RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  99-00780
		INDEX CODE:  104.00

		COUNSEL:  

		HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be reinstated to the United States Air Force Academy (USAFA).

Upon reinstatement and any subsequent graduation and commissioning from the USAFA, he be awarded a date of rank of second lieutenant, effective 27 May 1998 (the same day held by his classmates), with backpay.

By amendment, he be released from his active duty service commitment to serve three years as an enlisted member of the Air Force, or, if a release from all obligations is not possible, instead of an active duty service commitment, he be allowed to pay back the value of his Air Force Academy education.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was disenrolled from the USAFA on 29 Sep 98 based upon a decision by a Cadet Honor Board that he lied.  The alleged lie was nothing more than an honest misunderstanding regarding two documents that he mistakenly believed two other cadets had signed.  He was removed from the Academy on 6 Apr 98, just weeks before his scheduled commissioning and graduation on 27 May 98.

In support of his request, counsel submits a legal brief and additional documents associated with the issues cited in his contentions.  These documents are appended at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Available records reflect that applicant entered the U. S. Air Force Academy on 30 Jun 94.

On 12 Jan 98, the applicant was notified that he was being investigated for violating the USAF Academy Honor Code as follows:  Lying by saying that C2C F--- and C3C M--- had signed covenants not to sue when, in fact, they had not; and lying by listing only two passengers on the predeparture checklist when, in fact, he knew there would be four (date of incident was 8 Nov 97).  He was advised of his rights under the Cadet Wing Honor System.  On 13 Jan 98, the applicant did not admit to violating the Honor Code and requested his case be reviewed, and if necessary, forwarded to a Wing Honor Board (WHB); he did not waive his right to consult legal counsel and did not waive his right to remain silent.

On 5 Feb 98, a Wing Honor Board (WHB) convened to consider one allegation that the applicant lied to the Aero Club safety investigator about whether or not he had two of his passengers complete the required legal forms.  The members of the WHB found the applicant in violation of the USAF Academy Honor Code on the allegation that he had obtained signed covenants not to sue.  The case was forwarded to the Commandant for review and sanctioning.

On 11 Mar 98, the applicant was notified of the recommendation for disenrollment by the commandant of cadets and the Commandant’s Honor Sanctions Options to either resign or appeal.  In accordance with AFI 36-2020 and after seeking legal counsel, applicant elected to appeal.

Following a legal review of the proposed disenrollment, on 3 Apr 98, the United States Air Force Academy (USAFA) Superintendent forwarded a recommendation to the Secretary of the Air Force (SAFPC) that applicant be separated from cadet status, granted an educational delay of one year if requested, and subsequently called to active duty for three years in enlisted status as a senior airman for completion of his Active Duty Service Commitment (ADSC).

On 29 Sep 98, the Secretary of the Air Force approved the recommendation of the United States Air Force Academy Superintendent to disenroll applicant and directed that he be honorably separated from cadet status, transferred to the Air Force Reserve and ordered to active duty for a period of three years.

The relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force.  Accordingly, there is no need to recite these facts in this Record of Proceedings.

_________________________________________________________________

AIR FORCE EVALUATION:

The Staff Judge Advocate, HQ USAFA/JA, stated that the applicant was disenrolled from the Air Force Academy on 29 Sep 98 for having violated the cadet wing honor code.  JA indicated that the procedures by which the applicant was disenrolled were conducted in accordance with all applicable Air Force and Academy regulations and all considerations of due process and fairness.

In the Fall of 1997, the applicant was scheduled to lead a number of aircraft in a flyover of a football game at the Academy.  On the paperwork he completed to take possession of the aircraft, the applicant listed himself and his co-pilot as the only two persons that would be flying in the plane.  As the applicant and his co-pilot were about to get into the plane for the flyover, two of the applicant’s friends arrived and got into the plane.  The flyover was performed without incident; however, since taking passengers who were not reported on the pre-flight documents was a violation of airfield safety policies, an official reported the incident.  The applicant had updated the preflight paperwork to reflect the two extra persons, but there were no signed “covenants not to sue.”  The applicant stated that he had the two individuals sign the covenants and that he had placed the covenants on the clipboard with his other preflight documents.  The two cadets in question stated that they did not sign covenants and that the applicant had not mentioned the covenants at all that morning.  A Wing Honor Board was convened and the Board found that the applicant had lied about the covenants.  The Academy chain of command recommended disenrollment and the Secretary of the Air Force agreed and took action in September 1998.

JA stated that in the administrative action of disenrollment, the law requires the applicant be given due process before he can be disenrolled.  JA believes that the applicant’s case record reveals ample evidence that the applicant was given more than the required minimum due process.

JA’s review of the applicant’s record reveals that there was sufficient valid evidence to support the Wing Honor Board’s (WHB) conclusion.  The evidence presented to the WHB convinced the members beyond a reasonable doubt that the applicant had lied.  The standard of proof in a WHB proceeding is just one more evidence of the efforts of the Academy to ensure that cadets are given a fair hearing.  Applicant’s submission does not provide any evidence to show undue influence or bias on the part of any member of the WHB.

JA stated that the Academy is satisfied that the applicant received more than the required due process considerations and that his expulsion from the Academy was not unduly harsh.  The applicant’s entire disenrollment process was conducted in accordance with applicable Academy and Air Force regulations.  Accordingly, JA urges the Board to deny all relief requested by the applicant.

A complete copy of this evaluation is appended at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel reviewed the advisory opinion and indicated that the numerous procedural due process violations were not addressed.  Counsel stated that even though a cadet is apprised of the charges against him and permitted a defense, the hearing must still be “fair.”  The advisory writer mentioned the fact that the applicant was apprised of the allegations against him, afforded the right to present written matters to the honor board, call witnesses before the board, offer his own testimony before the board, and had the right to seek counsel in preparation of his defense.  Having afforded the applicant these opportunities, the USAFA did not then have license to breach his [applicant’s] due process rights during the honor board and post-honor board proceedings.  By doing so, the USAFA rendered the hearing and the post-honor board proceedings un-“fair.”

Counsel’s response is appended at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The General Law Division, HQ USAF/JAG, reviewed counsel’s contention regarding procedural due process violations and also responded to the applicant’s request to be released from his Active Duty Service Commitment (ADSC) or in the alternative be allowed to pay back the value of his Air Force Academy education if not allowed to serve on active duty as an officer.

With regard to counsel’s objections to the presence of a member from the SJA’s staff attending the Academy Board meetings, JAG stated that a JA representative attends all Academy Board meetings, at the request of the Superintendent, to provide legal advice when requested.  The representative is without vote and never advocates a position on a case.  Thus, JA’s attendance at the meeting did not prejudice applicant and applicant’s concern is unfounded.

Applicant also reiterates his objections to the Academy Board raised in his 5 Jun 98 letter that the Academy Board was improperly convened and did not afford applicant the right to submit matters before it.  JAG indicated that the role of the Academy Board in cadet disenrollment cases is governed by AFI 36‑2020 and USAFAI 36-187.  The inconsistencies of the governing instructions appear to be the result of incomplete implementation of the 1994 Cadet Disenrollment Review Team (CDRT) chartered by the Secretary of the Air Force, which recommended that the Superintendent be delegated approval authority for certain cadet disenrollments with the Academy Board serving in an advisory role at the discretion of the Superintendent.  The Academy, in reliance on the CDRT recommendation, issued USAFAI 35-187, which made referral of disenrollments to the Academy Board optional.  However, AFI 36-2020 was not changed.  To the extent these two instructions are in conflict, the AFI, as the higher level issuance, governs.  AFI 36-187 provides that the Superintendent may obtain the advice of the Academy Board on all involuntary disenrollments and turnbacks of cadets.  JAG stated that the Academy appears to have applied the process described in USAFAI 36-187, believing consideration by the Academy Board to be optional rather than required, as provided for in AFI 36-2020.  Nevertheless, the Academy Board did in fact consider the case.  Its role was to make a recommendation and it did so.  The Superintendent adopted the recommendation and transmitted it, as his own, through the Air Force Personnel Board to the Secretary.  Nothing in AFI 36-2020 precludes the Superintendent from making a recommendation as to disposition of the case.

JAG stated that the applicant had several opportunities to present evidence and arguments during the initial clarification and the Honor Investigation, at the Wing Honor Board, and to the Commandant of Cadets during the sanctions consideration.  The applicant cites no authority that requires the Academy Board to give him an opportunity to submit additional evidence or argument.

JAG disagrees with the applicant’s objection to the instruction given to the honor board concerning the burden of proof.  JAG indicated that criminal case law is irrelevant to an administrative hearing that is based on regulation.  Simply because the Academy elected to use reasonable doubt as a standard, does not require that it comply with all criminal case law regarding reasonable doubt.  In JAG’s opinion, the instructions given to the Academy Board were more than sufficient for an administrative board.

With regard to the applicant’s objection to non-board members being present in the board deliberation room, JAG indicated that due process in the context of cadet disenrollment consists of a fair hearing at which the cadet is apprised of the charges against him and permitted a defense.  The Academy uses a Wing Honor Board, comprised of one officer and seven cadets, that works much like a jury.  But it is a creature of regulation, not a jury, and due process requires only that it function fairly and impartially.  Accordingly, the presence of third party observers while the Board deliberates is not “criminal” as applicant infers.  Therefore, their presence would be improper, from a legal standpoint, only if it were shown to have affected the fairness of the proceedings.  Academy practice, as set out in the handbook, is for members of the Honor Executive Committee to sit in on Wing Honor Board deliberations.  According to USAFA/JA, members of the Honor Executive Committee observe deliberations as part of their oversight responsibility.  Members of the Honor Executive Committee are present at all Wing Honor Board deliberations; applicant’s case was not exceptional in this regard.

The applicant asserts that the Secretary of the Air Force has not prescribed the disenrollment procedures as required by 10 U.S.C., Section 9348(c)(2).  JAG stated that Section 9348 contains three major provisions. Subsection(a) requires that each cadet entering the Air Force Academy sign an agreement to complete the course of instruction at the Academy, accept a commission if one is offered, and serve on active duty for five years.  Subsection (b) provides that a cadet who breaches the agreement required by subsection (a) may be transferred to the Air Force Reserve and ordered to active duty as an enlisted member.  Subsection (c) requires the Secretary to prescribe regulations containing standards and procedures for (b).  JAG indicated that Section 9348(c) does not require the Secretary to prescribe disenrollment procedures, but rather procedures for determining whether a cadet who is disenrolled is subject to active duty service.  Thus, even a complete failure by the Secretary to implement section 9348(c) would not preclude disenrollment of applicant.

With regard to the applicant’s request to pay back the value of his Academy education instead of serving on active duty as an enlisted member, JAG noted that AFI 36-202, para 4.3, states the long held policy that “[t]he Secretary of the Air Force assigns active duty as the primary means of reimbursement for education.”  JAG recommended that the Board follow this policy.

A copy of this evaluation is appended at Exhibit F

The Directorate of Personnel Program Management, HQ AFPC/DPPAES, stated that the applicant’s involuntary call to Extended Active Duty (EAD) was postponed from October 1999 until January 2000 (Exhibit G).

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel stated that even if the Board is not ready to state that the way the honor boards are currently run do not meet minimum standards of due process, certainly this particular case did when the applicant did not even have an attorney within hundreds of miles of his trial.  JAG stated that the Academy is not bound by criminal law on what constitutes “proof beyond a reasonable doubt.”  Proof beyond a reasonable doubt is a criminal law standard; you will search in vain for it to be properly defined anywhere else.  If you are going to use a criminal law standard… and the Academy has chosen to do so in this administrative process… you must either properly define it or it should be defined by its most common use (which is in criminal law cases).  Counsel understands the utility of having certain people sit in and observe these deliberations in order to improve future operations of the honor system.  Counsel’s objection is that these people can improperly influence the jurors, intentionally or even unknowingly.  Mention has previously been made about the appearance of bias against the applicant by the officer who oversees the Honor Board, Colonel H---.  Counsel has recently come into possession of statements from three cadets that voted in another board (defendant convicted by the minimum 6-2 vote).  When these cadets compared their votes later on, they discovered that they had each voted for acquittal.  They went to the officer who oversees the Honor Board and reported the miscount and he refused to believe these cadets and refused to correct the error ‑ this is clearly unconscionable behavior by the senior officer.

Counsel stated that if a cadet is going to have to represent himself in disenrollment proceedings, he should have clear written guidance.  The disenrollment procedures in this case do not meet that standard.  Counsel would like to add that while the Secretary has tremendous authority in these areas, he also has tremendous flexibility.  On over a hundred occasions over the past decade the Secretary has allowed cadets to forego their service commitment.  Under the circumstances of this case, especially the lack of due process accorded the applicant, this would appear to be the least that can be done.  Ironically, the applicant completed his degree at Embry-Riddle University and is currently teaching Air Force Academy cadets how to fly!  This job undoubtedly contributes more to the Air Force mission than having him fill an enlisted nonflying slot merely for the purpose of checking the block for service commitment.  If the purpose of forcing him on active duty as an enlisted person is to further punish (or perhaps humble?) him, this is neither necessary nor appropriate.  This is not a case of someone trying to get something for nothing; the applicant has offered to pay back the taxpayers from the money he is currently earning as a flight instructor.

The applicant is a young man who deserved to be given a fair chance to defend his honor; he was not.  If the Board decides that it is best for all parties for him not to return to the Academy, then counsel asks (based on the facts of this case) that the Board recommend that the applicant be given a clean separation and enabled to go on with his life without crippling debts.  Counsel requests that before the Board makes their final decision, that the Board members read the 23 Feb 99 letter from Capt Deborah Curtis, Military Cadet Counsel at the Academy, about the problems with the current honor system there.  When you combine this with the flaws unique to the applicant’s case, it should convince the Board that the applicant deserves that second change.

Counsel’s complete response is appended at Exhibit I.

_________________________________________________________________

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 probable injustice warranting some relief.  The applicant was disenrolled from the United States Air Force Academy for having violated the cadet wing honor code.  Due to the applicant’s disenrollment from the United States Air Force Academy, he incurred a three-year Active Duty Service Commitment (ADSC) as an enlisted member.  We note that the applicant was aware that he would either be required to repay the government for the cost of his education or incur an ADSC.

4.  With respect to the disenrollment action, after reviewing the circumstances surrounding the applicant’s dismissal from the Academy and the documentation submitted in support of his appeal, we find no error or injustice concerning the disenrollment action.  It appears that responsible officials applied appropriate standards in the applicant’s disenrollment process, and we do not find persuasive evidence that pertinent regulations were violated or that the applicant was not afforded all the rights to which entitled at the time of disenrollment.

5.  Notwithstanding the above, in view of the circumstances leading to the applicant’s disenrollment and the fact that the end result was his failure to obtain a much-desired Air Force commission, we believe ordering the applicant to active duty as an enlisted member of the Air Force would be excessively harsh.  Based on the evidence presented in this case, we believe it would be proper and fitting to reverse the determination that the applicant should serve on active duty for three years.  In addition, we note that the applicant has subsequently completed his degree and is currently a civilian flight instructor.  Hence, it appears his education and skills would best be utilized in the civilian sector training pilots.  However, we do not believe the evidence supports a decision that the applicant should be treated differently than other cadets who are disenrolled after their third year at the Academy and who do not perform the requisite active duty service in enlisted status. Rather, we believe the appropriate course of action in this case would be to allow the applicant to reimburse the United States for the cost of his Air Force Academy education instead of requiring that he perform three years of active duty service, and we do so recommend.

6.  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.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that the Secretary of the Air Force determined that he not be ordered to active duty, but instead reimburse the United States Government for the cost of his education in accordance with Section 2005 of Title 10, United States Code.  This approval does not excuse any other indebtedness to the United States Government.
_________________________________________________________________

The following members of the Board considered this application in Executive Session on 2 December 1999, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 15 Mar 99, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ USAFA/JA, dated 29 Apr 99.
   Exhibit D.  Letter, SAF/MIBR, dated 1 Jun 99.
   Exhibit E.  Letter from counsel, dated 2 Aug 99, w/atchs.
   Exhibit F.  Letter, HQ USAF/JAG, dated 10 Sep 99.
   Exhibit G.  Letter, HQ AFPC/DPPAES, dated 23 Sep 99.
   Exhibit H.  Letters, AFBCMR, dated 16 Sep 99 and 30 Sep 99.
   Exhibit I.  Letters from counsel, dated 5 Nov 99 and
               15 Nov 99, w/atchs.