RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER:	BC-2008-01699 INDEX CODE:	104.02

COUNSEL:	YES HEARING DESIRED: YES

APPLICANT REQUESTS THAT:
His records be corrected to show he graduated from the Air Force Academy (AFA) and received his commission on 1 Jun 2005; or, in the alternative, he be allowed to cross train into the Pararescue or Combat Controller career field.

APPLICANT CONTENDS THAT:
On 29 May 2005, he was charged with theft of merchandise from a local department store. He had entered the store with the intention of buying a new shirt. He selected two shirts and planned to try one of them on. He found he could not as the shirt had an ink sensor on it. It was late that evening and he could not find a store employee to assist him. He attempted to try the shirt on with the sensor on it to determine a proper fit but was unsuccessful because of the sensor. After again searching for but not finding a store employee to assist him, he attempted to remove the sensor himself with a removal device he found at a nearby wrapping station. He was unfamiliar with how to use the sensor removal device; it broke and damaged the shirt with ink. He panicked, again searched for an employee, and when he could not find one, he dropped the shirt and attempted to leave the store. At that point, a department store loss prevention employee stopped him. He then noticed he had a second shirt still in his hand. He immediately gave the shirt to the loss prevention employee.

While he is first to admit to damaging the first shirt – though not intentionally – he states no theft ever occurred. The department store was never deprived of either shirt, but they were deprived of the value of the first shirt. He made immediate and full restitution for the damaged shirt. The eventual police report and department store employee statements are all evidence supporting the fact no theft occurred. Therefore, both the District Attorney (DA) and the department store decided against pursuing any criminal charges. While the resultant Motion to Dismiss released jurisdiction to the Air Force, the clear import of the motion is that the civilian authorities were satisfied with the restitution paid by him.

He immediately reported his circumstances to his commander. In spite of the highly circumstantial evidence against him, his impending graduation from the AFA (just days away) was put on hold while his case was investigated. Although the department store and the police dropped the charges against him, the AFA appointed a Hearing Officer (HO) to consider the case and an informal review was accomplished on 30 August 2005. The civilian authorities treated the incident as a mistake. It appears the AFA may have thought the same thing in light of the relaxed standards applicable to a Hearing Officer (HO) proceeding for misconduct instead of non-judicial punishment or court martial. As he was not punished by either forum, an interesting question arises as to whether misconduct sufficient enough to trigger the disenrollment process occurred at all. The conclusion could be drawn that the well-established distinction of “misconduct” under military law usually leads to punitive action under the UCMJ – which was not pursued – again leading to the possibility that no misconduct had actually occurred. Therefore, a fundamental defect in this disenrollment action is that the applicant did not engage in “misconduct” as he was never punished for doing so. He received no non-judicial punishment, no court-martial, or any other punishment usually ascribed to those committing “misconduct”. Nor, in fact, in four years of attending the AFA, had he received the voluminous administrative actions normally used to describe a “pattern of misconduct”. He received only 26 demerits over the four years he attended the AFA; no official administrative actions at all, to include Letters of Counseling (LOC), Letters of Reprimand (LOR), etc. It could be argued that, based on the evidence of this case, had the applicant been on active duty at the time, no legal office in the Air Force would request to separate him for “misconduct” under the same set of circumstances.

Despite several irregularities in the hearing process, the HO recommended he be disenrolled from the AFA for misconduct. The recommendation  was  accepted  by  the  AFA  Superintendent  on
1 December 2005. It was further recommended he be ordered to enlisted active duty for a period of three years to offset the cost of his AFA education.

His record is in error as it mistakenly concludes that he engaged in the alleged misconduct which formed the basis for his disenrollment from the AFA, it unfairly relies upon tainted evidence, and it reflects a failure by the AFA to follow its own rules and regulations. In addition, the HO demonstrated bias in his review which resulted in his finding that he be disenrolled from the AFA for engaging in misconduct. His disenrollment was a direct result of the HO’s review and reflects a clear injustice in his case. Finally, after being disenrolled, he has applied to cross train into the Combat Controller or Pararescue career field and has been denied. The reasons stated for denial of his cross- training is invalid.

He would like the Board to consider the following contentions in support of his request for relief:

1.	He was denied due process as the Academy had the option to present his case to an Honor Board or other forum rather than to an HO.

2.	The Academy mishandled the hearing process in that the HO conducted the hearing in an adversarial manner, contrary to regulations, and thus made the resultant report legally insufficient.

3.	He was charged with “stealing”, which is not an offense under the Uniform Code of Military Justice (UCMJ).

4.	The HO wrongly implied the applicant admitted to the charges.

5.	The HO’s report was incomplete as he neglected to call two witnesses.

6.	While the HO attempted to obtain evidence in the form of digital photos of the shirts, he did not receive them and did not explain in his report why the photos were not obtained or submitted as evidence.

7.	The HO tainted his report by speculating on why there was no destruction of property allegation, essentially interjecting uncharged misconduct.

8.	The Superintendent assigned the applicant a rating of “3” on his DD Form 785, (Academy/Superintendent’s Official Recommendation of Other Officer Training), rather than a “5”, as recommended, and is therefore inconsistent with disenrollment.

9.	He has tried many times to cross train and has been denied at every turn with either no reason given or, if given, then non- justifiable.

In support of his appeal, the applicant provides personal statements, statements from his counsel and numerous attachments to his application that include documents regarding his dismissal from the AFA, certificates of training and recommendation, many letters of support and other pertinent documentation.

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

STATEMENT OF FACTS:
On 12 August 2005, the applicant was notified in accordance with (IAW) Air Force Instruction (AFI) 36-2020, Disenrollment of United States Air Force Academy Cadets, that his commander had begun action to discharge him from cadet status. On 30 August 2005, a hearing was held IAW AFI 36-2020 to determine whether  the applicant committed the alleged misconduct of stealing two shirts,

with a total value of about $124.00, from a local department store. After consultation with counsel, the applicant exercised his right to present his case before an HO. The HO found by a preponderance of the evidence the applicant did steal one shirt valued at approximately $50.00. It was noted that while the original allegation had included two shirts in the theft, the HO’s findings brought to light that while only one shirt had been transported outside the store, another shirt had been damaged and was left inside the store. Because he was a First Degree Cadet, his case was forwarded to the Secretary of the Air Force (SECAF) for final action.

The applicant was eventually disenrolled as a result of his actions and was initially required to repay the government for the cost of his Academy education. Ultimately, his repayment status was changed and he was enlisted in the Regular Air Force to serve three years IAW with the Secretary’s order.

AIR FORCE EVALUATION:
HQ	USAFA/JA	recommends	denial	and	addresses	the	applicant’s contentions as follows:

1.	With regard to the alleged denial of due process in that the AFA could have presented the applicant’s case to an Honor Board, JA states the implication the HO process was somehow inappropriate or that the AFA “shopped around” is without merit. The HO determines the facts of the case and does not make recommendations. The Honor Board, on the other hand, is composed of cadets and does determine facts and make recommendations as to disposition. As the applicant was approximately two days from graduation, the HO gave him the highest level of review possible under the circumstances.

2.	Regarding the applicant’s contention the HO conducted the hearing in an adversarial manner, contrary to the requirements of AFI 36-2020, JA states the argument is without merit. The HO is required to review the evidence presented by the participants, including the facts and circumstances surrounding the allegations. His review of the evidence caused him to recognize and report the value of the property stolen was overstated in the allegation. Not only is this proper, it is required. It was alleged the applicant had stolen two shirts. The HO, in explaining what happened to the second shirt, simply explained one shirt had been damaged and left behind in the store. The HO corrected the allegation of stealing two shirts to reflect the theft of only one shirt, a correction made to the benefit of the applicant.

3.	With regard to “stealing” not being an offense under the UCMJ, JA states the model specification for larceny offenses under Article 121, UCMJ, refers to “stealing” certain named property. JA states this argument is completely without merit or credibility and cannot legitimately be considered an issue to discuss.
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4.	Regarding the contention the HO wrongly implied the applicant “admitted to the charges”, JA states the HO commented on the state of the evidence and the contents of the letter submitted by counsel for the applicant. The HO’s interpretation of the evidence included comments he believed constituted the applicant’s “consciousness of guilt” and were completely proper. JA states there is no evidence of any bias on the part of the HO and that it would be a “leap” for one to allege bias on the part of the HO for doing his job.

5.	Regarding the contention the HO failed to call two witnesses, thereby violating the applicant’s right to confront adverse witnesses, is again, without merit. Both witnesses provided written statements to the police, copies of which were presented to the applicant and were included in the HO’s report of findings. Further, the applicant was provided a list of witnesses the HO intended to call at the hearing. The applicant was afforded the opportunity to call any witnesses he felt could provide relevant testimony. He opted not to call any witnesses. He was not denied any of his fundamental due process rights.

6.	The HO properly determined digital photos of the shirts were not necessary as copies of the photos in question were included in the case file. JA notes the existence of the shirts was never in question; only the value of the shirts was an issue before the HO. Clearly, the absence of digital photos of the shirts did not adversely impact the legal sufficiency of the hearing.

7.	With regard to the contention the HO tainted his report by interjecting uncharged misconduct, JA states there was no improper discussion that led to uncharged misconduct. As mentioned, the HO simply pointed out one of the shirts had been damaged and left behind in the store, in an effort to set the record straight about how many shirts were actually alleged to have been stolen. He accounted for both shirts by noting only one should have been alleged to have been stolen; not two.

8.	With regard to block three of the DD Form 785 being checked as opposed to block 5 and the reason for such, JA states there is no inconsistency as alleged and the argument in this regard is ridiculous. By checking block three of the DD Form 785, the superintendent determined only that, based on his cadet record, it was determined the applicant could successfully serve in an enlisted capacity to reimburse the government for the cost of his AFA education. If block 5 had been checked, the applicant would have been required to reimburse the government monetarily rather than through enlisted service. It is that simple.

9.	JA has no recommendation with regard to the applicant’s opportunity to cross-train.

USAFA/JA	states,	the	applicant,	after	four	years	of	military training and instruction, stole a shirt from a local department

store just days before graduation. The AFA does not graduate and commission criminals. The decisions of the superintendent and the SECAF to provide the applicant with the opportunity to reimburse the government for the cost of his Academy education by serving in an enlisted capacity for three years were based on his cadet record and the recommendation of many individuals. His case was handled properly and fairly at every stage and he was afforded all necessary due process and more.

JA’s complete evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Applicant notes he applied for documents from the AFA pertaining to correspondence from the former AFA Commandant, and other correspondence under the Freedom of Information Act (FOIA) on
27 June 2006; over two years ago and he still has not received anything. It is believed that these documents could provide substantial insight as to why the AFA chose to send the applicant’s case to an HO, thereby depriving him of significant due process protections.

He argues no misconduct occurred in this case. He believes the AFA’s understanding of the factual basis for this case is incomplete. For instance, the JA opinion leaves out two significant details that bear review. First is that the applicant’s case was reviewed by the outgoing AFA Superintendent, Lieutenant General R., who recommended disenrollment with the DD Form 785 rating of “5”. The incoming AFA Superintendent reconsidered the case and upgraded the DD Form 785 to a “3”, recommending the applicant serve in an enlisted status in a Combat Rescue or Pararescue career field. Further, the new superintendent mentioned the possibility of future service as a commissioned officer in the United State Air Force. As the applicant was never informed this reconsideration was taking place, he was never allowed any input into the process. The reconsideration and resultant upgrade of his record clearly raises questions regarding the clemency action provided by the new superintendent and whether he would have arrived at the same disenrollment decision had he been the original decision authority. When the new superintendent changed the harsh disenrollment rating from a 5 to a 3, he was indicating a fundamental disagreement with prior actions taken in the case. He was signaling his view that justice had not been done.

The second significant detail missing from the JA advisory is the fact that the AFA’s Senior Enlisted Advisor worked very hard to help the applicant enter the Pararescue or Combat Controller career fields as recommended by the Superintendent. Contrary to the AFA’s assertion it does not have any information about the applicant’s request to cross-train; the opposite is actually true as is shown in this application.

Counsel for the applicant provides an item-by-item rebuttal to the USAFA/JA opinion as follows:

1.	The JA opinion denies the AFA was “forum shopping” when deciding to send the applicant to an HO as opposed to an Honor Board asserting the criticality of his case made it necessary to send to the superintendent who would provide the “highest level of review.” The JA argument is disingenuous in that his case would have to be reviewed by the superintendent in either case. Thus the “highest level of review” was available under either process especially when the future of a First Class cadet was involved. Therefore, the applicant was deprived of significant due process protections (and the judgment of his peers) when his case was not sent to an Honor Board as opposed to an HO. It remains unclear why the AFA chose to proceed with a non-criminal review process if the alleged misconduct was as serious as it now believes. It appears the selection of an HO was an indication that the case was either not serious or the AFA wanted a quick exit for the applicant without all the normal due process protections.

2.	One of the most serious issues in this case revolves around the adversarial manner in which the investigation and HO process was conducted. The JA opinion tries to gloss over the seriousness of this issue by stating the HO is only supposed to “review the evidence” as opposed to the instruction in AFI 36-2020, wherein is stated “The hearing officer conducts the hearings in a non adversarial way.” Unfortunately, the applicant’s hearing was not non-adversarial. After his commander alleged he stole two shirts in his Letter of Notification (LON), the HO abruptly changes course and discussed the theft of one shirt and damage to a second shirt. This action changed the nature of the case interjecting uncharged misconduct which was highly prejudicial considering the applicant made full restitution for the damaged shirt. The HO then compounded the error by using the fact of restitution as evidence of guilt, when such a conclusion was not warranted by the facts of the case and the normal rules of evidence as applicable in a standard judicial proceeding.

3.	The HO somehow arrived at the unsupported conclusion the applicant had admitted he was guilty of the allegations. Close examination of the facts however, reveals there were no admissions of any kind from the applicant in any part of this case, to include the police report and the applicant’s written statement to the HO. The HO does not cite the source for his contention as it appears he simply misconstrued the evidence in a manner to support his position instead of being an objective fact-finder.

4.	The JA opinion fails to see the importance of the fact two witnesses (loss prevention employees) who should’ve been called, weren’t called. JA’s reason for not calling them is they had provided their written statements to police. This is important to the applicant’s case as there remains the question as to whether the shirts ever left the department store property. Further, while the HO notified the applicant of his intent to use the police report, he was deceptive in that he claimed there would be
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no witnesses, but he used the police report as direct witness statements when they are, in fact, second-hand statements from a police officer.

5.	The assault on the applicant’s presumption of innocence begun by the commander tainted the entire processing of his case. On 12 Aug 05, the HO process was initiated by a LON from the AFA Commandant notifying the applicant he was beginning the discharge process because, on 29 May 2005, he stole two shirts worth about
$124.50. The Commandant recommended he receive a general, under honorable conditions, discharge. The presumption of  guilt implicit in this LON is evident. The hearing had not yet begun and he already knew he was being discharged with a general discharge. The commandant’s mind was made up and the HO’s adversarial report only reinforced his position. These actions went far beyond the role of a neutral commander and  were completely inconsistent with the presumption of innocence. The bias of the commandant was evident in the fact he alleged that two shirts had been stolen when only one shirt should have been the issue. All of these things were done prior to the HO’s initial meeting with the applicant and after the Police and the department store statements provided evidence to the fact only one shirt was allegedly stolen and ultimately no shirt left the store property.

6.	The JA opinion takes the position the HO had no requirement to explain the “out of character” behavior of the applicant, which is somewhat strange in light of the 56 character statements provided by the applicant. This entire situation is  not consistent with the applicant’s outstanding and honorable behavior prior to the incident and following the incident as demonstrated in numerous character reference letters, and both formal and informal reviews from his superiors. The AFA cannot have it both ways. Either the HO must explain all behavior; including the fact the applicant’s alleged conduct was completely out of character or none at all.

7.	It is regretful the AFA has resorted to name calling against one of their former star students and exemplary cadets. This is simply further evidence of the adversarial manner in which the applicant’s case has been handled. No civilian or military criminal charges were filed and yet the AFA has referred to the applicant as a “criminal” in spite the lack of a civil or criminal conviction in his case. In fact, there is not one adverse action in the applicant’s entire AFA record that would support such a conclusion. Even the alleged incident did not result in any adverse paperwork against the applicant – nothing. The absence of adverse action would normally indicate a lack of evidence.

New evidence has come to light from the applicant himself. His right to counsel, his right to remain silent, and the presumption of innocence were violated by his commander three times, and again by the HO. His commander wanted to know if he was guilty before he had been presented with any evidence in the case. He informed his commander he wanted to speak with a lawyer before he made any statements.  His commander told him, “Since you won’t deny it, I

have to assume you are guilty”, or words to that effect. He repeated the exact statement three times over the few days after the incident. After the third time, the applicant was allowed to speak with an Area Defense Counsel (ADC).

Applicant’s complete response, with attachments, is at Exhibit E.

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.		The  appl i cant ' s compl et e	submi ssi on	was	t hor oughl y		r evi ewed	and	hi s		cont ent i ons wer e		dul y		not ed.			Howev er ,		we			do		not		f i nd	t he		appl i cant ’ s asser t i ons		and	t he	document at i on	submi t t ed		i n		suppor t		of		hi s appeal		suf f i ci ent l y  per suasi ve  t o  over r i de  t he  r at i onal e  pr ovi ded by	t he	Ai r	For ce		of f i ce		of		pr i mar y		r esponsi bi l i t y		( OPR) . Ther ef or e,	i n	t he	absence	of	evi dence		t o	t he	cont r ar y,	we	agr ee wi t h  t he  r ecommendat i on  of	t he  OPR and  adopt	i t s  r at i onal e  as  t he basi s		f or		our	deci si on	t he	appl i cant		has		f ai l ed	t o		sust ai n	hi s bur den  of	est abl i shi ng  t hat		he  has  suf f er ed  ei t her	an  er r or	or	an i nj ust i ce.		Accor di ngl y,	we  f i nd  no  compel l i ng  basi s  t o  r ecommend gr ant i ng  t he  appl i cant ’ s  r equest	t hat	hi s  r ecor ds  be  cor r ect ed  t o show  he	gr aduat ed	f r om  t he	Ai r		For ce	Academy	and		r ecei ved	hi s commi ssi on  on  1  Jun  2005.

4.	Regarding the applicant’s request that in the alternative to the relief requested above, he be allowed to cross-train into the Pararescue or Combat Controller career field, we also do not find evidence of an error or injustice. While he contends he has been denied selection for retraining in these career fields for invalid reasons, he has not provided sufficient evidence to support this contention. He stresses the qualifications he possesses to serve in these career fields as well as the recommendations he received from the USAFA Superintendent and others; however, he has not shown why his failure to be selected constitutes an error or injustice, or that his application was not properly considered. We make no judgment regarding the applicant’s qualifications to serve in the requested career fields, but in the absence of sufficient evidence demonstrating he has been the victim of an error or injustice we find no basis to recommend granting this alternate relief.

5.	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.

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.

The following members of the Board considered AFBCMR Docket Number BC-2008-01699 in Executive Session on 18 November 2009, under the provisions of AFI 36-2603:

The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 4 Apr 08, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, HQ USAFA/JA, dated 19 May 08. Exhibit D.  Letter, SAF/MRBR, dated 13 Jun 08.
Exhibit E.  Letter, Counsel, dated 18 Sep 08.