RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-03011

xxxxxxxxxxxxx	COUNSEL:  XXXXXXXXXXXXX
	
	HEARING REQUESTED:  YES
	
APPLICANT’S REQUEST

Immediate reinstatement as a cadet in good standing in the United States Air Force Academy (USAFA).

APPLICANT’S CONTENTIONS

Counsel, on behalf of the applicant, contended she was involuntarily disenrolled from the USAFA without being afforded her constitutional rights.  The applicant’s disenrollment was the culmination of multiple due process and regulatory violations, and was contrary to United States Air Force policy.

Additionally, counsel, on behalf of the applicant, contended the USAFA neglected to follow its own rules, whereby it failed to inform the applicant of her disenrollment prior to initiating proceedings against her.  Citing Air Force Cadet Wing Instruction 51-201, paragraph 4.20.1., “…the decision to disenroll a cadet shall not come as a surprise to the cadet…”, counsel contended the applicant was never informed she was at risk of failing probation, nor was she ever informed that she had, in fact, failed probation.

Counsel, on behalf of the applicant, further contended the applicant’s disenrollment failed to conform to her constitutionally protected right to procedural due process; specifically, the applicant was not provided prior notice of the disenrollment action, or the opportunity to adequately defend herself against the allegations.  Counsel contended these actions were in violation of the United States Constitution, which requires a person to be notified of any action which seeks to deny that person of life, liberty, or property, the opportunity to be heard, and requires a neutral decision maker to preside over the matter.   The applicant was not afforded these basic rights; as such, her disenrollment was in violation of the United States Constitution and must be reversed.

Counsel, on behalf of the applicant, also contended the applicant’s disenrollment was contrary to substantive due process, as the applicant was never afforded a presumption of innocence, as guaranteed to her by the Fifth Amendment of the United States Constitution.  Rather, the applicant was presumed to have made the statements that formed the basis for her disenrollment, and was required to prove that she did not.  The shifting of the burden from the complaining party to the accused is an egregious and abhorrent violation of the applicant’s right to substantive due process, and is contrary to long established jurisprudence.  As such, the applicant must immediately be reinstated in the USAFA in order to correct these reprehensible errors and injustices.

Finally, counsel, on behalf of the applicant, contended the applicant desires nothing more than to be afforded an opportunity to complete all necessary requirements in order to commission as an officer in the United States Air Force; she is more than capable of successfully graduating from the USAFA and fulfilling her duties as a commissioned officer.  But for the egregious violations of the applicant’s constitutionally protected rights, the applicant would still be attending the USAFA, and would be scheduled to graduate in the near future.  The applicant respectfully asks the Board to expedite her application as any further delay will place her future on hold and prevent her from commissioning with her peers.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged USAFA cadet.

On 5 Aug 19, the applicant was furnished an honorable discharge, under Separation Authority:   United States Air Force Academy Instruction (USAFAI) 36-3504, Disenrollment of United States Air Force Academy Cadets, with Narrative Reason for Separation:  Secretarial Authority, Separation Code:  JFF, and credited with 2 years, 1 month, and 7 days active service.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION

USAFA/JA recommends denying the applicant’s request for reinstatement, as a cadet in good standing, to the USAF Academy.

During the fall of 2017, an honor investigation opened alleging the applicant cheated on four separate Weekly Knowledge Tests, in Aug and Sep 17, with the intent to receive an unfair advantage.  On 10 Jan 18, a Cadet Sanctions Recommendation Panel (CSRP) convened, as the applicant admitted to having committed the acts and having the requisite intent for the allegations.  On that same day, the CSRP found the applicant committed the allegations of cheating and maintaining an intent to cheat.  The applicant was retained by the Commandant of Cadets and placed on honor probation.

The applicant began honor probation on 1 Feb 18.  As part of the probationary process, the applicant was briefed on multiple occasions about the terms of her probation, to include the requirement to remain in the USAFA Cadet Area until the end of her six-month probation.  On 17 Feb 18, the applicant violated her honor probation by going to the USAFA Community Center without authorization.  The applicant was again provided an opportunity to overcome her failures.  On 26 Feb 18, the applicant signed a Loss of Cadet in Good Standing letter, acknowledging she was to remain in the USAFA Cadet Area in order to fulfill the terms of her probation.  However, on 2 Jun 18, the applicant again violated probation sanctions by going off base to a Chick-fil-A restaurant.

On 12 Jun 18, a Midpoint Evaluation Panel (MEP) convened to assess the applicant’s progress on honor probation, and concluded the applicant was not maintaining sanctions, nor was she grasping the concepts and goals of honor probation.  The MEP recommended disenrollment.  In response, the applicant submitted a personal memorandum, 29 character references, and other materials.  Within her personal memorandum, the applicant admitted to cheating on her knowledge tests but asked that her probation violation be excused and that she be retained.  Thereafter, the Honor Chairman, the applicant’s Academy Military Training Non-Commissioned Officer, her Air Officer Commanding (AOC), her Group AOC, and the Deputy Chief of Special Actions recommended the applicant be disenrolled from the USAFA.  

Nonetheless, on 7 Nov 18, the Superintendent directed the applicant be retained in the Cadet Wing in a suspended disenrollment status.  In accordance with USAFAI 36-3504, the Superintendent, as the disenrollment authority, elected to grant the applicant an additional six months of probation and to afford her time to show she could abide by applicable rules and regulations.

On 11 Apr 19, during a probation mentoring session with her AOC, the applicant made several disrespectful and unprofessional comments about the USAFA, the Superintendent, and the AOC.  As a result, the applicant received a Letter of Reprimand for disrespectful and unprofessional behavior.  

On 16 May 19, the USAFA Cadet Wing notified the applicant of her failed probation.  On 6 Jun and 10 Jun 19, USAFA/JA served the applicant with notification that the Cadet Wing recommended she be disenrolled for failure to abide by the terms of her suspended disenrollment.  On 19 Jun 19, after being given an extension to file responsive matters, the applicant submitted her request for retention.  On 5 Aug 19, after reviewing all matters presented (including the applicant’s memoranda), the Superintendent directed the applicant be involuntarily disenrolled for failing the terms of her suspended disenrollment.

In accordance with USAFAI 36-3504, the Superintendent may disenroll cadets for conduct, to include minor disciplinary infractions.  The Superintendent may also disenroll cadets who fail in conduct and/or aptitude probation.  Here, the applicant clearly demonstrated deficiencies in both regards.  Not only did she cheat, she failed to abide by the terms of her probation – not once, but twice.  Moreover, the terms of the disenrollment were not onerous—the applicant received an Honorable discharge with no requirement to reimburse the government for the educational benefits she had received at USAFA.  

As a foundational matter, the applicant’s procedural due process rights were observed at all steps of the disenrollment process.  The applicant’s case was heard by the CSRP, and after the CSRP found the applicant committed the allegations, she was retained and permitted a period of honor probation.  The applicant was informed of the terms of this probation and afforded regular reviews of her compliance therewith, to include an MEP.  When the applicant failed to abide by the terms of her probation, the Superintendent again permitted her a chance to correct her behavior by placing the applicant on suspended disenrollment. During her suspended disenrollment, the applicant was afforded regular reviews of her compliance therewith, to include a probation mentoring session with her AOC.  Instead of utilizing the mentoring session to improve her behavior, the applicant acted with disrespect and a lack of professionalism.  As a result, and on 16 May 19, the Cadet Wing informed the applicant of a notice of her failed probation.  Again, on 6 Jun and 10 Jun 19, this office informed the applicant she failed to abide by the terms of her suspended disenrollment.  The applicant was given nine days to respond to that notice, and she submitted a request for retention on 19 Jun 19 (with an accompanying memorandum from her attorney).  Thereafter, the applicant was disenrolled.  To claim that the applicant was “surprised” by her disenrollment, as stated by her counsel in this application, defies logic, common sense, and the procedural facts of this case.

Furthermore, the applicant’s claims she was deprived of substantive due process are without merit.  Disenrollment from the USAFA is an administrative, not criminal, process.  In accordance with USAFAI 36-3504, the standard of proof is “the preponderance of the evidence.”  The evidence amply shows the applicant failed to abide by the standards in effect at the USAFA.  Not only did she admit her own acts of cheating, the applicant clearly and consistently violated the terms of her probation.  It is more likely than not the applicant’s behavior merited disenrollment; thus, the Superintendent’s decision should not be disturbed.

Federal courts have consistently held that, in the context of military separation or disenrollment, affording a respondent the “right to be heard” requires only the opportunity to respond to a notice of separation or disenrollment, unless there is a significant property interest or deprivation involved (e.g. an “Under Other Than Honorable Conditions” discharge characterization).  For instance, in Golding v. United States, 48 Fed. Cl. 697, the court noted that plaintiff (a midshipman) “cannot demonstrate a property interest in either the Naval Academy or military service.”  The court in Golding also cited Holley v. United States, 124 F. 3d 1462, in which the Federal Circuit Court held that a probationary officer is not entitled to a hearing when his or her administrative separation is being determined.  Ultimately, due process is a function of property and liberty interests.  Here, the applicant has been deprived of neither.  She has been deprived only of opportunity, an opportunity which she freely abandoned by repeatedly violating the standards of the USAFA and the expectations of her as a potential officer in the United States Air Force.

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 15 Jun 21 for comment (Exhibit D), but has received no response.

AIR FORCE EVALUATION

The advisory opinion was amended to remove administrative errors.

The complete amended advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the amended advisory opinion to the applicant on 17 Jun 21 for comment (Exhibit F), and the applicant replied on 14 Jul 21.  In his response, counsel, on behalf of the applicant, contended the advisory opinion wrongfully posits the applicant was afforded due process, was notified of her dismissal in accordance with applicable instructions, and was in fact guilty of the underlying offense, which resulted in her dismissal.  Counsel further contended the advisory opinion’s insistence that the applicant engaged in disrespect despite no credible evidence indicating as such renders the opinion arbitrary and capricious.

 Counsel, on behalf of the applicant, again contended the applicant’s separation from the USAFA was a culmination of multiple due process violations, and was contrary to the USAF and USAFA’s own rules and regulations regarding disenrollment of cadets.  Additionally, the underlying allegation of disrespect is without merit.  The applicant was presumed guilty and then forced to prove her innocence.  The advisory opinion perverts the material facts of this matter and ignores the injustices endured by the applicant, while it simultaneously erroneously concludes the applicant failed to abide by the terms of her probation.

Additionally, counsel contended the advisory opinion posits the applicant’s alleged failure to abide by the terms of her suspended disenrollment justified her disenrollment.  However, it wrongfully states the applicant acted with “disrespect and a lack of professionalism” during her mentoring session on 11 Apr 19.  The resulting Letter of Reprimand (LOR) consists of two brief paragraphs, was drafted on 29 Apr 19, and signed on 7 May 19, with the applicant acknowledging receipt on 10 May 19.  In contrast, a Record of Individual Counseling completed on 11 Apr 19, is wholly void of any information to suggest the applicant engaged in inappropriate behavior during that counseling session.

Counsel, on behalf of the applicant, contended such disrespectful conduct would be documented immediately following its occurrence, but was dated 18 days after the purported misconduct, creating substantial credibility issues.  Despite clear indications that no such statements were made by the applicant, it was concluded otherwise without providing justification.

Additionally, counsel contended the allegations of disrespect were inconsistent with the applicant’s view of her AOC.  A review of the applicant’s journal entries from the following day indicate she looked up to her AOC, was inspired by her actions, and sought to emulate them.  Counsel further contended the AOC repeatedly, intentionally, and vindictively mischaracterized several conversations in order to portray the applicant in an unfavorable light.

In addition, counsel, on behalf of the applicant, contended the advisory opinion points to the previous honor code violation as justification for the applicant’s disenrollment while ignoring the fact that she was already punished for these actions, was placed on a suspended disenrollment status, and they were two distinctly separate issues.  Counsel continued that the allegations in the LOR were predicated upon hearsay, and cannot be substantiated by the requisite burden of proof.  Additionally, the advisory opinion concluded the applicant was afforded due process; however, she was not properly notified with the requisite level of specificity.  Rather, the applicant was merely informed she made disrespectful comments during a mentoring session that violated Article 133 of the Uniform Code of Military Justice (UCMJ), and this behavior violated the terms of her probation.  Counsel contended the alleged violation of Article 133, UCMJ, extended the reach of that article to conduct it was not intended to touch, providing references to court cases in support of this interpretation.  Counsel, on behalf of the applicant, concluded that had the applicant, in fact, expressed her personal opinion, her speech was protected under the United State Constitution and should not form a basis for her enrollment.

Counsel further contended the applicant did not receive an on-the-spot correction from the AOC, who waited over two weeks before formally documenting the alleged misconduct, even though regulations require such conduct be immediately documented.  Further, the AOC approved the applicant’s leave request on 25 Apr 19, making it unreasonable to believe the AOC would approve leave if the applicant had made disrespectful comments or was about to fail on probation.  The Academy Handbook clearly mandates a cadet who is at risk of failing probation be notified; this never occurred.

Finally, counsel contended, if the applicant had made the purported comments, the USAFA failed to consider multiple extenuating and mitigating circumstances, rendering the decision to disenroll the applicant contrary to the policies of the armed forces, referenced in the July 2018 Undersecretary of Defense guidance to various Discharge Review Boards and Boards for Correction of Military/Naval Records, which states, in part, “…it is consistent with military customs and practices to honor sacrifices and achievements, to punish only to the extent necessary, to rehabilitate to the greatest extent possible, and to favor second chances in which individuals have paid for their misdeed.”  In the year prior, guidance was issued to the various military review boards that acknowledged, “…mental health conditions…inherently affect one’s behaviors and choices causing veterans to think and behave differently than one might expect.”  The applicant had unexpectedly lost her mother just a few month prior to her purported disrespectful comments; she was clearly struggling emotionally as demonstrated by her documented visits to mental health professionals.  Secondly, the applicant spent over 530 days confined or restricted to certain areas as a result of her probation.  Such a prolonged period of confinement/restriction can result in underlying mental health conditions and cause an individual to behave in a manner that is an aberration of character.  Further exacerbating the applicant’s mental health condition was the decision to deny lifting the applicant’s sanctions and her request for a year turnback to allow her sufficient time to overcome her extreme emotional trauma.  The administrative record is wholly void of any indication that these mitigating factors were considered by the USAFA.

In conclusion, counsel, on behalf of the applicant, summarized the advisory opinion failed to address the arguments set forth in the applicant’s petition, the USAFA’s failure to conduct an independent inquiry into the allegations against the applicant renders their decision to disenroll her arbitrary and capricious, and finally, had the applicant made the purported comments, they were an exercise of her constitutional rights and should not form the basis for disenrollment.  Finally, counsel contended the failure to consider substantial mitigating circumstances was a clear error this is inconsistent with the policies and guidance referenced above.

The applicant’s complete response is at Exhibit G.

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, to include the applicant’s rebuttal response, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of USAFA/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  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-2020-03011 in Executive Session on 29 Jun 21 and 5 Aug 21:

, 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 18 Aug 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion (Original), USAFA/JA, dated 14 Jun 21.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 15 Jun 21.
Exhibit E:	Advisory opinion (Amended), USAFA/JA, dated 14 Jun 21.
Exhibit F:	Notification of advisory, SAF/MRBC to applicant, dated 17 Jun 21.
Exhibit G:	Applicant response, atchs, dated 14 Jul 21.

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.