RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-04086
		INDEX CODE:  110.03
		COUNSEL:  XXXXXXXXXX
		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1. She be reinstated into the United States Air Force Academy (USAFA), she be permitted to finish her last semester at the USAFA, and receive her commission.

2. The negative recommendation to permit her to enroll in AFROTC and fulfill her service commitment by receiving her commission via AFROTC be reversed.

3. In the alternative the recoupment order be vacated and she be permitted to discharge her obligation by serving on active duty.

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APPLICANT CONTENDS THAT:

Her disenrollment from the USAFA was arbitrary, capricious and unjust.  It is clear that her record as a whole did not justify disenrollment.  The bare allegations of misconduct and unfitness to be an officer are not supported by actual facts in the record, and therefore, the conclusions of the Military Review Committee (MRC) were arbitrary and capricious.  Consequently, it was unjust and a denial of administrative due process for the Secretary of the Air Force to endorse the MRC's findings and order her disenrollment.

It is unjust to require her to pay recoupment, and she should be given the opportunity to discharge her obligation by serving on active duty.  On 5 May 2006, she was ordered to reimburse the United States in the amount of $139,183 for the cost of her education pursuant to 10 USC Section 2005.  It was unjust to disenroll her from the USAFA and thus prevent her from fulfilling her active duty service commitment.  None of the alleged "misconduct" could in any way disqualify her for enlisted service.  She has no criminal record, none of her alleged defalcations even amount to allegations of criminal, immoral or dishonest conduct, and would not require a waiver to enlist.  Recently, the military has had to resort to giving convicted felons waivers in order to meet enlistment quotas.  Therefore, it defies logic that the Air Force would be willing to ignore a ready, willing and able resource such as her.  She stands ready to discharge her active duty service obligation with enlisted service in lieu of repaying the cost of her education.

In support of her request, the applicant provided a personal statement and documentation associated with her disenrollment from the USAFA.

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

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STATEMENT OF FACTS:

On 27 June 2002, the applicant entered the USAFA.  

On 4 October 2005, the applicant was notified that in accordance with AFI 36-2020, Disenrollment of United States Air Force Academy Cadets, that 34 TRW/CC (Commandant of Cadets) had begun action to discharge her from cadet status.  

On 17 October 2005 a hearing was held in accordance with AFI 36-2020, to consider the applicant's record for military misconduct.  The applicant had received eight administrative actions during her three years at the USAFA, including a Letter of Counseling (LOC) for exceeding Academy limits; a Letter of Admonition (LOA) for the unauthorized use of Hap's bar; a Memorandum For Record (MFR) for being late to a mandatory formation; an MFR documenting a meeting involving the applicant and XXXXXXXXXXXXXXXXXX, CS-10/AMT; a Letter of Reprimand (LOR) for wearing inappropriate clothing while counseling a fourth-classman; an LOA for improperly utilizing the chain of command; an MFR for continued disrespect toward XXXXXXXXXXXXXXXXXX, and an LOA for insubordinate conduct towards a noncommissioned officer.  After the MRC, the applicant also received two additional administrative actions: an LOC for dereliction of duty for violating the Cadet Sight Picture and an LOA for violating the Cadet Sight Picture by wearing civilian clothing in the squadron area.  

The applicant was provided with the opportunity to respond to both of these actions.  She responded to the LOA by letter dated 1 December 2005.  The applicant was present for and participated fully at the MRC hearing.  The members of the MRC recommended the applicant be disenrolled.  Both the Commandant and Superintendent concurred and recommended to the Secretary that the applicant be disenrolled and ordered to reimburse the government for the cost of her academy education.  The applicant disagreed with the recommendation of the superintendent and appealed the recommendation.  In her appeal, the applicant also requested an "educational delay" to allow her to obtain her commission through AFROTC.  

On 6 June 2006, the Secretary concurred with the Superintendent's recommendation, denied the educational delay, and ordered the applicant to reimburse the government for the cost of her academy education.

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AIR FORCE EVALUATION:

HQ USAFA/JA recommends denial.  JA states the applicant had been disciplined for numerous disciplinary infractions.  The decision of the members of the MRC is clearly set forth in paragraph 10 of the Executive Summary of the MRC.  The members were appalled by the applicant's lack of understanding of the chain of command, her use of the chain of command for her own gain, and her open hostility toward authority.  She had been the recipient of numerous counselings and probations, but never seemed to "get it."  She often improved her behavior toward others, only to regress into her previous behavior within a short time.  The decision of the MRC was based upon the applicant's entire cadet record.  The members noted that they believed the applicant would not benefit from any additional rehabilitative efforts.  The record of the MRC indicates that the decision of the MRC was neither arbitrary nor capricious.

The Superintendent's decision to recommend that the applicant monetarily reimburse the government for the costs of her Academy education, rather than the preferred method of requiring a disenrolled cadet to serve a specified period of time in an active-duty enlisted status, is based on all of the facts and circumstances available to him at the time he forwarded his recommendation to the Secretary.  In this case, the applicant's behavior that resulted in her disenrollment was determined to be "misconduct."  The Superintendent considered the nature of the misconduct (disrespect toward a noncommissioned officer, for example) and determined that he would not force the applicant's problems that were already addressed by the Academy upon the Air Force by essentially transferring the problem to the enlisted side of the house.  The essence of the Superintendent's decision was that the applicant lacked the aptitude to serve successfully in the Air Force.  The Secretary agreed with the Superintendent.

This case has already been processed through the Secretary of the Air Force.  The Secretary denied the applicant's request for an educational delay and ordered that the applicant monetarily reimburse the government for the costs of the applicant's Academy education.  The Academy is unable to provide any relief with regard to the applicant's request to be reinstated and allowed to finish her degree and be commissioned, or the applicant's request to be allowed to repay the cost of her academy education by serving on active duty in an enlisted capacity for a three year period.  Only the Secretary may provide the relief requested.  The applicant was afforded all appropriate due process rights throughout the consideration of her case.  The findings and recommendations of the members of the MRC were supported by the evidence presented.

The complete JA evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the evaluation and states the advisory fails to address the standard of review by the AFBCMR and the statutory purpose of the AFBCMR when it dismissively concludes that her petition should be denied because she was already given all the due process required by regulation and the Secretary of the Air Force.  The statutory purpose of the AFBCMR is to give current and former service members the ability to petition the Secretary of the Air Force to correct injustices and have his or her petition reviewed by an independent panel (the AFBCMR).  The AFBCMR is authorized to reverse any adverse personnel decision that is unjust.  Therefore, even though the USAFA might be able to conclude that her disenrollment did not violate Air Force regulations, the AFBCMR may override the previous decision to disenroll if the disenrollment is unjust.  The advisory completely ignores this fact and does not address her argument that her disenrollment was unjust, or in the alternative, denial of her request to discharge her educational obligation through enlistment service rather than recoupment was unjust.

The applicant's complete response is at Exhibit E.

On 30 May 2008, the applicant was provided a copy of the SAF/MRBP Memorandum dated 5 June 2006 pertaining to her case and was provided 30 days to provide additional comment, if desired.  As of this date, no response has been received by this office.

On 15 August 2008, counsel for the applicant was provided a copy of the SAF/MRBP Memorandum dated 5 June 2006 pertaining to her case and was provided 30 days to provide additional comment, if desired.  As of this date, no response has been received by this office.

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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 an error or injustice.  After carefully reviewing the applicant’s submission and the available evidence of record, we find no evidence of error or injustice with respect to her disenrollment action or the determination that she should not be allowed to serve on active duty.  In this regard, it appears that responsible officials applied appropriate standards in the conduct of the Military Review Council (MRC) proceedings and 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.  Accordingly, 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 she has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of an error or injustice; the application was denied without a personal appearance; and 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-2007-04086 in Executive Session on 24 July 2008 and 16 September 2008, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 7 October 2007, w/atchs.
   Exhibit B.  Applicant’s Master Personnel Record.
   Exhibit C.  Letter, USAFA/JA, dated 15 January 2008.
   Exhibit D.  Letter, SAF/MRBR, dated 1 February 2008.
   Exhibit E.  Letter, Counsel, dated 1 March 2008.
   Exhibit F.  Letter, SAF/MRBC, dated 30 May 2008.
   Exhibit G.  Letter, SAF/MRBC, dated 15 August 2008.