RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-01161 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His records be corrected to reflect that he was not disenrolled from the United States Air Force Academy (USAFA), and that the Disenrollment Hearing be removed from his record. 2. His final grade in Astronautics (Astro) 310 be corrected to reflect a passing score. ________________________________________________________________ APPLICANT CONTENDS THAT: 1. His dismissal from the USAFA was not factually substantiated and he was the victim of a conspiracy to cover-up the culture of alcohol abuse at the academy. 2. He was denied due process in his Disenrollment Hearing because he was only given four days’ notice of the hearing instead of the required seven days. 3. The Superintendent of the USAFA relied on a biased and incomplete report from the Investigating Officer (IO), failed to consider newly discovered evidence and mitigating evidence, and subsequently provided incorrect statements to a Congressional inquiry. 4. His grades were changed following the initiation of his disciplinary proceedings to ensure he would not receive a graduation diploma. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 29 Jun 06, the applicant attended the United States Air Force Academy (USAFA) in cadet status. On 28 Apr 10, the applicant’s Vice Commandant initiated action to discharge the applicant from cadet status. The specific reasons for the action were as follows: a. The applicant provided alcohol to cadets under the legal drinking age of 21, as evidenced by an Article 15, dated 19 Apr 10. b. Two false official statements, as evidenced by an Article 15, dated 19 Apr 10. c. Soliciting another cadet to make a false official statement, as evidenced by an Article 15, dated 19 Apr 10. d. Consuming alcohol while prohibited, as evidenced by and AF Form 1168, Statement Of Suspect/Witness Complainant, dated 7 Apr 10, and an Air Force Cadet Wing (AFCW) Form 10, dated 6 Apr 10. e. Violating a no contact order, as evidenced by an AFCW Form 10, dated 6 Apr 10 and; f. Having unprofessional relationships with underclass cadets, as evidenced by an AFCW Form 10, dated 6 Apr 10. The applicant was advised that he may present his case to a Hearing Officer, receive (if he choose to present his case to a Hearing Officer) all the rights of AFI 36-2020 and may use military witnesses provided the request for witnesses is timely submitted and, in the opinion of the Hearing Officer, the witnesses can present relevant evidence that cannot be reasonably received though videotape, deposition, interrogation, or sworn or unsworn written statement. The applicant was also advised of his right to submit statements in his own behalf, and waive the aforementioned rights. Lastly, the applicant was informed that he was to reply, in writing, no later than 5 May 10, stating the rights he choose. If he decided to waive the board proceedings, all matters he wanted reviewed by the Commandant and/or Superintendent were to be submitted on 5 May 10. On 5 May 10, the applicant acknowledged receipt of the action and invoked his right to a hearing before a Hearing Officer. He elected not to submit statements on his behalf and not to submit a Resignation in Lieu of Disenrollment. On 13 May 10, the Hearing Officer notified the applicant of the time, place and particulars of the hearing (17 May 10, 1300 hours, USAFA/JA Courtroom), the specific allegations in his case, the names of expected witnesses, and the documents she planned to consider at the hearing. On 17 May 10, the hearing convened and on 25 May 10, the Hearing Officer found by a preponderance of the evidence, the applicant committed each of the alleged offenses. On 27 May 10, the applicant was served a copy of the findings and a verbatim transcript of the proceedings. On 4 Jun 10, the applicant appealed the findings and requested that he be retained. He submitted written matters for the Commandant and Superintendent to consider regarding their retention/disenrollment decision. On 18 Jun 10, the Superintendent directed the applicant be disenrolled from the USAFA due to misconduct, furnished a general (under honorable conditions) discharge, and recommended to the SECAF that he be ordered to monetarily reimburse the government for the cost of his Academy education. On 8 Sep 10, the Secretary of the Air Force (SECAF) approved the Superintendent’s Active Duty Service Commitment (ADSC) recommendation and ordered the applicant to reimburse the government for the cost of his education. On 8 Aug 12, SAF/IGQ responded to the applicant’s request for their office to review his case informing him that they have no authority to overturn the disenrollment decision by the USAFA. Additionally, they informed the applicant that they reviewed the process used by the USAFA and found no discrepancies. Lastly, they reviewed the calculation of his Astro 310 grade and concurred that his final grade was calculated correctly, without regard to other disciplinary processes going on at the time. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is attached at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: USAFA/JA recommends denial indicating there is no evidence of an error or injustice. The applicant was afforded due process at his disenrollment hearing and additionally, the Secretary of the Air Force Personnel Council reviewed the case and decided based on the applicant’s substantiated misconduct, he should monetarily reimburse the government for the cost of his USAFA education. The applicant contends that his disenrollment hearing was conducted without giving him a seven day written notice. In accordance with AFI 36-2020, Disenrollment of United States Air Force Academy Cadets, paragraph 25.4 only states that before a hearing, the Hearing Officer provides a cadet with written notice of the time and place of the hearing, allegations he/she is charged with investigating, witnesses he/she intends to call, and documents he/she intends to consider. All of these due process measures were complied with in the notification the applicant received from the Hearing Officer. The applicant may have confused the seven day notice requirement with the timeframe referenced in the notification letter in accordance with AFI 36-2020, Attachment 4, which allows for seven days for the applicant to consult with civilian counsel regarding election of rights they are to make in the hearing officer venue. The applicant was put on notice on 28 Apr 10 that he had until 5 May 10, in compliance with the seven day requirement. The applicant through his counsel identified the witness statements that the Hearing Officer considered as being unsworn statements. This is not true, in fact, the AF IMTs 1168, Statement of Suspect/Witness/Complainant, of the witnesses as well as the applicant, clearly indicate that they were sworn statements. Furthermore, all of the allegations set forth in the Article 15 process were found to be legally sufficient. While the applicant and his counsel contend that the applicant was disenrolled as a consequence of him being a “whistleblower” due to a “cover-up” of an active conspiracy, it is important to note that the other cadets involved were held accountable for their infractions as well. Multiple agencies have conducted investigations in regard to inappropriate alcohol consumption and abuse by the USAFA baseball team and, as a result, new team rules were implemented and closer supervision of the program was put into effect. Nevertheless, there is no nexus between the team’s culture and the substantiated allegations of misconduct that lead to the applicant’s disenrollment. As for the applicant’s request pertaining to his astronautics grade, according to DoD Directive 1322.22, paragraph 4.5.5 and USAFA Instruction 36-3533, Requirements for Graduation, in order to graduate from the USAFA and receive a degree, a cadet must demonstrate an aptitude for commissioned service and leadership, be satisfactory in conduct, and meet all military training, physical education, and academic requirements. Based on these authorities, even if the applicant’s grade in Astro 310 was changed to a passing grade, due to his misconduct, he would still not earn his degree. The applicant was deficient in both commissioned service and leadership and conduct. While the applicant argues that if his Astro 310 grade was changed to a passing grade, he would have completed all necessary work for a degree from the USAFA, an adequate academic record is not the sole basis for determining who is awarded a degree from the USAFA. The alcohol related misconduct is the basis of the applicant’s disenrollment and a misconduct based disenrollment is what prevents him from being awarded a degree from the USAFA. A complete copy of the USAFA/JA evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant’s counsel on 2 May 13 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ 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. We took notice of the applicant's complete submission in judging the merits of the case; however, 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 the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no 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. ________________________________________________________________ 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-2013-01161 in Executive Session on 14 Jan 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-01161 was considered: Exhibit A. DD Form 149, dated 4 Mar 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, USAFA/JA, dated 16 Apr 13. Exhibit D. Letter, SAF/MRBR, dated 3 Dec 13. Panel Chair