RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03266 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. The Letter of Reprimand (LOR), issued on 5 June 2012, be removed from his records. 2. References to the LOR in section III and the “5” rating in section IV of the DD Form 785, Record of Disenrollment from Officer Candidate – Type Training, be reviewed and removed from his record. ________________________________________________________________ APPLICANT CONTENDS THAT: He was falsely accused of physical violence and perpetuating falsehoods. In the rebuttal to the LOR, he clearly and concisely explained his innocence. While he provided evidence to the contrary, the LOR was upheld and placed in his file. He appeared before a hearing officer who found that he did not commit the heinous allegations. He believes it is unjust to have an LOR in his record for an allegation he did not commit. Section III of the DD Form 785 states he received an LOR for being involved in a physical altercation with a female cadet and making false statements. It also states he was undergoing a Hearing Review but was disenrolled for academic deficiency prior to sanctions for misconduct. He believes this is unjust due to the fact the hearing officer found that he did not commit the allegations. In support of his appeal, the applicant provides DD Form 785, the LOR and his response and the Findings of Fact. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is a former cadet of the United States Air Force Academy (USAFA). He attended the USAFA from 23 June 2011 through 4 September 2012 when he was involuntarily disenrolled due to academic deficiency. ________________________________________________________________ AIR FORCE EVALUATION: USAFA/JA recommends denial. On 15 June 2012, the applicant received a Letter of Reprimand after an investigation disclosed multiple altercations with a female cadet, unauthorized sexual activity with that cadet and perpetuating a falsehood by telling leadership that she was abducted and assaulted by multiple assailants at the USAFA. On 22 June 2012, disenrollment action was initiated via the Hearing Officer process in accordance with AFI 36-2020, Disenrollment – United States Air Force Academy. While waiting for the Hearing Officer Report and transcript to be drafted, the applicant's case of academic deficiency was heard before the Academic Review Committee (ARC) on 26 August 2013 [sic]. That panel voted 5-0 to recommend disenrollment for applicant's academic deficiencies. On 29 August 2012, the Hearing Officer finalized his report and by a preponderance of the evidence found that the applicant did engage in a physical altercation with the female cadet on 21 June 2013 [sic] and that the applicant had engaged in unauthorized sexual activity at USAFA with that cadet on multiple occasions. However, he did not substantiate the other allegations by a preponderance of the evidence. On 30 August 2012, the disenrollment authority, USAFA/CC, concurred with the ARC recommendation for disenrollment based on the applicant's academic deficiencies. He was disenrolled based on the ARC versus the Hearing Officer action. The USAFA/CC considered the entries in the applicant's cadet personnel file using a "whole person" concept and assigned a DD Form 785 rating of "5” Definitely Not Recommended in section IV (Evaluation To Be Considered in the Future for Determining Acceptability for Other Officer Training). The applicant received an Honorable characterization discharge. The applicant alleges that he was falsely accused of heinous allegations to include allegations of physical violence and perpetuating a falsehood. He is of the position that he clearly and concisely explained his innocence in his LOR response and that the Hearing Officer found that he did not commit the heinous allegations and therefore it is unjust to have a LOR for allegations he did not commit. AFI 36-2907, Administrative Counseling’s, Admonitions, and Reprimands states counseling, admonition and reprimands are quality force management tools that are available to supervisors, superiors and commanders and when properly used, they help maintain established Air Force standards and enhance mission accomplishment. In a memorandum dated 16 August 2013, the Air Officer Commanding (AOC) of the applicant's squadron and issuer of applicant's LOR explained all of her reasoning behind keeping the LOR in effect after having considered the applicant's response to the LOR as well as the Hearing Officer's findings. The AOC thoroughly investigated the infractions listed in the LOR and then drafted the LOR according to the applicable the requirements of AFI 36-2907. The applicant had the right to counsel throughout the LOR, ARC, and Hearing Officer processes. In fact, the applicant was represented an Area Defense Counsels (ADC) stationed at the USAFA. Counsel was made available to the applicant to provide a professional opinion with regard to the election of the rights exercised by the applicant in the presentation of his case. Counsel was also available to consult about what written matters to present in response to each administrative action initiated with the applicant as the respondent. While the applicant argues that he provided evidence that “clearly and concisely explain [his] innocence" and that the Hearing Officer found the applicant "did not commit the heinous allegations'', this is not entirely factual. As stated above, the AOC considered all of this and still determined it appropriate to keep the LOR in place. Further, the Hearing Officer is charged with investigating whether allegations as drafted in the Hearing Officer Letter of Notification occurred by a preponderance of the evidence. When a Hearing Officer fails to substantiate an allegation in a Hearing Officer case it does not necessarily mean that the respondent did not commit said allegations, but rather that the standard of showing the applicant committed those allegations by a preponderance of the evidence could not be established. While the LOR no longer exists as a UIF was not established and the applicant's cadet personnel file is destroyed after 90 days from his date of disenrollment if there are no collateral consequence matters, the references to the LOR in the DD Form 785 are still appropriate. Finally, while the applicant requests that his numerical rating of "5" on the DD Form 785 be reconsidered, the applicant's arguments are without merit and there is no new information that would change the chain-of-command's position that the applicant receive a "5" rating, we do not find it appropriate to have his DD Form 785 rating reconsidered. The applicant was afforded all appropriate rights, including his right to counsel and due process, throughout the LOR, ARC, and Hearing Officer processes. He was given multiple opportunities to succeed at the Academy. He opted not to succeed by continuing in a pattern of misconduct where by breaking USAFA cadet rules and regulations. There is nothing improper in the manner in which his case was ultimately resolved. There are no errors or injustices on the DD Form 785. Section III and Section IV of the document are based on factual descriptions of the applicant's case documenting his cadet record while at the USAFA. The complete USAFA/JA evaluation, with attachments, is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 30 August 2013, for review and comment within 30 days (Exhibit D). As of this date, this office has received no response. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with regard to the applicant’s request to remove the Letter of Reprimand and the “5” rating on the DD Form 785. We took careful notice of the applicant's complete submission in judging the merits of the case. Other than the applicant’s view, we find insufficient evidence that the applicant was denied any rights to which he was entitled. Additionally, we do not find there was an abuse of discretionary authority or that the actions of the USAFA were arbitrary or capricious. As such, we agree with USAFA/JA and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. 4. Notwithstanding the above, we believe some relief is warranted. According to the Findings of Fact dated 29 August 2012, the Hearing Officer noted the evidence failed to show by a preponderance of evidence that the applicant intentionally perpetuated a falsehood. Since the DD Form 785 was accomplished on 12 September 2012, well after the Findings of Fact were published, we believe the statement “…and making a false statement” should be stricken from the DD Form 785. Therefore, we recommend the applicant’s records be corrected only to the extent indicated below. 5. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that the DD Form 785, Record of Disenrollment From Officer Candidate – Type Training dated 10 September 2012, be amended by deleting the words “and making a false statement.” ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-03266 in Executive Session on 22 April 2014, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 1 May 13, w/atchs. Exhibit B. Letter, Applicant's Master Personnel Records. Exhibit C. Letter, USAFA/JA, dated 20 Aug 13, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 30 Aug 13.