RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-01492 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ _ APPLICANT REQUESTS THAT: 1. His DD Form 785, Record of Disenrollment from Officer Candidate – Type Training, be corrected in Section IV to reflect a numerical rating of: “1” (Highly Recommended), “2” (Recommended as an average candidate, or “3” (Should not be considered without weighing the “needs of the service” against the reasons for this enrollment), rather than “5” (Definitely not recommended). 2. His reentry (RE) code be changed from “4L” (Separated commissioning program) to one that will allow him to reenter the military. ________________________________________________________________ _ APPLICANT CONTENDS THAT: His DD Form 785 contains falsehoods and inflammatory allegations that were vindictively selected to create a picture of a sexual predator. In addition, his numerical rating of “5” on his DD Form 785, Section IV, is not the appropriate rating. In support of his appeal, the applicant provides a statement from his counsel, a personal statement; and, copies of his Letter of Reprimand (LOR), Air Force Office of Special Investigations (AFOSI) Report of Investigation (ROI), Parachutist Badge Award order, No Contact Order, Article 15 documents, disenrollment documentation, DD Form 785, educational debt documentation, Wage Garnishment documents, discharge documents, Colorado Criminal History Information Sheet, Report of Conduct, Memorandum for Record, and numerous character references. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: On 29 June 2006, the applicant entered the USAFA to begin basic cadet training. On 19 April 2010, he was notified that discharge action was being initiated against him for a pattern of cadet and Uniform Code of Military Justice (UCMJ) infractions. The allegations included the applicant having created inappropriate and offensive emails, multiple allegations of him sending offensive emails (to include nude photos) using a government server, having a bottle of alcohol in his cadet dormitory room, wrongfully engaging in an unprofessional relationship, and violation of a no contact order. The hearing officer appointed to investigate these allegations, found by a preponderance of evidence, that the applicant had committed five of the six allegations that were brought against him. In June 2010, the Commandant considered the Hearing Officer’s Report, the transcript of the proceedings, and the applicant’s matters; and, elected to forward the case to the USAFA Superintendent with a recommendation that the applicant should be disenrolled with a general (under honorable conditions) discharge. On 25 June 2010, after considering the Commandant’s recommendation along with the aforementioned documents, the Superintendent agreed with the recommended disenrollment. On 12 August 2010, the USAFA Superintendent, after considering the applicant’s written matters regarding how he would like to fulfill his Active Duty Service Commitment (ADSC), recommended to the Secretary of the Air Force (SecAF) that the applicant should monetarily reimburse the Government in fulfillment of his ADSC. On 14 October 2010, SecAF determined the applicant should be ordered to monetarily reimburse the United States Government for the cost of his educational expenses incurred while at the USAFA. The applicant was ordered to pay $168,738.00. ________________________________________________________________ AIR FORCE EVALUATION: USAFA/A1A recommends denying the applicant’s request to change his RE code. A1A states that changing the applicant’s RE code to anything other than “4L” would conflict with current Department of Defense (DoD) and Air Force guidance. The only RE code that applies, by verbiage alone, is “separated commissioning program eliminee.” Since the USAFA is a commissioning program, the RE code “4L” is appropriate regardless of the reason for separation. The complete A1A evaluation, with attachments, is at Exhibit C. USAFA/JA recommends denial. JA states that in this case, Section III of the DD Form 785 correctly states the circumstances surrounding the applicant’s factual situation at the time of his disenrollment from the USAFA. The applicant was in fact disenrolled due to his own misconduct. Though his counsel argues that the applicant emailing nude photographs of himself to a thirteen year old girl is an unsubstantiated allegation, the fact is the applicant’s commander considered the applicant’s written response to his LOR and decided to keep the LOR in effect. Regardless of the recipient’s age, it is inappropriate and against regulations for an officer candidate to be emailing photos of his genitalia over the government server. While the applicant’s written response may explain his confusion about the recipient’s age, the fact remains that he emailed explicit material over a government computer server to a child. Further, the applicant did receive an Article 15 action for substantiated specifications of his unprofessional relationship with a USAFA preparatory cadet candidate and for violating a no contact order from his command. That Article 15 action was reviewed by USAFA/JA and found to be legally sufficient. It would not be consistent with USAFA’s process and procedure to simply state that the applicant received an Article 15 without stating the specifications as the he proposes. Finally, the applicant was on aptitude probation at the time of his disenrollment. Nothing in Section III or IV of his DD Form 785 is inaccurate. The language on the form was proposed by the USAFA Deputy Staff Judge Advocate (SJA) and approved by the USAFA Superintendent in the staff package. The language was not selected because the Deputy SJA was seeking vindictive language meant to create a picture of the applicant as a sexual predator, but rather because the language succinctly and accurately captured an assessment of the facts that led to the applicant’s disenrollment that would fit in the limited space on the DD Form 785. The processing of his case and DD Form 785 was handled no differently than any other cadet disenrolled from the USAFA. The applicant also argues that the numerical rating of “5” is not the appropriate rating and that he should have his DD Form 785 amended to reflect a “1,” “2,” or “3.” The guidance from Air Force Instruction (AFI) 36-2012 states a rating of “5” should be assigned to those whose aptitude or personal behavior have consistently failed to meet the minimum standards. The applicant does have a documented history of serious problems as shown by the hearing officer having substantiated five of the six allegations brought against the applicant at his disenrollment hearing. Further, substantiated specifications for punitive articles of the UCMJ in an Article 15 show the applicant’s involvement in some illegal activity and there is evidence of sexual misbehavior in that he did email nude photos of himself over a government server. As the applicant was also on aptitude probation at the time of the disenrollment, a “5” rating is further supported because there was evidence of deficiency in conduct or aptitude as part of his record. His entire chain of command supported the “5” rating based on the applicant’s entire record. The applicant’s attorney states the applicant did not have the right to counsel at his hearing officer review. This simply is not true. While the hearing officer proceedings is an administrative, non-adversarial hearing and the applicant’s counsel is not physically allowed in this fact-finding venue, the counsel has many opportunities to stay engaged in the process. In fact, the applicant was represented by an Area Defense Counsel (ADC) throughout the hearing process and all of her arguments were addressed by the Hearing Officer and through a legal review before the applicant’s case was even presented to the Commandant or Superintendent for their disenrollment action. The applicant’s attorney also alleges that it was wrong for the hearing officer to not consider the over twenty character statements the applicant submitted in the course of his hearing officer proceedings. In accordance with AFI 36-2020, the hearing officer is the fact finding forum charged to substantiate the allegations by a preponderance of evidence. Since the character references did not go to the facts, they were not relevant to the hearing officer’s findings; however, the Commandant and Superintendent did consider each of the character references as they use the “whole person” concept review when they make their recommendations and decisions on a case. The applicant, through his counsel, accurately points-out that the date on his DD Form 214 and his Request and Authorization Reassignment /Separation – Air Force Military Form should be the same. However, the applicant alleges the date on his DD Form 214 is inaccurate. In fact, his DD Form 214 is accurate and the proper date on both forms is 14 October 2010. Shortly after Special Order of the Air Force (SO-AF) 142, dated 9 May 2011, was published, the erroneous 14 October 2011 separation effective date was discovered. An amendment to SO-AF 142, dated 24 May 2011, was generated to correct the administrative error of the wrong year being reflected on the original separation order. The applicant also notes that his Parachutist Badge he earned while at the USAFA is not reflected on his DD Form 214. USAFA/A1A has verified that he did in fact earn the badge. They have generated a DD Form 215, Correction to DD Form 214, Certificate of Release or Discharge from Active Duty, to correct this error. In addition, they corrected his record to reflect his award of the Air Force Organizational Excellence Award. The complete JA evaluation is at Exhibit D. ________________________________________________________________ _ COUNSEL'S REVIEW OF AIR FORCE EVALUATION: It is an unrealistic expectation that his client had to present his own case in a hearing of officers. An attorney is necessary to adequately defend a respondent in a hearing like this. In this case, the author of the Air Force advisory asserts the allegation that his client sent nude photographs of himself over the Government network. This allegation was substantiated by the Hearing Officer despite testimony of an AFOSI Agent indicating that AFOSI could not say whether or not the emails were sent over the government network. In addition, the DD Form 785 is misleading and vindictive. Considering the time of the email incident relative to his client’s separation from the Academy, 21 months later, it is clear that this allegation has no place on the DD Form 785 as a reason for disenrollment. Listing it is simply vindictive. The description on the DD Form 785 lists incidents of misconduct that led to his Article 15 punishment and the separate incident involving emailing photographs to women out of town. His client received other letters of caution or reprimand while in cadet status, but none of them were listed on the DD Form 785. Simply put, there were other incidents of misconduct that could have been listed without overreaching like this. His client respectively requests that the Board correct his DD Form 785, Section III, to reflect only that he was the subject of an Article 15 action while in cadet status; and, to alter the evaluation in Section IV to reflect either a “2” or “3.” This document, as is, precludes his client from being able to serve in the military in any capacity. His ultimate goal and the requested changes may allow him that opportunity. The counsel’s complete rebuttal is at Exhibit F. ________________________________________________________________ _ 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 an injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. We note the applicant’s contentions; however, we are not persuaded by the evidence and counsel’s arguments that the actions taken against the applicant were arbitrary or capricious. It appears the RE code given the applicant is correct and that he has not been treated any differently than any other similarly situated cadet disenrolled from the Academy. Additionally, the Board also concluded the USAF Academy Superintendent made a fully qualified decision regarding the applicant’s dismissal. While the impact of these actions on the applicant’s career may be regrettable, we do not find the actions serve to make the applicant the victim of error or injustice. Therefore, in the absence of evidence to the contrary, we do not find it in the interest of justice 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 issue 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. ________________________________________________________________ _ Although chaired the panel, in view of her unavailability - has agreed to sign as Acting Panel Chair. The following members of the Board considered AFBCMR Docket Number BC-2013-01492 in Executive Session on 16 January 2014, under the provisions of AFI 36-2603: , Vice Chair , Member , Member The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2013-01492: Exhibit A. DD Form 149, dated 19 Mar 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, USAFA/A1A, dated 22 Apr 13, w/atchs. Exhibit D. Letter, USAFA/JA, dated 9 May 13. Exhibit E. Letter, Counsel, dated 26 Jun 13, w/atch. Exhibit F. Letter, SAF/MRBR, dated 6 Jan 14. Acting Panel Chair 6