RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-01426 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His disenrollment from the United States Air Force Academy (USAFA) be reversed and he be reenrolled. ________________________________________________________________ APPLICANT CONTENDS THAT: Through counsel, the applicant submits a 17-page brief outlining his background and the events that led to his disenrollment from the USAFA. They contend that his disenrollment was premised on the arbitrary, capricious and unjustified conferral of a failing grade in a calculus course, after being accused of cheating, that his teacher concedes he otherwise would have easily passed. He should have never been assessed a failing grade in the summer term of calculus. USAF Academy Instruction 36-3534, Review and Disposition of Deficient Cadets, addresses the procedures for documenting and assessing penalties for violations of academic standards. It states that when a cadet has violated academic standards, the decision authority will carefully review all the relevant evidence. The accused cadet will be notified in writing and given the opportunity to respond. Additionally, the matter will be referred to the Cadet Honor System for further proceedings. The instruction further provided that after reviewing all relevant evidence, the decision authority would determine if there was a violation of academic standards. This determination must be based on a preponderance of the credible evidence. It is apparent the decision authority, i.e., the Math Department Chair, failed to comply with several important aspects of the relevant instructions procedures when deciding whether or not the academic standards were violated. Most importantly, he failed to reach a conclusion supported by a preponderance of the credible evidence. As such, the decision to fail him during the summer term of calculus should be reversed and with it, the decision to disenroll him. There is no evidence that the Department Chair ever took note of the fact that two of the three instructors could not see if his eyes were open or shut. Nor is there any basis to conclude that the Department Chair ever paused to consider that a USAFA body established to render findings relating to cheating reached a decision after hearing from all of the witness, at least those who chose to appear and subject themselves to cross-examination. Instead, he rendered a decision motivated by a desire to avoid offending his staff. The departmental politics, coupled with embarrassment that his department had just been victimized by a cheating scandal outweighed thoughtful, individualized consideration. Additionally, had he not been subjected to disparate and peculiar treatment during the 2012 fall semester, his cumulative GPA would have been above 2.0. This would have negated the basis to disenroll him. As previously noted, each of the three episodes during this semester almost certainly alone was responsible for his cumulative GPA falling two one-hundredths of a point below the Academy’s 2.0 threshold for good standing. While it is impossible to literally prove a negative, it is a certainty that these three episodes, collectively, dragged him down below the line. The ARC that disenrolled him in January 2013 could have considered any or all these episodes and could have concluded that disenrollment was not required. They should have considered the effect each played on his cumulative GPA. Instead, a 20-year-old college sophomore, with no legal or other adult assistance, had no possible way of knowing he could have brought these matters to the ARC’s attention. This error-by-omission can be corrected now. He requests the Board step into the shoes of the ARC and render a decision that his overall performance and the probability of successful completion of academic program justify his retention at the USAFA and reverse the decision to disenroll him. In support of his appeal, the applicant provides a 17-page legal brief, GPA charts, USAFAI 36-3534, USAFAI 36-3523 and several character statements. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is a former cadet who attended the USAFA from 23 June 2011 through 6 February 2013. His narrative reason for separation is listed as Secretarial Authority with service characterized as honorable. The remaining relevant facts pertaining to this case are contained in the letter prepared by the Air Force office of primary responsibility and listed at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: USAFA/DF recommends denial. The applicant met an ARC at the end of the summer 2012 to consider him for disenrollment. The ARC recommended him for disenrollment; however, the USAFA Superintendent elected to retain him based on the results of his end of summer ARC. He continued to struggle academically during the fall 2012 semester and met another ARC that convened on “24 January 2012.” The ARC panel voted 5-0 to recommend the applicant for disenrollment. They commented that they found he demonstrated manipulative and dishonest behaviors. The applicant’s Air Officer Commanding (AOC) commented that the applicant struggled to keep his head above water. The USAFA Superintendent concurred with the recommendation of the ARC and the applicant was disenrolled. The applicant alleges that he received an average grade on his first exam, an A on the second and then he sat for his final. Math 142, in fact, had three major tests and then a final exam. He scored a 69% (C-) on the first exam, 58% (F) on the second exam and 77% (C) on the third exam. The contention that the instructor accused him of putting his head down on the desk in order to peek at his neighbor’s answers is inaccurate. The instructor made it very clear that the copying occurred while he was sitting up. The applicant never told his instructor that he was ill. They only learned of this illness through this request. The assertion that the Math Department decided to fail the applicant is not accurate. The academic penalty assessed against the applicant was a zero on the final exam and not a grade of F in the course. Had the applicant’s grades been sufficient prior to the final exam, he would have passed the course. The Math Department attempted to schedule the Wing Honor Board (WHB) a week earlier than it convened so that one of the instructors (the second instructor) that observed him cheating could be there. He was not there due to his temporary duty assignment (TDY) to Squadron Officer’s School. Therefore, the WHB did not consider all relevant evidence. The Math Department Chair, however, did weigh in this instructors testimony when deciding whether an academic penalty was warranted. The Math Department Chair met with the applicant and his mother and explicitly stated a preponderance of the evidence was sufficiently compelling. As a result, he had an obligation to assess an academic penalty. The Chair also points out that he has made decisions contrary to the recommendation of his faculty on numerous occasions. The applicant implies that a cumulative GPA of 2.0 is sufficient to avoid meeting an ARC; however, this is inaccurate. ARCs also recommend cadets for disenrollment who have cumulative GPAs over 2.0 when, for example, a cadet twice fails the same core course or a series of increasingly deficient number of semester GPAs exist. The applicant also contends that assessing him a failing grade was an arbitrary, capricious and unjustified decision. The applicant’s second failure in Math 142 was because he earned a 57.1% in the course, which falls below the 60% threshold necessary to pass the course. On 12 July 2012, during the Math 142 final examination, three separate instructors independently observed the applicant copying from another cadet. After the first instructor observed the applicant cheating, she left the classroom to notify the Course Director. While she was away, another instructor proctored the exam. The second instructor was not informed of what the first instructor had observed. The instructors learned they both observed the applicant cheating and asked a third instructor to watch the classroom. Again, without being informed of who was suspected of cheating, the third instructor also reported he observed the applicant cheating. The 14 questions on the multiple choice portion of the final exam required calculations to determine the solution. When the applicant’s final exam and scratch paper were turned in, there was no work related to the multiple choice questions on the scratch paper indicating the applicant did not attempt to solve any of the problems. All of the instructors observed the following behavior: The neighboring cadet would work through a problem and record his answer on his scantron. The applicant would then look over and copy the answer onto his scantron. Of the 14 multiple-choice questions, the applicants were the same as the neighboring cadet for 13 of the questions, even though seven of them were wrong. The one answer that was different had originally been marked the same but was then erased and changed on the scantron. Out of the 51 cadets enrolled in that course, no one else had more than 10 matching answers. USAFAI 36-3534 states that decision authorities, who are the department heads for cadet matters, determine whether a cadet has violated academic standards. When it appears there is a violation, the decision authority will carefully review all relevant evidence and, if warranted, notify the individual of the allegations and offer them the opportunity to respond. The Head of the Department of Mathematical Sciences notified the applicant by letter that his final grade would be determined by him based on input by the instructor, course director and the applicant’s response, if provided. The applicant was informed that he also had the right to provide written input and supporting documentation, if deemed appropriate. It was further stated that he was highly encouraged to take advantage of this opportunity and provide a response. Despite the guidance, the applicant provided a single paragraph as follows: During my final exam for Math 142, I was laying my head down during the multiple-choice section facing my neighbor. Due to the close proximity between my neighbor and me, and my low posture, it appeared as if I were cheating off of him. It is a coincidence that many of our answers ended up being the same. I did not cheat on the calculus final. I had no reason to given that fact that my grade was high enough to pass the class the second time around even if I had performed poorly on the exam. Knowing this, I guessed many of the multiple choice questions as well. The applicant failed to address the fact that three different instructors observed him looking at his neighbor’s exam. His behavior occurred while he was sitting up, not when his head was on his desk. Further, the experts on probability and statistics state that the odds of having 13 out of 14 questions match perfectly, particularly when seven of the answers were incorrect, is much too the same to be explained by coincidence or random chance. In making his decision, the Department Head (decision authority) must determine that an individual violated academic standards based on a preponderance of credible evidence. Proof beyond reasonable doubt is not required. Preponderance of the evidence is a lower standard than proof beyond a reasonable doubt, which is the standard used in the Honor System. This explains the different findings regarding the WHB and the academic penalty decision. It is also worth note that the academic penalty determination is made independently of any associated honor proceedings. Next, the applicant contends he was only being recommended for disenrollment as a result of a failing grade during the summer term. The applicant’s record required a mandatory review for the ARC at the end of the summer 2012 based on his repeated failure of the core course, Math 142 (Calculus II) and sequential semesters of deficient academic performance, semester and cumulative GPAs below 2.0. Upon reviewing the applicant’s record, which is the normal process for the ARC, the ARC members took note of the applicant’s history of probations in conduct, aptitude, athletic and academic and the negative comments from his previous instructors. As an example, his fall 2011 Math 141 instructor reported that after he earned a D at mid-semester, he appeared more disillusioned with the concepts and more apathetic toward board work. His spring 2012 Math 142 instructor wrote, after repeated reminders to schedule Extra Instruction (EI), he has attended zero EI sessions. He earned an F in that course. The applicant’s Chemistry 100 instructor wrote that he did minimal effort on the lab data sheets, receiving an F on half of them. The members of the ARC were gravely concerned with the pattern of negative behaviors, as well as, his demonstrated lack of aptitude (repeated failure) in a foundational core course, Calculus II. The five members of the ARC unanimously recommended that he be disenrolled for academic deficiency. The applicant was afforded the opportunity to appeal in person and in writing: which he did. The ARC members reviewed and considered his written package and interviewed him in person. They also interviewed his Academic Advisor and his AOC. The applicant’s academic situation was also getting worse. His first semester was deficient with 1.96 GPA and the second semester GPA was 1.91. Based on the totality of the applicant’s academic deficiencies and the ARC’s whole person concept, the five members again voted to recommend he be disenrolled. The applicant raises questions as to why he was assigned to an instructor’s course who accused him of cheating. The math department was undermanned by five permanent party faculty members during the fall 2012 semester; therefore, the department had to leverage every available instructor. However, this instructor was TDY for the first half of the semester. This is important because at the mid-term progress report the applicant had a 65.6 (D). Once this instructor took over the course, the applicant achieved a slight improvement of 67.8 (C-). The applicant further contends that had he not been the subject of disparate and peculiar treatment during the fall 2012 semester he would not have received an unwarranted failing grade in calculus and his cumulative GPA would have been 2.0. He alleges his Math 142 instructor treated him differently than the other students. The Equal Opportunity (EO) Office initiated a complaint clarification on 6 February 2013. The basis of the complaint was whether this instructor treated the applicant differently and discriminated against him due to his race and national origin. The EO office found this allegation unsubstantiated. The facts showed that the applicant contacted the instructor once via e-mail for an EI. While the instructor did not respond via e-mail, he did follow-up with the applicant in class the next day. The complete USAFA/DF evaluation, with attachment, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Through counsel, the applicant states that the Mathematics Department’s accusation that he cheated on the summer 2012 final exam, an accusation rejected by the Honor Board, was neither supported by a preponderance of the evidence nor did it make sense. Hence, he requests the cascade of consequences that followed that flawed decision be reversed. He reiterates that his cumulative GPA 1.98, was two one- hundredths of a point below the retention threshold of 2.0. He asserts that he would have surpassed this threshold had he not been the victim of several troubling episodes involving two members of the Academy’s faculty and administration. Accordingly, the Board should exercise its broad equitable power to excuse his near miss of the 2.0 GPA and direct his re- enrollment. Rather than falsely admit to cheating and save his Academy career, he risked immediate expulsion by taking his case to the Honor Board, who exonerated him. This is not only persuasive evidence that he did not cheat; it is also a powerful demonstration of his insistence, at great personal risk, of behaving honorably by not falsely admitting to misconduct. When the Academy states academics and honor are different, they completely miss the point. His willingness to run the gauntlet of an Honor Board is compelling proof of his truthful and honorable character and should trump the Academy’s flawed accusation to the contrary. Counsel states the Academy has changed its position on several issues, specifically, the cheating accusation. The Academy now asserts that the initial instructor made it clear that the copying occurred only when he was sitting up. This position is being advanced for the first time. Next, the name of the third instructor who allegedly observed him cheating had not been previously heard. This instructor had not provided a written statement. The Academy’s changing account of the events compromises the presumption of regularity. Additionally, the Academy asserts that it is statistically unlikely that his multiple-choice answers could have agreed with his fellow cadet unless one of them was copying from the other particularly in view of the fact that his answers were not associated with any scratch paper calculations. As previously noted, his grade going into the final exam was sufficiently high. He did not need a high mark in order to easily pass the course. The multiple-choice portion of the exam was worth approximately 30% of the final exam and represented the most difficult portion of the exam. Therefore, he quickly considered each question, eliminating all but two of the possible answers and then, without extended calculation, guessed between the two, giving himself a 50% chance of guessing correctly. He submits the evidence supporting the Academy’s accusation of cheating insubstantial and largely lacking in credibility. His demonstrated honorable behavior should trump a weak accusation. The applicant’s complete response, with attachment, 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 an error or injustice. We have thoroughly reviewed the available evidence of record pertaining to the applicant’s request that his disenrollment from the USAFA be reversed and he be reenrolled. Through counsel, the applicant asserts that disenrollment was due to the USAFA assessing him a failing grade during the summer 2012 Math 142 (Calculus II) course after being accused of cheating on the final exam. He further argues that the decision authority, when considering whether or not he cheated on the exam, failed to comply with the instruction by not reviewing all of the instructions relevant procedures. Finally, he contends the USAFA failed to consider the findings of the body of the USAFA, the Wing Honor Board, whose sole purpose is to render findings relating to cheating allegations. Notwithstanding the applicant’s view, we find insufficient evidence that he was denied any rights to which he was entitled during the ARC’s review and findings process. With regard to the allegation of cheating on his final exam, again, we find the applicant was afforded due process not only through the Math Department, but also through the Wing Honor Board, who, as counsel points-out found in favor of the applicant. The applicant received a personal hearing with the decision authority, who explained to him that the preponderance of the evidence was sufficiently compelling to find that he had cheated on the final exam. As a result, he was assessed an academic penalty for the final exam, not the course. While counsel maintains the applicant’s GPA was merely two one-hundredths of a point below the retention threshold, this was the applicant’s second review before the ARC. Additionally, the review was not only due to the applicant’s failure to attain a 2.0 GPA; the ARC was also mandated due to the applicant’s second failure in the same calculus course. With regard to the applicant’s contention that he was the victim of disparate and peculiar treatment due to his race and national origin, we find that the Equal Opportunity Office conducted extensive interviews and found that the applicant was not denied extra instruction in calculus and the complaint was unsubstantiated. Based on the totality of the evidence before us, it appears that responsible officials applied appropriate standards in the conduct of the Academic Review Committee 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. Additionally, we do not find the applicant’s disenrollment was arbitrary or capricious and find 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 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-2013-01426 in Executive Session on 18 June 2013, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-01426 was considered: Exhibit A. DD Form 149, dated 21 Mar 13, w/atchs. Exhibit B. Letter, Applicant's Master Personnel Records. Exhibit C. Letter, USAFA/DF, dated 24 Apr 13, w/atch. Exhibit D. Letter, SAF/MRBR, dated 30 Apr 13. Exhibit E. Letter, Applicant’s Response, undated, w/atch. Exhibit F. E-mail, Additional Info, dated 14 Jun 13. Panel Chair