RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-01150
		INDEX NUMBER:  104.00; 128.00

		COUNSEL:  

		HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

He be reinstated to the United States Air Force Academy (USAFA) or in the alternative, his tuition indebtedness be forgiven.

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APPLICANT CONTENDS THAT:

He was disenrolled from the USAFA primarily after two of his superior officers changed previously favorable recommendations that had helped him receive probation during a disciplinary review.  

The officers changed their previously favorable recommendations based largely on the mistaken belief that the applicant had been convicted of an honor violation.

His disenrollment was primarily caused by his conviction for an honor violation by the Wing Honor Board (WHB) although his WHB conviction had been set aside due to irregularities and should not have been considered as a factor in his disenrollment.

The other issues that led to the revocation of his disciplinary probation, driving a motor vehicle, allegedly in violation of his probation, and several grooming/military appearance problems, do not bear scrutiny.

In support of his request, applicant’s counsel submits an eight-page legal brief with thirteen attachments.

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STATEMENT OF FACTS:

The relevant facts pertaining to this application, extracted from the applicant’s military records, 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.

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AIR FORCE EVALUATION:

The USAFA Staff Judge Advocate, USAFA/JA, evaluated this application and recommends denial of the applicant’s requests.

The applicant contends that he wasn’t really disenrolled from the Academy because of his military misconduct, but so that the Academy could “cover up” irregularities in a Wing Honor Board (WHB) convened to investigate overlapping deceit allegations arising from his misconduct (a false police report).  The WHB voting procedures in his case were called into question by his defense counsel.  While the WHB was conducted according to the rules and procedures outlined in the Cadet Honor Code Reference Handbook, and in spite of compelling evidence that he committed an honor violation, his honor case was terminated due to the appearance of a voting count discrepancy.

The WHB, though conducted properly, was terminated out of abundance of caution and to ensure the appearance of fundamental fairness.  They do not believe that the termination of the WHB reflects failure of the honor system as a whole and that there is no evidence that the motive behind the Military Review Committee (MRC) was to “cover up” such alleged failure.

The applicant complains that the Academy unfairly subjected him to two disenrollment processes.  In fact, the WHB and MRC are separate and distinct procedures, which can run parallel to one another.

A review of the entire file demonstrates that the applicant had a history of not living up to Academy standards and making poor decisions.  The applicant’s cadet career record of punishment totaled an extremely high 260 demerits, 235 tours, and 10 confinements, as well as returning him to conduct probation a second time.

The applicant’s poor record was properly brought before the Sep 99 MRC for consideration, convened for his probation failure, breaking the demerit threshold and his AOC’s rating.  His AOC and former AOC testified at the MRC that the applicant was continuously unprofessional, made poor decisions, and makes excuses when caught.  His current AOC questioned his integrity, testified he was not officer material, and recommended that the applicant be disenrolled.  While the applicant’s counsel asserts the violation of probation was a mere afterthought “thrown in to try and justify the sudden change in status,” the MRC evaluated a cadet whose record was historically weak and on a steady decline.  He was unable to succeed in his probation and apparently learned little if anything from his earlier experience on conduct and aptitude probation.

The complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel responded to the evaluation.  He addressed the issue of the WHB and how problems with the process contributed to the applicant’s disenrollment from the Academy.  

Counsel notes that USAFA/JA goes back over the applicant’s entire cadetship (almost three and a half years) and cites several offenses, including an underage drinking incident his first year at the Academy and an alleged driving under the influence (DUI) later on.  He indicates that the applicant was neither convicted nor charged with DUI.  He was fined for stream littering and filing a false police report.  Counsel again notes that USAFA/JA points to applicant’s 260 demerits but neglects to point out that about 220 were related to two alcohol related incidents and that getting only 40 demerits otherwise in three plus years is actually low.  Counsel also rebuts the other issues referenced by USAFA/JA.

Counsel indicates that even if the applicant had been in an above average amount of trouble, his discharge was fatally flawed.  The alleged honor code conviction was considered during the routine administrative discharge proceeding when it should not have been.  It is absolutely undeniable that one honor code conviction is more serious than just about any disciplinary record.  The effects of considering this improper “conviction” cannot be ignored or minimized.  Counsel points out that the applicant’s AOC switched his favorable recommendation to unfavorable based solely on his belief that the applicant had been convicted by the WHB.

The administrative discharge board wrongly considered what they believed was a valid WHB conviction.  This was major factor in the decision to separate the applicant from the Academy.  The applicant’s “conviction” was set aside and no longer exists.

Counsel’s complete response is at Exhibit E.

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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 probable error or injustice warranting his reinstatement to the United States Air Force Academy (USAFA).  It is noted that the Wing Honor Board (WHB) was terminated due to the appearance of a voting count discrepancy.  However, a Military Review Committee (MRC) convened and after reviewing applicant’s entire record found that he was unfit to serve as an officer in the Air Force.  The Superintendent, after reviewing the recommendations from the MRC, Commandant of Cadets and the Academy Board, also recommended applicant’s disenrollment.  As stated above, the WHB was terminated and it does not appear that the results of this board had any effect on the recommendations made by the MRC, Commandant of Cadets and the Academy Board.  As noted by the Staff Judge Advocate, applicant’s career record of punishment totaled an extremely high 260 demerits, 235 tours, and 10 confinements, as well as returning him to conduct probation a second time.  In view of totality of the evidence before this Board, we do not believe that applicant’s reinstatement to the USAFA is justified.  Therefore, we do not recommend favorable action on this portion of his appeal.

4.  Notwithstanding the above determination, we do believe that the indebtedness he incurred should be removed from his record.  The WHB was terminated and we cannot rule out, with certainty, whether or not the WHB results influenced the WRC recommendation.  We note that one of the applicant’s commanding officers clearly indicates in his statement that he had originally recommended the applicant for “Conduct Probation” but could no longer recommend that the applicant be commissioned or stay in the Air Force as an enlisted airman due to his violation of the Honor Code.  Therefore, to remove any possibility of an injustice to the applicant, we believe that his indebtedness incurred for his USAFA education should be removed from his record.  Therefore, we recommend his records be corrected to the extent indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that at the time of his discharge from the Air Force Academy, the Secretary of the Air Force found that under the particular circumstances of his case, his disenrollment was not due to misconduct within the meaning of Title 10, United States Code, Section 2005, and that, accordingly, no debt was established to reimburse the United States for the cost of his education at the Air Force Academy.

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The following members of the Board considered this application in Executive Session on 9 October 2001, 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 2 Apr 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, USAFA/JA, dated 24 Jul 01.
    Exhibit D.  Letter, SAF/MIBR, dated 10 Aug 01.
    Exhibit E.  Letter, Applicant’s Counsel, dated 4 Sep 01.

                                   
                                   Panel Chair

AFBCMR 01-01150

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to XXXXXXXXXXXX, be corrected to show that at the time of his discharge from the Air Force Academy, the Secretary of the Air Force found that under the particular circumstances of his case, his disenrollment was not due to misconduct within the meaning of Title 10, United States Code, Section 2005, and that, accordingly, no debt was established to reimburse the United States for the cost of his education at the Air Force Academy.

Director
Air Force Review Boards Agency