RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02626
		INDEX CODES:  A80.00, 110.03

		COUNSEL:  XXXXXX X. XXXXXX, JR.

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

Her records be corrected as follows:

1.  Her records should contain no mention of Honor charges or Honor Board proceedings against her.

2.  Her records should show she graduated with a degree in aeronautical engineering from the United States Air Force Academy (USAFA) in May 02.

3.  Her records should show she was commissioned as a second lieutenant in the Air Force on 29 May 02.

4.  She should be awarded pay as a second lieutenant for the period 29 May 02 through 28 May 04.

5.  Her records should show she was promoted to the grade of first lieutenant in the Air Force on 29 May 04, when other members of her graduating class would have received a similar promotion.

6.  She should be awarded pay as a first lieutenant from 29 May 04 through the date action is taken on this request.

7.  Her pay should be adjusted to the pay of a first lieutenant in the Air Force Reserve as of the date the Board acts on this request.

8.  Her records should show she began to fulfill her five-year commitment to the Air Force immediately after graduation so that she receives credit for the time she has spent waiting for the Air Force to correct this error.

9.  She should be reimbursed for the cost of her civilian pilot’s training, which is a benefit the Air Force would have provided if she had not been wrongfully disenrolled.

By amendment, she be granted an unequivocal release from any further commitment to the United States Air Force and given an honorable discharge, with back pay as a second lieutenant from 29 May 02 to 29 May 04, and as a first lieutenant from 29 May 04 to 19 Aug 04.  If she is not excused from further service and given an honorable discharge with back pay, she receive full pay from the date of her graduation through the date of any decision by the Board.

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APPLICANT CONTENDS THAT:

She was wrongfully denied her diploma from the USAFA and commissioning as a second lieutenant in the Air Force in May 02.  The USAFA Honor Board decision that led to her disenrollment was overturned by the Secretary of the Air Force 18 months later on 16 Dec 03.  

In support of her appeal, the applicant provided counsel’s statements, documentation pertaining to her private flight training, and other documents associated with the matter under review.

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Available documentation indicates the applicant was appointed a second lieutenant, Reserve of the Air Force, on 31 Jul 04.  The remaining relevant facts pertaining to this application are contained in the letter prepared by the Legal Advisor.  

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AIR FORCE EVALUATION:

The Legal Advisor reviewed this application and noted that on 21 May 02, a Cadet Honor Board found the applicant had violated the Honor Code by falsely stating she drew a portion of an aircraft engine, when she in fact had cut, pasted, and modified a drawing prepared by another group of cadets.  In May 02, the then-Superintendent verbally offered her a chance to stay at the Academy for six months on honor probation, an offer she declined.  The Honor Board subsequently recommended disenrollment, and on 15 Jul 02, the 34th TRW/CC concurred.  

According to the Legal Advisor, the HQ USAF/CC delayed taking action on the case pending an Inspector General (IG) investigation into allegations the then-Commandant acted improperly in this case.  On 10 Jan 03, the IG found her allegations to be unsubstantiated.  On 24 Feb 04, the USAF/CC met with the applicant and again offered her a six-month probation period instead of disenrollment.  In response, the applicant requested graduation, but not commissioning.  On 14 Apr 03, the USAF/CC advised the applicant on the conditions under which such a request could be granted.  On 23 Jun 03, the applicant stated she would accept her commission if she received back pay retroactive to May 02 (when she would have graduated), if she could serve in the Reserves or Guard while she attended graduate school, and upon completion of her advanced degree, be assigned to National Aeronautics and Space Administration (NASA) or a comparable agency.  This request (offer) was not accepted, and the disenrollment case processing was resumed.  It should be noted that all of these offers were based upon the Air Force assuming that she had violated the Honor Code; the applicant’s responses were based upon her firm conviction that she had not.

The Legal Advisor noted that on 22 Sep 03, the Secretary of the Air Force Personnel Council (SAFPC) found the Honor Board findings were not legally or procedurally correct and recommended the disenrollment action be disapproved, and the applicant’s unusual request to serve in the Reserves be granted.  On 16 Dec 03, the Secretary of the Air Force disapproved the disenrollment action and returned the applicant to the USAFA for the purpose of graduating.  He further directed she be allowed to serve her military service obligation in a Reserve component.

The Legal Advisor recommended the applicant be given most of what she has requested.  Specifically, he recommends granting her retroactive commissioning and active duty service credit, promotion and pay from May 02 until the date of the Board’s decision.  He noted the applicant has asked for approximately eight and one-half months of active duty pay past the initial notification of the Secretary’s decision (plus AFBCMR processing time).  The Legal Advisor indicated she would have received two months graduation leave, which she did not.  The remaining six months of pay credit reflects a not unreasonable request under the circumstances.  With its decision, the Board would approve her transfer to the Reserves effective with its order.  At that point, the applicant will have the responsibility to work with the Reserves to earn points or face the consequences.  She should have her military records show she is assigned to Reserve Headquarters and she and they can manage her remaining service obligation.  If she does not participate adequately, they can take what action they find appropriate for similarly-situated officers.  It has been a difficult challenge to devise an adequate remedy for an acquitted cadet who had been so near to graduation, but, in the Legal Advisor’s view, the requested remedy comes reasonably close under the circumstances.

Regarding the applicant’s request for private pilot license reimbursement, the Legal Advisor recommended denial.  Although she may have not been entitled to take flying training at government expense because she was facing disenrollment, and that disenrollment ended with an acquittal, that is unfortunate, but does not constitute an injustice.  Her decision to take private lessons to substitute for a lost opportunity is understandable, but is a personal decision.  According to the Legal Advisor, the Board’s authority to correct a military record creates entitlements (back pay, etc.) that flow from the record as corrected.  He knows of no authority to pay for what amounts to consequential damages to a private company, even if the applicant has demonstrated she would have received a similar benefit had she not faced disenrollment.  This is, however, an equitable factor that gives further support to extending her active duty service credit, as previously discussed.

Concerning her request to have the Board pass information about alleged misconduct about active duty personnel for appropriate investigation and possible disciplinary action, the Legal Advisor recommended the Board take no action.  In his view, this type of action by the Board is not appropriate.  By separate correspondence, he has suggested the applicant, or a representative, contact the commander or legal officer directly, making sure they specify on what basis they know certain personnel were involved.  According to the Legal Advisor, he has spoken to the legal office of the base to which the alleged offenders are assigned, and to date they have had no such complaints filed.

A complete copy of the Legal Advisor’s evaluation is at Exhibit B. 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel provided a response to the advisory opinion from the Legal Advisor indicating the applicant agrees with much of what the Legal Advisor recommends in his advisory.  She specifically agrees with the recommendation that her commissioning be retroactive to 29 May 02; she be promoted to first lieutenant as of 29 May 04; and, she receive active duty service credit and active duty pay commensurate with her rank from 29 May 02 through the date of her discharge.  She continues to believe the Air Force should reimburse her for the cost of flight training, but, if the Board accepts the advisory’s recommendation, she is willing to forego reimbursement for that expense.

She asks the Board to depart from the advisory with respect to the recommendation she be assigned to the Reserves.  While the appeal has been pending, and uncertain about how the Board would act, she has been getting on with her life.  She is about to graduate from the University of Wisconsin and has accepted a job at the Johnson Space Flight Center.  In addition, she continues to see and hear about offensive, obscene, and threatening comments directed at her in correspondence from and conversations with Air Force personnel.  The combination of the demands of her job and the persistent, unseemly attitude of her peers in the Air Force, has led her to ask that the Board direct she be awarded back pay, given an honorable discharge, and excused from any further obligation (monetary or otherwise) to the Air Force.

Counsel’s complete response, with attachment, is at Exhibit D.

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ADDITIONAL AIR FORCE EVALUATION:

The Legal Advisor reviewed counsel’s response to his original advisory and recommends the applicant be granted retroactive commissioning, active duty service credit, and promotion and pay from May 02 until the date of her application.  He further recommends that her records indicate she tendered her resignation effective on the date of her appeal and it was accepted, with the remaining portion of her active duty service commitment waived without recoupment.  The Legal Advisor indicated that although such waivers are unusual, they are not unprecedented, and are granted when they are in the best interests of the Air Force.  Specifically, such waivers have been granted by the Board in prior defective Academy disenrollment cases where the cadets had moved on with their lives and did not request reinstatement to the Academy or commissioning.

A complete copy of the Legal Advisor’s evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel reviewed the additional advisory opinion from the Legal Advisor and indicated the applicant concurred with his recommendations, assuming the resolution includes an honorable discharge from the Air Force on 19 Aug 04, a complete and unequivocal release from any further commitment to the Air Force, and back pay as a second lieutenant from 29 May 02 through 29 May 04, and as a first lieutenant from 29 May 04 through 19 Aug 04.  If the Board does not agree that the applicant should be excused from any further commitment to the Air Force and given an honorable discharge with back pay, she reserves the right to propose and seek other forms of relief from the Board.  So there is no confusion, she has no intention of repaying the Air Force given the treatment she has received over the past three years.  Also, if she is not excused from further service and given an honorable discharge with back pay, she should receive full pay from the date of her graduation through the date of any decision by the Board.

Counsel’s complete response is at Exhibit G.

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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.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  After a careful and thorough analysis of the facts and circumstances of this case, and the apparent concurrence of the applicant, we agree with the recommended relief proffered by the Legal Advisor.  In our view, such corrective action is not only proper and fitting relief, but appears to be in the best interests of the Air Force and the individual concerned.  Accordingly, we recommend the applicant’s records be corrected to reflect she was granted retroactive commissioning, active duty service credit, promotion and pay, and that her resignation from all appointments in the Air Force was tendered and accepted, with the remaining portion of her active duty service commitment waived without recoupment.

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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:

	a.  She graduated from the United States Air Force Academy (USAFA) and was commissioned as a second lieutenant, Reserve of the Air Force, on 29 May 02, was voluntarily ordered to extended active duty, and was ordered permanent change of station to her home of record pending further orders.

	b.  She was promoted to the grade of first lieutenant, Reserve of the Air Force, effective and with a date of rank (DOR) of 29 May 04.

	c.  On 19 Aug 04, competent authority accepted her voluntary tender of resignation from all appointments in the United States Air Force, and waived, without recoupment, her remaining active duty service commitment (ADSC) incurred as a result of her graduation from the USAFA.

	d.  She was honorably discharged from all appointments in the United States Air Force on 19 Aug 04.

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The following members of the Board considered AFBCMR Docket Number BC-2004-02626 in Executive Session on 15 Mar 05, 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, undated, w/atchs, dated 19 Aug 04.
     Exhibit B.  Letter, SAF/MRB, dated 9 Nov 04, w/atchs.
     Exhibit C.  Letter, AFBCMR, dated 9 Nov 04.
     Exhibit D.  Letter, counsel, dated 30 Dec 04, w/atch.
     Exhibit E.  Letter, SAF/MRB, dated 8 Feb 05.
     Exhibit F.  Letter, AFBCMR, dated 9 Feb 05.
     Exhibit G.  Letter, counsel, dated 2 Mar 05.

AFBCMR BC-2004-02626

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 , be corrected to show that:

		a.  She graduated from the United States Air Force Academy (USAFA) and was commissioned as a second lieutenant, Reserve of the Air Force, on 29 May 02, was voluntarily ordered to extended active duty, and was ordered permanent change of station to her home of record pending further orders.
.

		b.  She was promoted to the grade of first lieutenant, Reserve of the Air Force, effective and with a date of rank (DOR) of 29 May 04.

		c.  On 19 Aug 04, competent authority accepted her voluntary tender of resignation from all appointments in the United States Air Force, and waived, without recoupment, her remaining active duty service commitment (ADSC) incurred as a result of her graduation from the USAFA.

		d.  She was honorably discharged from all appointments in the United States Air Force on 19 Aug 04.