RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03934 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to reflect that he was not disenrolled from the United States Air Force Academy (USAFA), and that he be reinstated as a member of the Cadet Wing. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. His honor violations were mischaracterized as highly egregious when compared to those of other cadets, and contained other misleading statements when forwarded to the USAFA Chain of Command. Another cadet was accused of cheating on the computer homework by stealing the homework and then lying about it; however, the other cadet’s behavior was not deemed as “egregious,” and he was retained. In fact, the applicant simply failed to document assistance in completing his homework assignment. 2. He was subjected to multiple due process violations. The alleged discrepancies are: a) he was improperly advised on his right to counsel, b) the violation the applicant was found guilty of was different than the original honor violation cited in the letter of notification, c) the violation was mischaracterized by the Cadet Sanctions Recommendation Panel (CSRP) making it appear more egregious to the USAFA chain of command, d) the CSRP failed to fully address the "forthrightness" factor, saying it was not significant, e) the CSRP failed to consider "Understanding of the Code" then recommended disenrollment because of the earlier honor violation - a factor that is not listed as one to be considered during the sanction recommendation process, and f) the applicant was unfairly denied access to the CSRP recommendation with which to prepare his appeal. 3. He was denied the opportunity to complete his Honor Probation associated with his first Honor Code violation when his second Honor Code violation came to light. Had he been allowed to complete Honor Probation, he would have demonstrated his worthiness for retention. 4. Insufficient weight was given to the opinions and inputs of cadet leadership, Air Officer Commanding (AOC), professors, and the applicant’s peers, many of whom wrote character references on his behalf. Too much weight was given to the Group Honor Chair’s (GHC) input when her logic and conclusions appeared to be suspect. She did not address how the applicant was doing under his honor probation, which was underway when she wrote her recommendation; nor did she address the affirmative recommendations made by his AOC, who recommended he be allowed to complete his honor code probation. 5. By amendment, the applicant contends the CSRP Chair was clearly biased against him since she served as the GHC and the CSRP Chair for his earlier minor Honor Code violation. 6. The Superintendent abdicated his authority by not referring the matter to the Academy Board, instead choosing to rely on the inputs he received through the Honor System process. In support of his request, the applicant provides an expanded statement, a brief of counsel, a supporting statement from his area defense counsel, and copies of excerpts of his military personnel records, numerous character statements, and the Air Force Cadet Wing Honor Code Reference Handbook. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant attended USAFA in cadet status beginning on 24 Jun 10 as a member of the Class of 2014. On 27 Aug 10, he admitted to a CSRP that he violated the honor code by cheating on 15 Aug 10. His violation was that he indicated he made only two mistakes on a practice knowledge test by turning in a correction sheet showing only two errors, while he had actually made six mistakes. On 19 Sep 10, after considering the CSRP recommendation to place the applicant on Honor Probation, the Commandant of Cadets concurred. On 1 Oct 10, the Vice Commandant of Cadets notified the applicant he was placing him on a six-month Honor Probation Program in accordance with the Commandant’s 19 Sep 10 decision related to the applicant’s first honor code violation. On 19 Oct 10, the applicant was notified he was suspected of violating the USAFA Honor Code again by cheating, on or about 27 Sep 10, with the intent to receive undeserved credit when he copied and pasted algorithms from a fellow cadet into a homework assignment in violation of the Computer Science Department’s help policy and which he also failed to document in his documentation statement. The applicant acknowledged receipt the same date, waived his right to counsel and to remain silent, admitted he committed the noted violation of the Honor Code, and requested his case be referred to a CSRP. On 2 Nov 10, the applicant admitted his second honor code violation to a CSRP, which subsequently recommended his disenrollment from the USAFA. On 15 Nov 10, the case was found to be legally sufficient. On 7 Dec 10, after considering all the facts and circumstances of the case, the Commandant of Cadets notified the applicant he was recommending him for disenrollment and forwarded said recommendation to the USAFA Superintendent for a final determination. On 8 Dec 10, the applicant acknowledged receipt of the action, indicated he had consulted with counsel, and elected to submit an appeal to the Superintendent. On 17 Feb 11, the case file was found to be legally sufficient and on 26 Feb 11, the USAFA Superintendent directed the applicant be disenrolled. On 4 Mar 11, the applicant was disenrolled from USAFA and discharged as a cadet. ________________________________________________________________ AIR FORCE EVALUATION: The Commandant of Cadets (USAFA/CW) recommends denial indicating there is no evidence of an error or injustice. The applicant claims he was treated unjustly because the Cadet Honor Committee Leadership treated his violations as egregious when they were not, and failed to acknowledge that he was forthright in taking responsibility for his behavior. The USAFA Honor process was followed correctly as the procedural guidance from The Cadet Wing Honor Code Reference Handbook Volume II, Oct 09, paragraph 5.1.1 was thoroughly adhered to. Per this guidance, when making recommendations, four factors must be addressed: time under the code; egregiousness of the offense; forthrightness; and, type of report (i.e., self-report/admit/deny). All were appropriately considered. The CSRP found the applicant’s act and intent was egregious and recommended disenrollment. The CSRP Chair’s sanction recommendation stated: “Egregiousness in this case is significant (in) that he was willing to knowingly cheat on an assignment for a class that made the policy very clear on outside help and documentation. Not only did he copy the program but he made a false statement that he received no help on the program in his documentation. His action is highly egregious.” His Cadet Squadron Commander added: “The situation is compounded by the fact he had already been involved in an honor incident less than two months prior to the occurrence of this second offense.” All subsequent reviewers agreed with the CSRP Chair’s assessment. The applicant’s misconduct was not mischaracterized since the egregiousness of his offense was deliberate (he intended to cheat, and he did). The fact the applicant violated the Honor Code a second time only one month after being found in violation of the Honor Code makes his second offense even more deliberate and egregious. The applicant was afforded due process throughout the consideration of his case. The applicant’s case was decided by his peers and the USAFA leadership in accordance with their authority. A complete copy of the USAFA/CW evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: Counsel argues the USAFA/CW evaluation fails to be responsive to a number of points raised in the applicant’s submission: 1. The advisory does not address the applicant’s success on probation as a factor to be considered in resolving his claims. 2. On the question of egregiousness, it fails to address the fact the cadet who gave the applicant the information in question during the second honor violation committed a more serious honor violation by stealing it from another cadet. Yet, that individual was allowed to remain at the Academy. 3. Contrary to the advisory, an intent to cheat, standing alone, does not make an honor violation egregious. Nor does the commission of a second offense, standing alone, mean the second offense is egregious. Counsel also argues the USAFA Superintendent abandoned his role in overseeing the honor system, when he failed to refer the case to the Academy Board. The Superintendent had an independent duty to exercise his own judgment when considering an appeal rather than to defer to the cadets who run the honor system. Thus, his decision to deny the applicant’s appeal was arbitrary, capricious, and unreasonable. The applicant has demonstrated he was treated unjustly and deserves the relief requested. The applicant also submitted an expanded statement wherein he reiterates that he was unfairly denied the opportunity to demonstrate he was worthy for retention when he was unable to complete his honor probation associated with his first honor code violation; his forthrightness in the matter and supporting statements were not appropriately considered when the USAFA leadership decided his fate; the CSRP Chairperson was clearly biased since she served as the Group Honor Chair and the CSRP Chair for his earlier minor Honor Code violation; and, it is significant that he admitted to his mistake and was completely honest after realizing the mistake he had made. Having looked at the four factors, it is difficult for him to believe he was disenrolled. In support of his response, the applicant provides an expanded statement, a statement from Counsel, and a supporting statement from his father attesting to conversations he indicates he had with the USAFA Commandant of Cadets in the aftermath of both of the applicant’s honor code violations. He contends that based on advice from the Commandant, he told the applicant to admit guilt and accept responsibility for his actions and everything would work out to the applicant’s benefit; however, this turned out to not be true and his son was unfairly disenrolled. A complete copy of the applicant’s response, with attachments, is at Exhibit E. ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: USAFA/JA recommends denial indicating there is no evidence of an error or injustice. The applicant contends that his disenrollment from USAFA was unjust because his honor violations were not egregious, he was subjected to multiple due process violations, he was denied the opportunity to prove his worthiness for retention when he was not allowed to complete his honor probation, his forthrightness in accepting responsibility and statements rendered in his behalf were not given due consideration, the CSRP chair was biased against him, and the Superintendent, USAFA abdicated his authority when he deferred his decision to the cadets who run the honor system. However, throughout the application, neither the applicant nor his attorney ever denies the applicant admitted to committing multiple honor code violations during his first few months at USAFA. While he contends that his honor code violation was not egregious and that another cadet involved in the incident was guilty of much worse behavior, egregiousness is one of four main factors considered by parties making a sanctions recommendation in an honor case. The other factors are: time under the code, forthrightness, and the type of report (self-report, admit, or deny). While the applicant’s first violation was not considered to be egregious, his second violation, copying a classmate’s computer program for use in his homework, then failing to document that he received help was found to be more egregious because of the deliberativeness of his actions, particularly in the aftermath of the first violation. While the honor system does not do case and sanctioning comparisons as each case is assessed on a case-by-case basis, the Deputy Chief of the Honor Division did label the egregiousness of the other cadet involved “significant” (which is consistent with the assessment of that factor in the applicant’s case) and the CSRP Chairperson considered that other cadet’s egregiousness “moderate.” As for the applicant’s contentions related to discrepancies in the handling of his case, he has presented no evidence that he was improperly advised of his right to counsel. On the contrary, the compelling evidence that does exist indicates he was properly advised of his right to counsel, as evidenced by his initials/signature on the 19 Oct 10 Letter of Notification (LON). As for his contention the final honor allegation was different than the original honor allegation noted in the LON, this contention is without merit as the change was nothing more than a minor, administrative change to account for the specific facts that were developed in the course of the honor investigation. The original allegation to be investigated, as incorporated into the LON, was, "Cheating, on or about 27 Sep 10 with the intent to receive undeserved credit when you copied and pasted algorithms from C4C J- D-, which you received from C4C J— H—, into homework #3, which was in violation of the Computer Science department's help policy, and which you also failed to document in your documentation statement." However, the allegation was subsequently amended because the applicant admitted to his teacher that he had in fact copied what was given to him by C4C H—, but was unaware that the program originally came from C4C D -. Therefore, though the substance of the allegation and its context remained unchanged, to ensure accuracy of the allegation, the new allegation eliminated reference to C4C D—. Subsequently, the applicant admitted to, and the CSRP found the applicant in violation of the new allegation that read, "Cheating with the intent to gain unfair advantage on or about 27 Sep 10 by pasting significant portions of algorithms for his Computer Science HW#3 from C4C J— H—, who obtained the programs from another cadet, and failing to document the same which is a violation of the Computer Science help and documentation policies, with the intent to receive credit for work not his.” As for his assertion his honor violation was mischaracterized to USAFA Senior Leadership when: 1) the CSRP Chairperson mistakenly indicated the applicant “committed the action after recently getting placed on probation for an honor violation early this semester,” when he was not placed on probation until three days after the second honor incident, 2) cadets involved in his case stated he was under the honor code for four months when the applicant was only under the honor code for three months and that his actions were "motivated by laziness, the noted errors in the chronology of events and the applicant’s time under code, as well as the speculative comments related to what motivated the applicant’s first honor code violation should be deemed harmless. While the applicant’s second honor violation occurred 27 Sep 10 and he was placed on Honor Probation from the first incident on 1 Oct 10, both the Commandant and the Superintendent were aware of this delayed probation placement before they took action on the case so their disenrollment recommendation and decision, respectively, were not made based on this inaccurate statement in the CSRP Chairperson’s memorandum. While the applicant’s Cadet Squadron Commander, in his Sanction Recommendation memorandum for record (MFR), stated the time under the Code as being four vice three months, this can also be deemed harmless error as the time under the Code factor, whether it be three or four months, weighed in the applicant's favor in this case. The significance of this factor is more a function of years/number of semesters a cadet lives under the code and not the difference of one additional month that makes more of an impact in this category. Further, the Commandant and the Superintendent are fully aware of the when the four degrees arrive for in-processing at the end of June each year and know they've all had limited time under the code during that first academic semester. Finally, while it was speculative for the applicant's squadron commander to have labeled the applicant's first honor incident as, "motivated by laziness," in his MFR, the disenrollment was based upon the second honor infraction and the squadron commander’s MFR was not used in the sanctioning determination. Finally, concerning the applicant’s lack of access to the CSRP recommendation, the ADC acknowledges in his 16 Feb 11 MFR that the situation has now been remedied since he received the CSRP recommendation. As for the applicant’s assertion he should have been allowed to complete his honor code probation associated with his first honor code violation, successful completion of honor probation does not factor into the sanctions determination for subsequent honor violations. Therefore, while it is true the applicant performed admirably while on his honor probation and the Superintendent had that information before him when he made his disenrollment decision, the applicant was not able to complete his honor probation for the first honor offense because he was disenrolled based on his second honor infraction prior to completion. As for the applicant’s assertion that not enough weight was given to his forthrightness in the matter or the affirmative recommendations of his peers, cadet leadership, AOC, and professor, the Commandant and Superintendent considered the entire case file and made their determination based on their judgment and experience. The applicant has not presented any evidence that the Commandant and/or Superintendent failed to consider these aforementioned inputs that were before them when taking action in this case. While the applicant argues the CSRP Chairperson was biased since she served as both the Group Honor Chair (GHC) and as the CSRP Chairperson for his initial honor infraction, it is standard procedure in the Honor Division for the GHC to act as the CSRP Chair for cases that occur within their Group. In addition, the applicant acknowledged that he could challenge her appointment as the presiding GHC, and he chose not to do so. As for the allegation the Superintendent abandoned his role in overseeing the honor system by simply deferring his decision to the cadets who run the honor system, this case was only before the Superintendent because the Commandant first gave the applicant’s honor case file due diligence and consideration before making a recommendation for disenrollment. It is oversimplifying the situation to imply that the Superintendent is somehow delegating his disenrollment authority. In addition, the Superintendent is not required to obtain an advisory opinion from the Academy Board and in his discretion elected not to do so in this case. A complete copy of the USAFA/JA evaluation is at Exhibit F. ________________________________________________________________ APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: The applicant reiterates many of his original assertions described above and indicates it is difficult for him to understand how he was disenrolled for his failure to document the help he received when his roommate was allowed to stay at USAFA when he was guilty of what seems to be a more egregious violation of the honor code. This inconsistent treatment only undermines confidence in the Honor system as it is applied to cadets involved in the same incident. In addition, he does not remember being told or signing anything that said the GCH that had presided over his first honor infraction would preside over his second. Upon arriving at his second CSRP, the first thing she said was, “Why are you here again? Obviously, you didn’t learn anything the first time.” Clearly, her decision has been made even before he could state his case. Counsel argues that the USAFA/JA advisory opinion fails to be responsive to many of the points raised in the application, and again attaches independent statements. On the issue of egregiousness, the advisory appears to concede that the cadet who gave the applicant the computer program in question (the second honor violation), committed a more serious honor violation by stealing it from another cadet. Implicitly, the advisory opinion confirms this cadet was allowed to remain at USAFA. The advisory also claims that successful completion of honor probation should not factor into resolving subsequent honor violations or sanctions. There is no basis for this position. On the contrary, the Deputy Chief of the Honor Division (CWCH), stated, “These factors, taken together, indicate that the applicant will not successfully complete probation, so CWCH recommends disenrollment.” His prediction proved to be meritless. The advisory writer concedes, “we concur that the applicant had performed admirably while on his honor probation….” In another misleading statement, the advisory used a partial quote from a professor to imply that he was not supportive and may even have been performing a purely administrative function in completing his assessment. Nothing could be further from the truth. If he felt the applicant had cheated in lieu of simply neglecting to document assistance, he never would have given the applicant a passing grade on the assignment. Perhaps most noteworthy is the advisory’s failure to acknowledge the repeated statements of strong support rendered by his AOC. These statements appear to be have been ignored by the Superintendent, who appears to have completely deferred to the conclusions and recommendations submitted by the cadets who run the Honor system. Counsel states the advisory does not include any statements from the Superintendent or the Commandant challenging conversations they reportedly had with the applicant’s father. The applicant’s complete response, with attachments, is at Exhibit H. ________________________________________________________________ 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. The applicant contends that his disenrollment from USAFA was unjust because his honor violations were not egregious, he was subjected to multiple due process violations, he was denied the opportunity to prove his worthiness for retention when he was not allowed to complete his honor probation, his forthrightness in accepting responsibility and statements rendered in his behalf were not given due consideration, the CSRP chair was biased against him, and the USAFA Superintendent abdicated his authority when he deferred to the cadets who run the honor system in making his decision. After a thorough review of the evidence of record and the applicant’s complete submission, to include the various responses to the advisory opinions rendered in his case, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale for the basis of our conclusion the applicant has not been the victim of an error or injustice. Counsel argues the applicant’s honor violation that precipitated his disenrollment was mischaracterized as egregious when compared to that of his former roommate, who was retained at USAFA even though his conduct was much more egregious; however, other than his own assertions, he has presented no evidence to indicate that his conduct (deliberately copying a classmate’s computer program for use in his homework and failing to document that he received help) was not appropriately characterized based on the fact that his actions were deliberate and took place only one month after committing his first honor code violation. Concerning the applicant’s contention that his former roommate was retained at USAFA after a more egregious honor infraction, the Board understands that USAFA leadership must consider each case independently, and the applicant has not provided sufficient corroborating evidence to establish that he is the victim of disparate treatment or that USAFA leadership, who had all the facts available to them, failed to properly carry out their duties and responsibilities by exceeding their discretionary authority. Therefore, based on the presumption of regularity in governmental affairs we must assume the responsible officials acted appropriately in deciding the applicant’s case. The applicant also argues that he was subjected to multiple due process violations; however, based on the evidence before us, we believe the applicant’s due process rights were thoroughly observed throughout the process. While he alleges he was improperly advised on his right to counsel, the evidence of record clearly indicates he understood his rights to counsel as evidenced by his initials on the letter of notification (LON). As for his assertion the violation he was found guilty of was different than the original honor violation cited in the LON, we are not convinced the evolution of the allegation over the course of the investigation served to deprive him of his due process rights. In this respect, we note the comments of USAFA/JA indicating the change was actually nothing more than a minor, administrative change to account for the specific facts which were developed over the course of the honor investigation, as is normally done. The applicant also contends that his second honor code violation was mischaracterized when erroneous/objectionable statements were included in various documents. While the CSRP Chairperson mistakenly indicated that his second honor code violation took place while he was on honor probation for his first offense, and his squadron commander mistakenly indicated that he was subject to the honor code for four months instead of three months, we find these errors of fact harmless and are not persuaded they served to deprive reviewing officials, the Commandant of Cadets and Superintendent, of information essential in rendering a reasoned decision in the applicant’s case. In this respect, we note the comments of USAFA/JA indicating that notwithstanding the noted errors, both the Commandant and the Superintendent were well aware of the applicant’s delayed probation placement and his time under code before they took action on the case so their disenrollment recommendation and decision, respectively, were not made based on these minor inaccuracies in the evidence of record. As for the applicant’s objection to the speculative language used in his squadron commander’s MFR, we note that this MFR was rendered as a part of the applicant’s first honor code violation and therefore was not used in the sanctioning determination of his second infraction, which resulted in his disenrollment. Finally, the applicant contends that his due process rights were violated when certain documents related to his disenrollment decision were not made available to him for his use in crafting an effective appeal. While it appears there was a delay in providing these documents to the applicant, the documents were eventually made available for the applicant’s use to craft his appeal. The applicant also contends that had he been able to complete his Honor Probation, he would have effectively demonstrated his worthiness for retention. However, we are not convinced the termination of the applicant’s honor probation was due to an error or injustice on the part of the Air Force. In our view, it was his own action of violating the honor code a second time that resulted in his inability to complete honor probation, and the Superintendent was aware of his progress in the Honor Probation Program when making the disenrollment decision. As for the applicant’s remaining allegations that insufficient weight was given to the opinions and inputs of cadet leadership, the Air Officer Commanding (AOC), professors, and the applicant’s peers; the CSRP failed to fully address the "forthrightness" factor or consider “Understanding of the Code;" the CSRP Chair was biased against him since she served as the Group Honor Chair (GHC) and the CSRP Chair for his earlier minor honor code violation; or, the Superintendent abdicated his authority by not referring the matter to the Academy Board, once again, other than his own assertions, the applicant has not provided sufficient evidence for us to conclude that responsible officials failed to properly exercise the discretionary authority granted them. Finally, we note the applicant’s father has rendered statements wherein he expresses his concern about certain conversations he had with the Commandant of Cadets and Superintendent. However, other than his own assertions, he has provided no evidence which would lead us to believe that USAFA leadership failed to fulfill their responsibilities when considering and making a final determination in this disenrollment case. Ultimately, while the applicant, his counsel, and area defense counsel (ADC) present a variety of arguments intended to impugn the fairness and outcome of the process that resulted in the applicant’s disenrollment from the USAFA, we are not persuaded the applicant was denied rights to which he was entitled, appropriate standards were not followed, or that responsible officials abused their discretionary authority or acted in an arbitrary or capricious manner. Therefore, in view of the foregoing and in absence of evidence to the contrary, we are not persuaded that we should substitute our judgment for that of responsible officials who determined the applicant should be disenrolled from the USAFA. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material 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. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-03934 in Executive Session on 27 Jun 12, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 20 Sep 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, USAFA/CWCH, dated 8 Nov 11. Exhibit D. Letter, SAF/MRBR, dated 9 Dec 11. Exhibit E. Letter, Counsel, dated 8 Jan 12, w/atchs. Exhibit F. Letter, USAFA/JA, dated 23 Apr 12. Exhibit G. Letter, AFBCMR, dated 7 May 12. Exhibit H. Letter, Counsel, dated 1 Jun 12, w/atchs.