RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-00344

XXXXXXXXXXXX	COUNSEL:  XXXXXXXXXXXX
	
	HEARING REQUESTED:  NOT INDICATED

APPLICANT’S REQUEST

1.  Reverse her disenrollment from the United States Air Force Academy (USAFA).

2.  Vacate the Wing Honor Board (WHB) finding that she violated the honor code by tolerating cheating.

APPLICANT’S CONTENTIONS

Counsel, on behalf of the applicant, contends in Nov 18, the applicant was found to have violated the Honor Code and was placed on probation.  Since then, she has worked hard to become the kind of leader the Air Force would be proud to call an officer.  The applicant would not risk her dreams of becoming an Air Force officer, with a diploma from USAFA, by condoning her partner’s cheating on a group coding project in Computer Science 110.  The Wing Honor Board’s finding that she tolerated cheating is out of character and without reliable supporting evidence.  To add insult to injury, the USAFA failed to follow its own procedures.

From a young age, the applicant had a passion for gymnastics.  She was accepted to the USAFA and participated as an athlete on the gymnastics team.  The events leading to the applicant’s first probation started after she injured herself and required surgery.  She was no longer able to compete in gymnastics, a passion integral to her self-identity.  Feeling adrift, coupled with the rigors and new lifestyle expected of cadets at the USAFA had a stressful effect on her.  The applicant’s attitude and grades suffered and this is when her bad decisions led her into trouble.  The applicant’s athletic trainers only focused on her physical health and did nothing to ensure she was coping mentally and emotionally with the psychological trauma that resulted from her injury.

As a result, in Nov 18, the applicant and some other cadets heard about a party, where they drank underage, before she indicated her discomfort and wanted to leave.  Everyone was invited to a cadet’s parents’ home, where the applicant and the cadet kissed.  Later, when questioned about it, the applicant originally lied before realizing it was the wrong thing to do.  She then volunteered the truth. When she was questioned to conclude whether she should be retained, the applicant expressed remorse for her actions and determined to be a credit to the USAFA and the Air Force.  After a hearing on 8 May 19, before the Cadet Sanction Review [sic] Panel, the applicant was placed on Honor Probation for not fully disclosing the events of the night she attended the Nov 18 house party.

The applicant and another cadet worked as partners to complete an assigned Computer Science 110 coding project.  Because the other cadet’s computer did not support the software, the entire assignment was completed on the applicant’s computer.  The applicant completed the first Gate Check of the project, creating the framework and foundation, while the other cadet coded the rest.  When the applicant’s project partner had difficulty with coding, he received a copy of another cadet’s code via the applicant’s email.  The applicant was in the room, and provided the spelling of her last name when she was asked, but did not otherwise converse or interact with the other cadets at that time because she was preoccupied on her phone.  The applicant was responsible for turning the project in, but afterward, did not know if the documentation statement that summarized the help received, was attached.  She did turn in the documentation statement, but the instructor told her it was too vague.  The applicant asked her partner to fix the documentation statement and she turned it in to the instructor again.

Two allegations were levied against the applicant for which she appeared before a Wing Honor Board:  tolerating and lying.  She was accused of tolerating cheating by her partner, and lying about asking her partner to cover for her because she was already on probation.  However, the applicant only received one honor allegation notification indicating she was accused of tolerating.  She did not find out about the lying charge until 3 Oct 19.  Counsel continues, providing a detailed accounting of the Wing Honor Board process while disputing procedure, witness statements, and the Wing Honor Board findings.

Counsel contends the USAFA failed to abide by the rules it promulgated, stating the entire process leading up to, including, and after the Wing Honor Board, was sullied with procedural errors and should be dismissed.  Additionally, the Honor Board package contained multiple errors, failed to include documents explicitly referenced, and referenced documents that did not exist, while further stating there was no legal review of the package, or if there was, it was insufficient and inadequate.  Counsel also contends the Uniform Code of Military Justice and the applicant’s due process rights were violated when she was interrogated during the clarification process.  

Finally, counsel contends officer witnesses failed to remain impartial, coloring their testimony with their own opinions and biases, which amounted to a conflict of interest and undue command influence, and the process culminating with the Wing Honor Board failed to apply the reasonable doubt standard.  Counsel contends the abundance of procedural errors as well as biased testimony constitute cause to reverse the applicant’s disenrollment and strike the determination of an honor violation for tolerating from her record. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged USAFA cadet.

On 10 Jul 20, the applicant was furnished an honorable discharge, under Separation Authority:   United States Air Force Academy Instruction 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 and 13 days of 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 application.  The applicant has produced no additional evidence or compelling arguments to warrant reversal of the USAFA Superintendent’s disenrollment decision.  The applicant’s case is legally sufficient and her disenrollment was well within the discretion of the USAFA Superintendent.  Accordingly, the applicant should not be reinstated into officer training.  

As a foundational matter, the applicant’s procedural due process rights were observed at all steps of the disenrollment process.  When the applicant was previously found to have violated the Honor Code, rather than the Commandant of Cadets and the USAFA/CC using her misconduct to pursue disenrollment, the applicant’s leadership instead chose to offer an opportunity to demonstrate her potential for continued service.  The applicant was placed on probation, which she later violated after having served approximately half of that six-month probation by tolerating the cheating of another cadet. Her case was heard by the Wing Honor Board and the Wing Honor Board Sanction Recommendation Panel, who substantiated the toleration allegation, beyond a reasonable doubt, and recommended her disenrollment.  When her disenrollment was again considered by USAFA/CC, the applicant was afforded the opportunity to respond, and did so.  Nonetheless, USAFA/CC, operating within his scope of authority, chose to disenroll the applicant after considering the recommendations of the applicant’s entire chain of command.  At every step along the way, the applicant was given ample opportunity to advance her case and protect her interests.

The applicant, through counsel, details at length her disagreement with the statement of others and her promotion of those character witnesses who vouched for her future potential.  It must be pointed out that the Wing Honor Board is not a criminal trial and does not abide by standards of criminal procedure and process or the Manual for Courts-Martial, nor must it do so in order to make appropriate determinations as to whether an individual violated the Honor Code.  In this particular case, the Wing Honor Board considered the evidence presented and made certain determinations.  After those determinations, the applicant was given the opportunity to advance her case for retention before the USAFA/CC, who ultimately disagreed with the applicant’s position.  The applicant’s claims that she was deprived of substantive due process are without merit.  Disenrollment from the USAFA is an administrative, not criminal, process.  In accordance with the Cadet Wing Honor Code Handbook, the standard of proof is “beyond a reasonable doubt” for a Wing Honor Board determination of an honor allegation.

Finally, the applicant describes at length her feelings of being “alone” and “ostracized” by this process and the absence of athletic competition in her life.  However, those emotions do not forgive what were clearly conscious decisions by the applicant to violate the standards set for her conduct.  The USAFA Peak Performance Center (PPC) has provided a break-down of all the helping agencies and programs available to assist not just athletes at the USAFA, but all USAFA cadets.  It is up to each USAFA cadet, the applicant included, to voluntarily decide to get the help they need from the PPC.  Ultimately, the applicant was given multiple opportunities to overcome her deficiencies and failed to do so.  She was deservedly disenrolled due to her consistent failure to abide by the reasonable standards set for her and terms that she took an Honor Oath to uphold.

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 27 Oct 21 for comment (Exhibit D), and the applicant replied on 22 Nov 21.  In his response, counsel, on behalf of the applicant contended the advisory opinion characterizes the arguments of counsel as minor and seeks to blame the applicant for not obtaining help because there is a plethora of programs available at the USAFA for cadets. 

It also argues that “[i]t is not unreasonable to demand that officer candidates abide by state laws by refraining from underage drinking,” clearly suggesting that the applicant had gotten drunk partying while underage at the USAFA, when, in fact, she had consumed, on a single occasion, a sip of alcohol.  While this may be technically factually accurate, to characterize the applicant as engaging in underage drinking is a gross exaggeration.  In context, the advisory opinion does exactly what the applicant did – it blatantly misrepresents the record, suggesting she was drinking and violating state laws that prohibit such conduct.

The advisory opinion, again, misleadingly argues that “[i]t is not unreasonable to demand that officer candidates abide by military standards by refraining from unprofessional relationships.”  Yet, there has never been an accusation leveled against the applicant that she was engaged in an unprofessional relationship.  She kissed an upperclassman at this same party; hardly facts constituting fraternization.  Facts matter, and integrity matters.  For the advisory opinion author to mischaracterize the record in a congressionally sanctioned process is frankly astounding; for a newly-minted cadet to do so is entirely forgivable. 

Additionally, the advisory opinion misleadingly argues the Honor process is not a criminal trial, but rather is an administrative hearing.  The standard of proof under existing Air Force regulations is the exact same for both criminal trials under the Uniform Code of Military Justice and the Honor Board; proof beyond a reasonable doubt.

Finally, the advisory opinion observes the minor clerical errors raised by counsel were largely not errors, but rather misunderstanding of someone unfamiliar with the USAFA honor code process and procedure.  The submission to the Board eviscerated the process, procedure, and conclusion to disenroll the applicant, and stands virtually unrebutted by the advisory opinion perfunctory analysis.  For the foregoing, complete relief should be afforded.

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, to include the applicant’s rebuttal, the majority of the Board concludes the applicant is not the victim of an error or injustice.  The majority of 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, the applicant was afforded due process via the Wing Honor Board, and the resulting disenrollment was within the USAFA Superintendent’s discretion.  Therefore, the majority of 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 majority of 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-2021-00344 in Executive Session on 10 Nov 21 and 28 Dec 22:

, Chair, AFBCMR
, Panel Member
, Panel Member

A majority of the panel voted against correcting the record.  XXXXXXX voted to correct the record and provided a minority opinion (Exhibit F).  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 7 Jan 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, USAFA/JA, w/atch, dated 17 Jun 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Counsel, dated 27 Oct 21.
Exhibit E:	Applicant’s Response, dated 22 Nov 21.
Exhibit F:	Minority Opinion, dated 27 Jan 22.

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.