RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-02189

XXXXXXXXX	COUNSEL:  XXXXXXXXXXX
	
 	HEARING REQUESTED:  YES

APPLICANT’S REQUEST

1.  His disenrollment from the Air Force Reserve Officer Training Corps (AFROTC) be set aside 

2.  The mark down on his DD Form 785, Record of Disenrollment from Officer Candidate – Type Training, Section IV, Item 3 be removed.

APPLICANT’S CONTENTIONS

In a nine-page brief, through counsel, the applicant makes the following contentions:

On 28 November 2018, an investigation was initiated into the facts and circumstances of the disenrollment action initiated against the applicant. On 18 December 2018, the Report of Investigation (ROI) was completed and served on the applicant.  The ROI used as the basis for his disenrollment is incomplete, biased, violates numerous disenrollment investigation rules found in AFROTCI 36-2011, Cadet Operations, and appears to be nothing more than an embarrassing effort to build and perfect a disenrollment case against the applicant.  Specifically, (1) the Investigating Officer (IO) failed to comply with AFROTCI 36-2011, paragraph 11.5.4, by failing to include a summarization of the applicant’s oral testimony at his personal appearance; (2) the IO was not impartial and unbiased when he performed his duties as evidenced by his intentional omission of the facts that the applicant was exonerated of the Driving While Impaired (DWI) charge; (3) the IO failed to address the critical legal issue of whether the disenrollment authority, as the Professor of Aerospace Studies, was legally authorized to conclude that the applicant drove while impaired when the district court judge conclusively and objectively concluded otherwise; and (4) the IO failed to comply with AFROTCI 36-2011, paragraph 16.9, when he did not cite facts in his ROI and include supporting attached documentation.

The ROI states the applicant received his second conditional event (CE) for “driving while impaired (DWI) as determined by the detachment commander.”  This is an incorrect and misleading statement as the applicant was not a scholarship cadet when he was served his first CE for an academic deficiency. AFROTCI 36-2011, Table 5.3 makes clear that academic CEs can only be given to “scholarship cadets during terms for which AFROTC scholarship funds are provided.”

In addition, no consideration was given to the fact that the civilian police officer who arrested the applicant erred in his decision to charge him with a DWI when there was absolutely no evidence whatsoever of impaired driving.  The charge was dismissed due to insufficient evidence and the arrest was expunged from his record.  Notwithstanding, the AFROTC registrar committed a manifest injustice when he chose to disenroll him.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former AFROTC Cadet (E-3).

On 23 August 2017, the applicant enlisted in the Air Force Reserve and enrolled in AFROTC. 

According to AFROTCI 36-2011, paragraph 16.2, the AFROTC commander (AFROTC/CC) has the authority to disenroll any contract cadet at any time with or without cause, and paragraph 16.6.2 authorizes disenrollment for “Failure to maintain military standards necessary to become a commissioned officer.”

Based on the documentation provided by the applicant and analysis of the facts, the following information is provided:

On 28 November 2018, according to AFROTC Form 10, Administrative Disenrollment Action Worksheet for AFROTC Cadets, the detachment commander notified the applicant that disenrollment proceedings had been initiated against him for failure to maintain military retention standards and breach of the AFROTC contract.  Specifically, he received an academic CE for a grade point average deficiency and a military CE for a DWI citation.  

On 14 December 2018, the applicant attended his disenrollment hearing and made an oral statement for consideration.  He requested the presence of a university official and a paralegal during the oral statement and both were present throughout.  On 18 December 2018, he was provided a copy of the completed ROI.

On 28 February 2019, the applicant was disenrolled from AFROTC under the provisions of AFI 36-2011, Air Force Reserve Officers’ Training Corps Program, paragraph 2.4.1.5 and AFROTCI 36-2011, paragraph 16.6.2 for failure to maintain military retention standards when he was cited by a police officer for driving while under the influence of alcohol and in possession of an open container of alcohol.

On 27 March 2019, the applicant appealed the disenrollment asserting that there were errors with the investigation, and citing the expungement of the arrest.  

On 23 July 2019, the AFROTC/CC considered the applicant’s appeal requesting his disenrollment be set aside.  After careful review of the submissions, including:  (1) assertions of errors in the investigation; (2) the assertion that the first conditional event was improper; and (3) the dismissal of the charges for which the arrest occurred, the commander denied the appeal.
For more information, see the excerpt of the applicant’s record at Exhibit B.

AIR FORCE EVALUATION
AFROTC/CC recommends denying the application.  Based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice.  In June 2019, the applicant appealed the disenrollment decision through the AFROTC appeals process.  The appeal was denied, due to no new or compelling information being presented necessitating the original decision be overturned.  In the applicant’s current request, no new documentation was presented by his counsel that would warrant the previous decision by the AFROTC/CC be overturned.  The applicant’s “Evaluation for consideration in the future for determining acceptability for other officer training” is marked a three, stating that the individual “Should not be considered without weighing the “needs of the service” against the reasons for disenrollment.”  The applicant is ineligible to continue in the AFROTC program; however, he may apply to Officer Training School (OTS) or the other services’ ROTC programs to fulfill his dream of becoming a commissioned officer.   

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 17 April 2020 for comment (Exhibit D), and the applicant replied on 12 May 2020.  In his response, counsel reiterated that the applicant should have never received a CE for his academic deficiency, because at the time he was not a scholarship cadet.  In addition, he should not have received the second CE, as he did not drive while impaired.  The erroneous charge was withdrawn with prejudice by the county judge after the prosecutor realized the alleged conduct did not rise to the level of a violation of state law.  To be safe, the applicant filed a motion to expunge the arrest and the motion was granted.  He should have never received either CE and he should have never been disenrolled from AFROTC.  

The manifest injustices committed in this case against him can only be corrected by overturning the disenrollment and allowing him the opportunity to go back to the AFROTC program and continue progressing toward his goal of becoming an Air Force officer.

The applicant’s complete response is at Exhibit E.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or 
injustice.  The Board concurs with the rationale and recommendation of AFROTC/CC and finds a preponderance of the evidence does not substantiate the applicant’s contentions. The applicant contends he was unjustly disenrolled from AFROTC based on an improper CE for academic deficiency and an erroneous DWI charge, which was later dismissed.  However, we note AFROTC conducted an investigation, in which the applicant was afforded a personal appearance, and considered all available evidence prior to making a final decision.  In addition, the applicant’s case was reconsidered in AFROTC’s appeals process.  The Board found AFROTC acted within their discretionary authority and the applicant has not provided evidence to warrant the AFROTC/CC decision be overturned.  Therefore, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence 
not already presented.

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-2019-02189 in Executive Session on 30 June 2020:

, Panel Chair 
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 27 March 2019.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFROTC/CC, dated 14 April 2020.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 17 April 2020.
Exhibit E:	Applicant’s response, dated 12 May 2020.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.