RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2005-00215
		INDEX CODE:  104.00
		COUNSEL:  
		HEARING DESIRED:  YES

	MANDATORY CASE COMPLETION DATE:  18 JUL 06

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APPLICANT REQUESTS THAT:

He be returned to cadet status.

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APPLICANT CONTENDS THAT:

He was accused of cheating on several Computer Science programs and on a homework assignment.  The Wing Honor Board (WHB) found him in violation of the Wing Honor Code and probation was recommended by the chairman.  The Commandant recommended disenrollment and the Superintendent ordered disenrollment.  The record of the WHB clearly establishes that he was denied due process rights.  He was denied a fair review of the WHB's findings.  During the hearing, Mr. R--- testified as an expert witness offering evidence as to how the applicant could have mistakenly forwarded the wrong information to his instructor.  However, the transcript contains no information as to the substance of Mr. R---'s CD presentation and there is no evidence that the material in the CD was ever seen by the reviewing authority.  When the file was obtained from the Academy Staff Judge Advocate Office, it did not include a copy of the CD.  Further, there is the absence of any reference to the CD in the legal review submitted to the superintendent.  The record of the WHB forwarded for review includes not only the verbatim transcript, but copies of the various homework assignments allegedly copied, but does not include evidence introduced by the applicant.  

At the beginning of Mr. R---'s testimony all witnesses were instructed to leave the room.  Yet when Mr. R--- testified, Dr. C---, the applicant's accuser, was asked to remain to make comments on Mr. R---'s testimony.  That was unfair as Mr. R--- was not invited to hear Dr. C---'s testimony so he could comment on it.  Throughout Dr. C---'s testimony, he repeatedly sought to have the WHB consider uncharged offenses.  This was all done in the presence of the legal advisor, whose failure to intervene prevented a fair hearing.  Testimony before the WHB is not under oath and it is assumed that sworn testimony may be based on the belief that all cadets live under the honor code.  But in this case it turned on the unsworn testimony of a non-cadet witness.  While the rules of evidence may be relaxed in a proceeding such as the WHB, they cannot be so relaxed as to disregard due process and fundamental rights.  The failure of the applicant's legal advisor to intervene not only prevented a fair hearing but also provided strong argument for the necessary presence of counsel during WHB hearings.  

In support of his request, applicant provided his counsel's brief and his disenrollment case file.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant entered the United States Air Force Academy (USAFA) on 26 Jun 03 in the Class of 2007.  A WHB convened on 27 May 04 to consider whether the applicant cheated by copying portions of one or more other cadets' Comp Sci 110 PEX 1, 2, and 3 programs and using them as his own; and by copying portions of one or more cadets' Comp Sci Homework 5 and using them as his own.  The WHB found him in violation of the Honor Code on all four allegations of cheating.  The WHB voted 7 to 1 to recommend probation based on the fact he had less than a year under the code and seemed genuinely ashamed of the mistake.  In a legal review of the case file, the USAFA Staff Judge Advocate found the case legally sufficient and recommended disenrollment.  The Commandant recommended disenrollment and on 26 Aug 04, the USAFA Superintendent directed he be disenrolled.  He was disenrolled on that date.

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AIR FORCE EVALUATION:

USAFA/JA recommends denial.  JA states the case was found legally and factually sufficient.  The transcript of the WHB does reference the CD presentation shown to the WHB members.  The fact that the CD was not attached to the file that was reviewed for legal sufficiency does not make the decision in the case invalid.  Counsel's assertion that the transcript contains no information as to the substance of Mr. R--'s CD presentation is factually incorrect.  The Superintendent, had Dr. R---'s testimony explaining the CD as it was contained in the transcript, but just did not have the CD itself.  Most importantly, the eight WHB voting members that found the applicant in violation of the Code, saw Mr. R---'s presentation.  

The Board Legal Advisor provided a memorandum explaining the decision she made as they relate to several of the applicant's complaints.  She noted that to the best of her knowledge Dr. C--- and Mr. R--- were both permitted to remain in the room to hear the other's testimony.  Reciprocity was given to both experts.  Both also made subjective comments on the record in the nature of what they believed the evidence showed.  Experts are permitted to give their expert opinion on the relevant evidence.  While Military Rules of Evidence (M.R.E.) do not apply to WHB proceedings, the accepted and fair practice of expert witnesses giving opinion on the ultimate issue is found in M.R.E. 702 & 704.  She allowed the testimony of uncharged offenses because the allegations presume that others were involved, either in supplying their programs or allowing the applicant to copy them.  Thus, it was absolutely necessary for Dr. C--- to introduce policy on collaborating.  The reason cadets are not entitled to counsel at WHB's is addressed in the Air Force Cadet Wing Honor Code Reference Handbook.  The applicant was afforded the right to counsel as prescribed in the handbook and any argument that this violated his right to a fair hearing is misplaced.  Cadets and witnesses are not sworn in at WHB's because of the administrative nature of the proceedings.  WHBs are not legal proceedings.  The JA evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel states JA misses the point.  The record of the hearing was not verbatim as required by the Academy's own rules.  Neither JA nor the Superintendent knew what was in Mr. R---'s presentation at the time the WHB findings were approved and still do not know.  It is JA's position that if a WHB finds a violation there is no need for a reviewing authority to see the totality of the evidence presented to the WHB.  In a recent case the Superintendent reversed a WHB finding because the Superintendent was not convinced there was sufficient evidence to sustain the WHB findings.  Mr. R--- has provided an affidavit stating that he was not present during the direct testimony of Dr. C--- and he was never given the opportunity to respond to Dr. C---'s comments.  The statement of the Board Legal Advisor reflects what is wrong with the administration of the honor system at the Academy both generally and specifically.  The applicant was charged with submitting work that was not his own.  He did not deny the submission of such material but states that the submission was inadvertent.  The result of accidentally saving and then transmitting the work of cadets who had been helping him with the assignment.  The purpose of Mr. R--'s testimony was to illustrate and explain to the WHB how such a mistake could have taken place given the "inherent symbolic nature of Raptor".  

His complete response, with attachments, 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 error or injustice.  After careful review of the applicant's submission and the circumstances surrounding the applicant's disenrollment from the United States Air Force Academy, we find no evidence of error or injustice with respect to his disenrollment action.  In this regard, the Board notes that the voting members of the WHB concluded that the applicant was in violation of all four allegations of cheating.  It appears that the responsible officials applied appropriate standards in the conduct of the WHB proceedings and disenrollment process.  We find no plausible evidence that his due process rights were violated and it is our opinion that the actions taken were conducted within the guidelines of the established procedures for the administrative proceeding.  Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  In the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered AFBCMR Docket Number BC-2005-00215 in Executive Session on 10 May 05, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 20 Dec 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, USAFA/JA, dated 18 Feb 05, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 4 Mar 05.
    Exhibit E.  Letter, Counsel, dated 28 Mar 05, w/atchs.

                                   Panel Chair