RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00750

XXXXXXXXXXXXXX	COUNSEL: XXXXXXXXXX
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.   Void and remove all documentation related to the 9 Oct 19 investigation into the circumstances surrounding the disenrollment action initiated against him.

2.  Retroactively, reinstate him into Air Force Reserve Officer Training Corps (AFROTC).

3.  He be commissioned.

4.  Remove any and all impediments from his records that do not allow him to serve in the Air Force or any other branch of service.  

5.  Alternatively, correct or remove the Section IV entry (5. Definitely Not Recommended) on the DD Form 785, Record of Disenrollment from Officer Candidate – Type Training, dated 21 Nov 19.

APPLICANT’S CONTENTIONS

In an 11-page legal brief, the applicant through counsel, contends the evidence relied upon for the applicant’s disenrollment is uncorroborated or otherwise lacks sufficient reliability to justify stripping him of the opportunity to complete ROTC and be commissioned.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former AFROTC cadet disenrolled for failure to maintain military retention standards.

The applicant initially joined AFROTC Detachment 105 at the University of Colorado as a non-contract cadet.  

On 18 Aug 17, the applicant signed his AFROTC program contract.  

In Nov 17, according to documentation submitted by the applicant, he engaged in a one-time consensual sexual intercourse with the wife of another Detachment 105 cadet.  

On 8 Dec 17, the applicant received a Military Conditional Event (CE) for “lack of communication” with the cadre regarding his medical status and for failing to meet various suspense dates for various administrative items.  

On 17 Sep 19, according to documentation submitted by the applicant, the Office of Institutional Equity and Compliance (OIEC) after investigating alleged misconduct (Nov 17, sexual intercourse with a victim experiencing a blackout state) by the applicant, found the applicant not responsible for violating the University’s Sexual Misconduct Policy (Sexual Assault – Non-Consensual Sexual Intercourse).

On 9 Oct 19, Detachment 105 Commander issued a Military CE to the applicant for failure to meet the military retention standards of character, behavior and professional conduct based on allegations he had sexual intercourse with the wife of another AFROTC cadet.  Additionally, on this date, a disenrollment investigation was initiated against the applicant for his failure to maintain military retention standards for character, behavior and professional conduct.  

On 31 Oct 19, the Investigating Officer (IO) issued the disenrollment Report of Investigation (ROI) for AFROTC Detachment 105 Commander.  The IO reported the applicant, under oath, related he had an affair with another cadet’s wife, but that it was a one-time consensual relationship, which he considered a lapse in judgement.  In addition to that interview, the IO provided a synopsis of allegations revealed during witness interviews, which, he opined were relevant to the disenrollment investigation into the applicant’s character, behavior and professional conduct.  

On 13 Nov 19, the applicant provided a response to the Report of Investigation (ROI).  He acknowledged this is a messy and serious situation, but he believed he will be better equipped to help Airmen through false claim situations as these.  He opined he is physically, mentally, and socially prepared to be an officer in the USAF as is shown through his ROTC records and feedback.  

On 17 Nov 19, Detachment 105 Commander, signed AFROTC Form 22, Cadet Personnel Action Request, recommending the applicant be disenrolled, no Extended Active Duty (EAD), and a “5”
(Definitely Not Recommended for future officer training) on the DD Form 785, Record Of Disenrollement From Officer Candidate – Type Training.

On 21 Nov 19, the Commander, AFROTC Northwest Region, signed AFROTC Form 22, concurring with Detachment 105 Commander’s recommendation, and issued DD Form 785 identifying 27 Dec 19 as the date for disenrollment.    

On 27 Dec 19, the applicant was officially disenrolled from AFROTC, under the provisions of AFMAN 36-2032, Military Recruiting and Accessions, para 6.6.1.5, and AFROTCI 36-2011, Cadet’s Guide to Leadership Laboratory (LLAB) Curriculum,  para 16.6.2, failure to maintain military retention standards.  .  

On 12 May 20, in a 9-page legal brief, the applicant through counsel appealed his disenrollment contending the Air Force stands to lose a promising young officer candidate to a morass of hearsay, gossip, personal animus, and uncorroborated evidence.  

On 17 Jun 20, the Commander, Air Force ROTC (AFROTC/CC), advised the applicant the new evidence provided in his appeal, is insufficient to overturn the disenrollment.  Though the OIEC found the applicant not responsible for violating the University’s Sexual Misconduct Policy for non-consensual sexual intercourse, he admitted to a sexual affair with the spouse of another cadet.  The act of adultery is in violation of the Uniform Code of Military Justice (UCMJ), Article 134, General Article, Adultery, and coupled with the aggregate of his unprofessional behavior and conduct throughout his tenure as a cadet does not demonstrate the character, integrity, conduct, and behavior desired of an AFROTC cadet or an Air Force commissioned officer.  

For more information, see the Applicable Authority/Guidance excerpts at Exhibit B, and the advisory with excerpts of the applicant’s record at Exhibit C.

APPLICABLE AUTHORITY/GUIDANCE

AFMAN 36-2032, para 6.6. – Disenrollment or Involuntary Call to Active Duty: AFROTC/CC may disenroll a contracted cadet for: Failure to meet military retention standards.

AFROTCI 36-2011, para 16.6. – Disenrollment Investigation.  Investigations are required for possible disenrollments or dismissal for contract cadets failing to maintain military and academic retention standards.  Cadets who do not meet officer accession standards may still qualify to serve in their enlisted grade and be called to EAD.

AIR FORCE EVALUATION

AFROTC/CC recommends denying the application.  On 27 Dec 19, the applicant was disenrolled from the AFROTC program at the University of Colorado.  He was disenrolled for failure to maintain military retention standards (FTMMRS) – failed to attain the level of maturity expected of an officer candidate due to a lack of good order and discipline pursuant to AFMAN 36-2032, Military Recruiting and Accessions, para 6.6.1.5, and AFROTCI 36-2011, Cadet’s Guide to Leadership Laboratory (LLAB) Curriculum, para 16.6.2.  Specifically, the applicant received a Military Conditional Event (CE) for having sexual intercourse with another cadet’s wife.  This event taken by itself or in aggregate with four previous CEs, was sufficient grounds for disenrollment.  On 12 May 20, the applicant appealed his disenrollment to AFROTC, and was notified of the appeal’s denial on 17 Jun 20.  While the applicant submitted character letters claiming he has matured since the aforementioned CE, two years later, he proposed a foursome with a fellow cadet.  Such conduct does not demonstrate an improved character, therefore, his request should be denied.  

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 10 Aug 21 for comment (Exhibit D), and the applicant replied on 8 Sep 21.  In a 3-page legal brief, through counsel, he contends:

1.	The advisory opinion contains no actual analysis of the issues or evidence, and if the Board adopts the rationale of the advisory opinion, it would run afoul with the Administrative Procedure Act (APA) resulting in arbitrary and capricious decision-making in violation of federal law. 

2.	The advisory opinion is written by the AFROTC/CC., the same individual who was the final review authority of the applicant’s appeal of his AFROTC disenrollment action.  In his BCMR application, specific issues raised were in the appeal process, the AFROTC/CC did not address all arguments raised, did not address the crux of the issue with respect to the CEs the applicant received, and failed to grapple with evidence regarding a core allegation against the applicant.  Counsel opines it would be highly problematic for the Board to rely on an advisory opinion authored by the individual whose action is the very error and injustice the applicant challenges in his AFBCMR application.  In order to meet its obligation under federal law, the Board must undertake a more complete analysis of the issues in this case than the AO has provided.  In support of his rebuttal, specific court cases are cited regarding violation of the APA and not addressing the core allegation.  

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.  After careful review of the evidence, it appears the disenrollment action initiated against the applicant was consistent with the substantive requirements of AFMAN 36-2032 and AFROTCI 36-2011, and was within the AFROTC/CC’s discretion.  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-2021-00750 in Executive Session on 28 Sep 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 14 Sep 20.
Exhibit B:	Applicable Authority/Guidance
Exhibit C:	Advisory Opinion, AFROTC/CC, w/atchs, dated 9 Aug 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 10 Aug 21.
Exhibit E:	Applicant’s Response, dated 8 Sep 21.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings pertaining to Docket Number BC-2021-00750, as required by AFI 36-2603, paragraph 4.11.9.