RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-00676

	COUNSEL: YES
	
	HEARING: YES

APPLICANT REQUESTS THAT:

1)	He be provided an immediate commissioning into the Air Force; or in the alternative,

2)	His DD Form 785, Record of Disenrollment form Officer Candidate – Type Training, dated 9 Dec 14, be corrected to reflect he is “highly recommended” as a candidate for another commissioning source; and,

3)	His tuition recoupment waive (Fail to Exhaust).

APPLICANT CONTENDS THAT:

His disenrollment from Air Force Reserve Officer Training Corps (AFROTC) program at the University of Central Florida was mischaracterized and he received an erroneous conditional event (CE) for allegedly deviating from approved travel during his AFROTC enrollment.  He was a pilot candidate and disenrolled for failure to maintain military retention standards; specifically, he allegedly received multiple civil involvements and deviated from approved travel without prior approval.  In fact, the civil involvements were for parking infractions on campus and in the July 2015 revision of AFROTC Instruction 36-2011, parking infractions were eliminated as a basis for civil infractions.  

AFROTCI 36-2011 affords disenrolled cadets the opportunity to appeal the disenrollment decision within one year of the disenrollment effective date.  The instruction language indicates the intent of the drafters was to apply the De Novo standard of appellate review during the appeal process.  Even though this appeal is administrative in nature and not a true “legal” appeal; the only logical conclusion that can be reached from the instruction language that requires new evidence to serve as the basis for change is that the principle of De Novo review is directly applicable to disenrollment decisions.  Attachment 13 to AFROTCI 32-2011, effective July 2015, is the correct and applicable regulatory standard to apply to his case.  Under a De Novo standard of review, this change to the instruction completely negates and renders void CE 3 he received on 6 Oct 14.  The change to the instruction is “new evidence” that was not available to the commander when he issued the CE and since it is now available during the time this case is on appeal (within one year) it must be considered and dismissed.  

Additionally, there is no evidence AFI 36-2002, attachment 3, was considered in the decision to give a CE for the parking infraction on 29 Apr 14.  The AFI requires consideration of the “circumstances surrounding the offense.”  He owned tow vehicles he drove to campus and did not always have the hanging parking tag “visibly displayed.”  He did attempt to resolve the issue by obtaining parking privileges for two vehicles, and was treated as an individual who never had a parking permit when in fact he did.  

With regard to his alleged deviation from approved direct travel, on 19 Oct 14 he traveled to Wright-Patterson AFB (WPAFB) for an initial flying physical examination and returned to Orlando, FL on 22 Oct 14 well within the five days provided in his travel voucher.  He did not deviate from approved directed travel without prior approval.  During the timeframe of his WPAFB travel, he felt it prudent to visit the Marin Eye Center in Novato, CA where he had undergone corrective eye surgery in order to get the most up to date diagnosis and evaluation.  It was during the timeframe of his travel to and from WPAFB he traveled at his own expense to Novato, CA.  He complied with the dates of his ordered travel and did not cause the Air Force any additional expense.  He believe he was authorized to “deviate” after calling the WPAFB finance office and asked if it was permissible.  He only went to CA to safeguard his opportunity to become an Air Force pilot.  He was not an active duty asset at the time he went to CA and as such AFROTC has no authority to dictate his travel as long as he complied with the special travel order.  Therefore, the CE he received is flawed and must be rescinded. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a former AFROTC cadet.  Since he is a former cadet, there is no Master Human Resource Record on file for the applicant in the Automated Record Management System.  

In a letter dated 22 Jun 16, AFROTC/CC notified the applicant’s counsel that she found the evidence provided in the applicant’s appeal was not sufficient to alter the decision to disenroll him and the characterization on his DD Form 785 appropriate.  She noted all appeal cases received are process by an independent office separate from the office that completed the initial disenrollment.  That office provides a thorough and independent review of the member’s file in its entirety.  In addition, she stated HQ AETC/SGPA medically disqualified the applicant for commissioning and all flying classes, effective 13 Apr 15, due to untreated corneal haze.  A copy of the 22 Jun 16 decision is at Exhibit C.  

For more information, see the advisories and letter at Exhibits B, C, and D.

AIR FORCE EVALUATION:

HQ AFROTC recommends no Board action since an appeal is pending; however, after careful review of his case, the evidence provided is not sufficient to alter the decision to disenroll him and recoup his tuition.  

The applicant received four conditional events (CE) and according to AFROTCI 36-2011, triggers initiation of a disenrollment investigation:

1)	CE #1 (12 Dec 13):  Excessive civil involvements.
2)	CE #2 (6 Jan 14):  Receiving “F” final grade.
3)	CE #3 (22 Aug 14):  Excessive civil involvements and failure to report a civil involvement within 72 hours (technically this should have been two separate CEs).  
4)	CE #4 (24 Oct 14):  Failure to meet military retention standards/deviated from approved travel plan.

Under AFROTCI 36-2011, dated 12 Aug 13, the standard was to count parking tickets as civil involvements.  Although the AFROTCI has since changed, at the time of his disenrollment, the policy in effect counted tickets and were specific and valid.  With regard to the third CE he received, the parking ticket was the catalyst for the CE but not the cause.  AFROTCI 36-2011 states, “A total of 10 independent civil involvements, or five independent civil involvements within the previous 18 months, is unacceptable for entry or retention.”  This parking ticket received exceeded the 10 civil involvement limit placing him at a total of 13 tickets, not including the ones that were dropped, dismissed, waived, or “fix-it” tickets.  

Regarding the matter of deviating from directed travel, the applicant was given orders to go directly to his flight physical and then return to the detachment when completed.  He was further told to contact the detachment NCO if changes were necessary and given the NCO’s personal cell phone if he needed to contact the NCO after normal duty hours.  The applicant changed his itinerary without the knowledge or approval of the detachment.  

The characterization on the applicant’s DD Form 785 of “should not be considered without weighing the ‘needs of the service’ against the reasons for this disenrollment” is appropriate for this case and is consistent with other similar cases.  The complete advisory is at Exhibit B.

SAF/MRBB (Remissions) recommends the Board deny his request to waive his tuition recoupment since the applicant has failed to exhaust an administrative avenue of relief prior to requesting relief from the Board.  The applicant has never filed a remission application.  The complete advisory is at Exhibit D.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent copies of the Air Force evaluations to the applicant on 13 Jul 18 for comment (Exhibit E), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant did not exhaust all available avenues of non-judicial relief before applying to the Board.  The Board does not consider applications without documentation showing exhaustion of such avenues of relief.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error or injustice with regard to his disenrollment from AFROTC and his DD Form 785 annotation.  The Board concurs with the rationale and recommendation of HQ AFROTC and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board finds the applicant was afforded full due process during his disenrollment and subsequent appeal in accordance with the governing Air Force instructions at the time.  Therefore, the Board recommends against correcting the applicant’s records.

4.  With regard to his request to waive his tuition recoupment, the Board finds the applicant has not exhausted all available avenues of relief prior to coming to the Board.  In this regard, we concur with the recommendation of SAF/MRBB that the applicant should submit an application to the Remissions Board before seeking relief from this Board.  

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 the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice with regard to his disenrollment and DD Form 785 annotation.  With regard to his request to waive his tuition recoupment, the Board recommends that the applicant be informed all available avenues of administrative relief have not been exhausted, and the application will only be reconsidered upon receipt of documentary evidence indicating that such avenues of administrative relief have been exhausted.  

The application was adjudicated without a personal appearance.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2016-00676 in Executive Session on 3 Oct 18:

Panel Chair
Panel Member
Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Applications, DD Forms 149, w/atchs, dated 16 Feb 16 and 19 Jul 16.
Exhibit B:	Advisory opinion, HQ AFROTC/CC, dated 2 May 16.
Exhibit C:	Letter, HQ AFROTC/CC appeal decision, dated 22 Jun 16.
Exhibit D:	Advisory, SAF/MRBR, dated 9 Feb 18.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 13 Jul 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings for Docket Number BC-2016-00676 required by AFI 36-2603, paragraph 4.11.9.