RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00844

XXXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXX 

	HEARING REQUESTED: YES	

APPLICANT’S REQUEST

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

2.   His AFROTC scholarship disenrollment debt be waived.  

APPLICANT’S CONTENTIONS

He was the subject of an unlawful anonymous disenrollment investigation and was not permitted to know the witnesses against him or who the alleged victim(s) were.  The investigating officer (IO) did not permit him to call witnesses on his own behalf during his personal hearing.  The IO also violated attorney client privilege he had with his retained civilian counsel.  The ROI contained vague, anonymous rumors and opinions from unknown individuals.

In Sep 18, while a cadet, he met a fellow AFROTC cadet who sent him photos of herself via Snapchat wearing tight leggings and a brassier.  In return, he sent her a single photo of himself wearing underwear.  She asked him not to send any further boxer brief photos.  He respected her request and did not send another photo.  

In Sep 18, he reached out to another cadet to help her transition to AFROTC.  He communicated with her via social media in a platonic and professional way.  She asked him to accompany her to a party.  He arrived at her apartment to find her too inebriated to leave the apartment.  While at her apartment, she grabbed him and attempted to kiss him.  He turned away and rejected her kiss, which was witnessed by friends.  He left the apartment with his friends to attend the party.

During the summer of 2019, he ran into her at the university welcome dance.  She was no longer an AFROTC cadet.  She came to his apartment, undressed and performed oral sex.  They never had sexual intercourse or any other sexual contact.  He did not want the relationship to go any further and she left his apartment feeling rejected.  She never complained to him or made a formal complaint against him.

He gave no thought to the events until May 20 when he was notified he would be the subject of disenrollment proceedings.  It was then he learned he was the subject of an investigation.  He was never contacted or provided an opportunity to tell his side of the story.  

His 6th Amendment right to effective assistance of counsel was violated by hiding the names and circumstances of the ROI dated 26 Jun 20 and the Inquiry Report into Inappropriate Social Media Behavior dated 14 May 20.  He was denied due process law protections under the 5th and 14th Amendments to the Constitution when he was denied the opportunity to be heard and contest the allegations against him.  By virtue of the allegations, he stands to lose the opportunity to become an Air Force officer and lose monetary scholarship.  

The University violated and ignored procedural and Constitutional principles to eliminate a young Jewish man.  On 26 May 20, the appointed IO conducted an investigation into the facts and circumstances of the disenrollment action.  The ROI dated 23 Jun 20 is misleading, biased, violates disenrollment investigation rules and Constitutional principles.  It was nothing more than an effort to build a perfect disenrollment case against the applicant based on hearsay, rumor and opinion.  

On 14 May 20 a report was published in which 20 cadets were interviewed to determine inappropriate use of social media.  The names of the witnesses were redacted and yet the IO accepted the report in his investigation.

On 27 May 20, he received AFROTC Form 10, Disenrollment Action Worksheet for AFROTC Cadets, initiating his disenrollment on 27 May 20 for allegations of sexual assault committed by battery and allegations of sexual harassment and conduct unbecoming an officer candidate.  No provisions relevant to AFROTCI 36-2011, Cadet Operations, were cited and there were no names, dates, times or places related to the alleged misconduct.  

On 3 Jun 20, a hearing was convened.  The applicant’s request to call the 20 anonymous witnesses was denied and he attempted to defend himself against the anonymous and non-specific allegations.  He submitted several character letters.  A second hearing was held on 15 Jun 20.  

The ROI compiled by the IO is in violation of AFROTCI 36-2011, paragraph 16.9, which states all facts cited in the ROI will be supported by attached documentation.  The IO did not abide by the guidance.  The ROI and the redacted witness statements are nothing but opinion based on hearsay and in some cases second and third hand information.  

His counsel during the disenrollment process cites an Army BCMR case where a waiver of over $96,000 in recoupment for a similar case was granted.  The University will gain needed visibility on how it undertakes its duties.  Finally, the Military Religious Freedom Foundation will have the opportunity to investigate.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former United States Air Force Academy (USAFA) and AFROTC cadet.

On 28 Jun 18, the applicant entered the USAFA as a cadet and was discharged on 9 Jul 18 with an entry level separation (ELS) and narrative reason for separation of “Secretarial Authority.”  

AF Form 1056, Air Force Reserve Officer Training Corps (AFROTC) Contract, dated 28 Jan 19, shows the applicant received a 3 year scholarship.  Item 10, Basis for Disenrollment/Result of Disenrollment, states disenrollment from AFROTC for failure to meet standards may subject them to a call to active duty in enlisted status or recoupment of the funds expended on their education.  Additionally, disenrollment from the AFROTC program may jeopardize any future opportunity to obtain a commission in the Armed Forces.   

AFROTC Form 10, Disenrollment Action Worksheet for AFROTC Cadets, dated 25 May 20, shows his detachment commander initiated disenrollment action for failure to maintain military retention standards and breach of the AFROTC contract.  Specifically for allegations of sexual assault and sexual harassment and conduct unbecoming an officer.  

The applicant provides a redacted ROI dated 23 Jun 20.  On 26 May 20, the IO conducted an investigation into the circumstances of the disenrollment action initiated against the applicant.  The ROI shows the following:

	Allegation 1: He committed sexual assault to female students or cadets who were incapable of consenting to the sexual act due to impairment by any drug, intoxicant or other similar substance.  He engaged in sexual activity with [Redacted] during a party.  [Redacted] indicated she did not give the applicant consent because she was very intoxicated and did not remember the sexual activity until he told her about it.  During his personal appearance, he stated he never in his life sexually assaulted anyone.  He also never assaulted or harassed anyone in a non-sexual manner.  

	Allegation 2: He committed sexual harassment by sending unsolicited provocative nude or partially nude photos of himself to female AFROTC cadets and/or students via social media and requested similar pictures from them.  

	Allegation 3:  He committed sexual harassment by battery due to unwanted sexual touching of intimate body parts without consent.  [Redacted] indicated the applicant grabbed her butt several times.  She pushed his hand away but he kept grabbing until after three or four times of pushing his hand away.  He stated she initiated the physical contact between them on the dance floor and he did not make any intentional contact with her the entire night.  She never pushed him, batted his hand away or indicated she was uncomfortable with something he had done.  

	Allegation 4: He committed sexual harassment to female students or cadets by insisting on unwanted pressure for sexual favors and unwanted pressure for dates; making sexual comments, sexual innuendos or stories; sexual comments about a person’s clothing, anatomy or looks, unwanted deliberate touching, leaning over, cornering or pinching and hanging around a person.  

	Allegation 5: He committed underage drinking.  The applicant was approximately 20 years old at the time.

During the course of the investigation there were indications that some cadets and friends informed the applicant about the rumors of his inappropriate behaviors and how his behavior was perceived.  The applicant indicated he was not approached by anyone in the cadet wing about the rumors of his alleged inappropriate behaviors.   

A memorandum for record (MFR) dated 11 Jun 20 summarized the IO’s interview with the applicant.  On 1 Jul 20, the applicant provided the IO his statement.  He requested he be permitted to continue with his AFROTC career.  He stated he conducted himself at all times as a gentleman and future officer.  He never engaged in any involvement or interaction with any woman that was not 100 percent consensual.  He read the ROI and he has no idea who the complainant or witnesses are since it is completely anonymous.  He is innocent of each and every allegation.  He has never sexually assaulted or harassed anyone.  He does not know how to defend himself.  

The applicant provides Army BCMR Case, AR20150006710, in which the board granted partial relief and waived ROTC debt in the amount of $96,922.  The attached e-mail advisory stated that if the documents used as the basis for the disenrollment hearing were not available, the advisory opinion would be impacted to reflect two potential ways ahead.  The first, that the disenrollment be revoked.  The second, the contractual obligations would be waived.  It was stated this was not the preferred method and was rarely used.   

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

APPLICABLE AUTHORITY/GUIDANCE

Per 10 U.S.C. § 9837 and AFI 36-3034, Remission of Indebtedness, ROTC students who fail to complete their training are required to pay their debts and are not eligible to request a remission.   

AFROTCI 36-2011, Paragraph 16.7, Disenrollment Procedures, the detachment commander will initiate disenrollment actions and appoint an IO.  The personal appearance is the cadet’s opportunity to present their case to the IO and they may make an oral statement and prepare evidence to the IO.  The completed ROI is a factual summary of evidence compiled by the IO during the investigation and will be supported by attached documentation.  The IO will not include any opinions, conclusions or recommendations in the ROI.  

AIR FORCE EVALUATION

Holm Center/JA recommends denial.  The investigation was conducted in accordance with Air Force and DOD policy.  The evidence described in the ROI supporting the disenrollment is overwhelming.  The applicant was provided with reasonable notice and an opportunity to prepare a response to the allegations.  

The applicant was disenrolled as a cadet from AFROTC based on overwhelming amount of evidence he sexually harassed and behaved inappropriately with several other AFROTC cadets,  The disenrollment on 13 Aug 20 was in accordance with AFROTCI 36-2011, paragraph 5.2,  Military Retention Standards, for failure to maintain moral character, behavior, professional conduct and relationships becoming of an officer candidate, and AFROTC 36-2011, paragraph 16.6.5 and AFM 36-2032, Military Recruiting and Accessions, 27 Sep 19, paragraph 6.6.1.5, failure to meet military retention standards. 

The AFROTC conducted an inquiry and investigation.  Several witnesses reported they would not provide information if they could be identified by the applicant.  Based on the advice of legal counsel, the names of the witnesses were redacted and a redacted copy of the ROI and attachments were provided to the applicant.  The applicant alleges the ROI is misleading, biased, violates disenrollment investigation rules and Constitutional principles in large part due to the fact that evidence provided to him was redacted and he was denied the opportunity to call the anonymous witnesses during his personal appearance.  The AFROTC Disenrollment Guide states the purpose of the hearing is to discuss issues pertaining to the investigation.  The investigation is a non-adversarial process to gather facts and is an extended opportunity for the cadet to dispute their failures which triggered the investigation or to submit mitigating/extenuating circumstances. A copy of the final ROI with attached documentary evidence is to be provided to the cadet.  Paragraph 16.8, states the personal appearance is the cadet’s opportunity to present their case directly to the IO.  The cadet may provide other individuals to offer testimonial evidence on their behalf.  

Unlike the Air Force, the Army conducts adversarial board proceedings for disenrollment investigations.  The USACC Pamphlet 145-4, lists the rights of cadets at such hearings and includes the right to “cross-examine and object to the testimony of government witnesses” as well as the right to “call witnesses and otherwise introduce evidence.” 

The complete advisory opinion, with attachments, is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 18 Aug 21 for comment (Exhibit D), but has received no response.

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 Holm Center/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant contends he was the victim of an unlawful disenrollment investigation; however, the Board finds the applicant has provided insufficient evidence to indicate this to be the case.  Based on the evidence and the presumption of regularity, it appears the investigation, the ROI and the disenrollment process were conducted properly and in accordance with AFROTCI 36-2011.  Counsel also contends the applicant’s Constitutional due process rights were violated and illegal actions were taken against him based on the applicant’s Jewish religion and ethnicity.  In this respect, the Board notes the applicant was not charged with any crimes, there was no evidence he was discriminated against or denied any constitutional or due process rights.  The evidence clearly shows an investigation was initiated based on allegations of sexual harassment and inappropriate behavior by the applicant towards AFROTC cadets.  The IO documented his findings in the ROI and the applicant was afforded his opportunity to dispute the findings per AFROTCI 36-2011 and the AFROTC Disenrollment Guide.  Thus, the Board finds the applicant’s disenrollment was within his commander’s authority and discretion and in accordance with DOD and Air Force policy.  The applicant also cites an Army BCMR case as precedent to grant the applicant’s request; however, the Board finds the case and board processes is not similar.  Moreover, the applicant signed AF Form 1056, AFROTC Contract, on 28 Jan 19, acknowledging disenrollment from AFROTC for failure to meet standards may subject him to disenrollment and recoupment of the cost of education.   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-2021-00844 in Executive Session on 11 Aug 21 and 20 Oct 21:

 , Chair, AFBCMR 
 , 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 3 Oct 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C: Advisory Opinion, Holm Center/JA, w/atchs, dated 13 Aug 21.  
Exhibit D: Notification of Advisory, SAF/MRBC to Applicant, dated 18 Aug 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.