be commissioned and retained in the Air Force.  The Air Force did not inform him of any medical-based jeopardy to his ability to commission until well after he took a commitment oath and began his third year at the USAFA, which also informed his decision not to re-enlist, which would have ensured that he was evaluated pursuant to retention standards after his HIV diagnosis.

The record shows that his unique situation was not clearly understood by the Air Force officers handling his case, and they failed to properly apply the relevant military regulations or give his circumstances due consideration. To correct the errors and injustices suffered, the AFBCMR should void his discharge and direct that the Secretary of the Air Force reinstate his active duty commission as a Second Lieutenant in the Air Force.  

The applicant’s complete response is at Exhibit G.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DPFDD and finds a preponderance of the evidence substantiates the applicant’s contentions in part.  Specifically, the applicant has provided sufficient evidence from the court the applicant should have been process through the DES.  

4.  With respect to the applicant’s request for an Air Force officer commission, while the Board notes the recommendation of the USAFA/JA, the Board finds the evidence presented did not demonstrate an error or injustice.  In this regard, the USAFA/JA recommendation is consistent with their original ETP commissioning position; however, the Board further notes that the USAFA was not in the position to make a final determination.  While the Board notes counsel’s argument in both the original application and the rebuttal regarding the medical advances in HIV treatment, the Board reminds counsel and the applicant that their request to grant an ETP and waiving or finding the DoDI requirement inapplicable are outside the SecAF’s authority.  

5.  In regard to the contention the ETP was improperly routed/coordinated, the Board agrees with the SAF/MRM opinion that his ETP was properly coordinated and well within the SecAF’s authority to deny the Air Force Instruction ETP at her level.  By doing so, there was no requirement to forward the package to OSD for a DoD-level ETP.  

6.  With regard to the applicant’s contention he should have met retention standards for continued service as a commissioned officer, the Board reviewed the applicable authority and the offices of primary responsibility opinions.  The Board notes the applicant enter the USAFA as an enlisted member from the regular Air Force.  In this regard, the applicable authority states if prior-enlisted cadets fail to complete the USAFA course of instruction, or are separated from service as cadets for any reason other than appointment as a commissioned officer or because of a physical disability, they will revert to enlisted status to serve any prior service obligation under 10 U.S.C. 516.  In the applicant’s case, the Board finds he completed his required enlisted service obligation, was properly retained as a cadet awaiting his ETP resolution, but discharged for a reason other than appointment or commissioning.  In this regard, since he no longer had a service obligation to be retained as enlisted member nor did he meet appointment or commissioning standards as an officer without an approved ETP, the Board finds he should have been discharged because of physical disability.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

7.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show:

a.	On 31 October 2016, he was found unfit to perform duties of his office, rank, grade or rating by reason of physical disability incurred while entitled to receive basic pay; that the diagnosis in his case is Human Immunodeficiency Virus (HIV), a condition which is rated as a compensable percentage of 0 percent under VASRD code 6351; the degree of impairment was permanent; the disability was not due to intentional misconduct or willful neglect; the disability was not incurred during a period of unauthorized absence; and the disability was not a direct result of armed conflict or caused by an instrumentality of war and was not combat-related.

b.	On 1 November 2016, he was Discharged With Severance Pay (DWSP) from active duty with a compensable percentage for physical disability of 0 percent.

However, regarding the remainder of the applicant’s request, the Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2019-03754 in Executive Session on 3 Jun 20:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 16 Jun 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDD, dated 5 Sep 19.
Exhibit D:	Advisory opinion, USAFA/JA, w/atchs, dated 8 Jan 20.
Exhibit E:	Advisory opinion, SAF/MRM, 26 Mar 20.
Exhibit F:	Notification of advisory, SAF/MRBC to applicant, dated 30 Mar 20.
Exhibit G:	Applicant’s response, dated 22 May 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.