RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  99-00780
            INDEX CODE:  104.00

            COUNSEL:  FRED L. BAUER

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be reinstated to the United States Air Force Academy (USAFA).

Upon reinstatement and any  subsequent  graduation  and  commissioning
from the USAFA, he be awarded a date of  rank  of  second  lieutenant,
effective 27 May 1998 (the same day  held  by  his  classmates),  with
backpay.

By amendment, he be released from his active duty  service  commitment
to serve three years as an enlisted member of the Air Force, or, if  a
release from all obligations is not possible,  instead  of  an  active
duty service commitment, he be allowed to pay back the  value  of  his
Air Force Academy education.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was disenrolled from the USAFA on 29 Sep 98 based upon  a  decision
by a Cadet Honor Board that he lied.  The alleged lie was nothing more
than an  honest  misunderstanding  regarding  two  documents  that  he
mistakenly believed two other cadets had signed.  He was removed  from
the Academy on 6 Apr 98, just weeks before his scheduled commissioning
and graduation on 27 May 98.

In  support  of  his  request,  counsel  submits  a  legal  brief  and
additional  documents  associated  with  the  issues  cited   in   his
contentions.  These documents are appended at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Available records reflect that applicant entered the U. S.  Air  Force
Academy on 30 Jun 94.

On  12  Jan  98,  the  applicant  was  notified  that  he  was   being
investigated for violating the USAF Academy  Honor  Code  as  follows:
Lying by saying that C2C F--- and C3C M--- had signed covenants not to
sue when, in fact, they  had  not;  and  lying  by  listing  only  two
passengers on the predeparture checklist when, in fact, he knew  there
would be four (date of incident was 8 Nov 97).  He was advised of  his
rights under the Cadet Wing Honor System.  On 13 Jan 98, the applicant
did not admit to violating the Honor Code and requested  his  case  be
reviewed, and if necessary, forwarded to a Wing Honor Board (WHB);  he
did not waive his right to consult legal counsel and did not waive his
right to remain silent.

On 5 Feb 98, a  Wing  Honor  Board  (WHB)  convened  to  consider  one
allegation  that  the  applicant  lied  to  the   Aero   Club   safety
investigator about whether  or  not  he  had  two  of  his  passengers
complete the required legal forms.  The members of the WHB  found  the
applicant  in  violation  of  the  USAF  Academy  Honor  Code  on  the
allegation that he had obtained signed covenants not to sue.  The case
was forwarded to the Commandant for review and sanctioning.

On 11 Mar 98, the applicant was notified  of  the  recommendation  for
disenrollment by the commandant of cadets and the  Commandant’s  Honor
Sanctions Options to either resign or appeal.  In accordance with  AFI
36-2020 and after seeking legal counsel, applicant elected to appeal.

Following a legal review of the proposed disenrollment, on 3  Apr  98,
the United States Air Force Academy (USAFA) Superintendent forwarded a
recommendation  to  the  Secretary  of  the  Air  Force  (SAFPC)  that
applicant be separated from cadet status, granted an educational delay
of one year if requested, and subsequently called to active  duty  for
three years in enlisted status as a senior airman  for  completion  of
his Active Duty Service Commitment (ADSC).

On  29  Sep  98,  the  Secretary  of  the  Air  Force   approved   the
recommendation of the United States Air Force  Academy  Superintendent
to disenroll applicant and directed that  he  be  honorably  separated
from cadet status, transferred to the Air Force Reserve and ordered to
active duty for a period of three years.

The relevant facts pertaining to this application are contained in the
letter  prepared  by  the  appropriate  office  of  the   Air   Force.
Accordingly, there is no need to recite these facts in this Record  of
Proceedings.

_________________________________________________________________

AIR FORCE EVALUATION:

The Staff Judge Advocate, HQ USAFA/JA, stated that the  applicant  was
disenrolled from the Air  Force  Academy  on  29  Sep  98  for  having
violated the cadet wing honor code.  JA indicated that the  procedures
by which the applicant was disenrolled were  conducted  in  accordance
with  all  applicable  Air  Force  and  Academy  regulations  and  all
considerations of due process and fairness.

In the Fall of 1997, the applicant was scheduled to lead a  number  of
aircraft in a flyover of a football  game  at  the  Academy.   On  the
paperwork he  completed  to  take  possession  of  the  aircraft,  the
applicant listed himself and his co-pilot as the only two persons that
would be flying in the plane.  As the applicant and his co-pilot  were
about to get into the plane for the flyover, two  of  the  applicant’s
friends arrived and got into the plane.   The  flyover  was  performed
without incident;  however,  since  taking  passengers  who  were  not
reported on the pre-flight  documents  was  a  violation  of  airfield
safety policies, an official reported the incident.  The applicant had
updated the preflight paperwork to reflect the two extra persons,  but
there were no signed “covenants not to  sue.”   The  applicant  stated
that he had the two individuals sign the covenants  and  that  he  had
placed the  covenants  on  the  clipboard  with  his  other  preflight
documents.  The two cadets in question stated that they did  not  sign
covenants and that the applicant had not mentioned  the  covenants  at
all that morning.  A Wing Honor Board was convened and the Board found
that the applicant had lied about the covenants.  The Academy chain of
command recommended disenrollment and the Secretary of the  Air  Force
agreed and took action in September 1998.

JA stated that in the administrative action of disenrollment, the  law
requires  the  applicant  be  given  due  process  before  he  can  be
disenrolled.  JA believes that the  applicant’s  case  record  reveals
ample evidence that the applicant was given  more  than  the  required
minimum due process.

JA’s  review  of  the  applicant’s  record  reveals  that  there   was
sufficient valid evidence to support  the  Wing  Honor  Board’s  (WHB)
conclusion.  The evidence presented to the WHB convinced  the  members
beyond a reasonable doubt that the applicant had lied.   The  standard
of proof in a WHB proceeding is just one more evidence of the  efforts
of the Academy to  ensure  that  cadets  are  given  a  fair  hearing.
Applicant’s submission does not provide any  evidence  to  show  undue
influence or bias on the part of any member of the WHB.

JA stated that the Academy is satisfied that  the  applicant  received
more than  the  required  due  process  considerations  and  that  his
expulsion from the Academy was  not  unduly  harsh.   The  applicant’s
entire  disenrollment  process  was  conducted  in   accordance   with
applicable Academy and Air Force regulations.  Accordingly,  JA  urges
the Board to deny all relief requested by the applicant.

A complete copy of this evaluation is appended at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel reviewed the advisory opinion and indicated that the  numerous
procedural due process violations were not addressed.  Counsel  stated
that even though a cadet is apprised of the charges  against  him  and
permitted a defense, the hearing must still be “fair.”   The  advisory
writer mentioned the fact that  the  applicant  was  apprised  of  the
allegations against him, afforded the right to present written matters
to the honor board, call witnesses before the  board,  offer  his  own
testimony before the board, and had  the  right  to  seek  counsel  in
preparation of his  defense.   Having  afforded  the  applicant  these
opportunities, the USAFA did not  then  have  license  to  breach  his
[applicant’s] due process rights during the honor board and post-honor
board proceedings.  By doing so, the USAFA rendered  the  hearing  and
the post-honor board proceedings un-“fair.”

Counsel’s response is appended at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The General Law Division, HQ USAF/JAG, reviewed  counsel’s  contention
regarding procedural due process violations and also responded to  the
applicant’s request to  be  released  from  his  Active  Duty  Service
Commitment (ADSC) or in the alternative be allowed  to  pay  back  the
value of his Air Force Academy education if not allowed  to  serve  on
active duty as an officer.

With regard to counsel’s objections to the presence of a  member  from
the SJA’s staff attending the Academy Board meetings, JAG stated  that
a JA representative attends all Academy Board meetings, at the request
of the Superintendent, to provide legal advice  when  requested.   The
representative is without vote and never advocates  a  position  on  a
case.   Thus,  JA’s  attendance  at  the  meeting  did  not  prejudice
applicant and applicant’s concern is unfounded.

Applicant also reiterates his objections to the Academy  Board  raised
in his 5 Jun 98 letter that the Academy Board was improperly  convened
and did not afford applicant the right to submit  matters  before  it.
JAG  indicated  that  the  role  of  the  Academy   Board   in   cadet
disenrollment cases is governed by AFI 36-2020 and USAFAI 36-187.  The
inconsistencies of the governing instructions appear to be the  result
of incomplete implementation of the 1994  Cadet  Disenrollment  Review
Team (CDRT) chartered  by  the  Secretary  of  the  Air  Force,  which
recommended that the Superintendent be  delegated  approval  authority
for certain cadet disenrollments with the Academy Board serving in  an
advisory role at the discretion of the Superintendent.   The  Academy,
in reliance on the CDRT recommendation, issued  USAFAI  35-187,  which
made  referral  of  disenrollments  to  the  Academy  Board  optional.
However, AFI 36-2020  was  not  changed.   To  the  extent  these  two
instructions are in conflict, the AFI, as the higher  level  issuance,
governs.  AFI 36-187 provides that the Superintendent may  obtain  the
advice of the Academy Board  on  all  involuntary  disenrollments  and
turnbacks of cadets.  JAG stated that  the  Academy  appears  to  have
applied  the   process   described   in   USAFAI   36-187,   believing
consideration  by  the  Academy  Board  to  be  optional  rather  than
required, as provided for in AFI 36-2020.  Nevertheless,  the  Academy
Board did in  fact  consider  the  case.   Its  role  was  to  make  a
recommendation  and  it  did  so.   The  Superintendent  adopted   the
recommendation and transmitted it, as his own, through the  Air  Force
Personnel Board to the Secretary.  Nothing in  AFI  36-2020  precludes
the Superintendent from making a recommendation as to  disposition  of
the case.

JAG stated that the applicant had  several  opportunities  to  present
evidence and arguments during the initial clarification and the  Honor
Investigation, at the Wing Honor  Board,  and  to  the  Commandant  of
Cadets during the sanctions consideration.   The  applicant  cites  no
authority that requires the Academy Board to give him  an  opportunity
to submit additional evidence or argument.

JAG disagrees with the applicant’s objection to the instruction  given
to the honor board concerning the burden of proof.  JAG indicated that
criminal case law is irrelevant to an administrative hearing  that  is
based on regulation.   Simply  because  the  Academy  elected  to  use
reasonable doubt as a standard, does not require that it  comply  with
all criminal case law regarding reasonable doubt.  In  JAG’s  opinion,
the instructions given to the Academy Board were more than  sufficient
for an administrative board.

With regard to the applicant’s objection to  non-board  members  being
present in the board deliberation room, JAG indicated that due process
in the context of cadet disenrollment consists of a  fair  hearing  at
which the cadet is apprised of the charges against him and permitted a
defense.  The Academy uses  a  Wing  Honor  Board,  comprised  of  one
officer and seven cadets, that works much like a jury.  But  it  is  a
creature of regulation, not a jury, and due process requires only that
it function fairly and  impartially.   Accordingly,  the  presence  of
third party observers while the Board deliberates is not “criminal” as
applicant infers.  Therefore, their presence would be improper, from a
legal standpoint, only if it were shown to have affected the  fairness
of the proceedings.  Academy practice, as set out in the handbook,  is
for members of the Honor Executive Committee to sit in on  Wing  Honor
Board deliberations.  According to  USAFA/JA,  members  of  the  Honor
Executive Committee observe deliberations as part of  their  oversight
responsibility.  Members of the Honor Executive Committee are  present
at all Wing  Honor  Board  deliberations;  applicant’s  case  was  not
exceptional in this regard.

The applicant asserts that the Secretary of  the  Air  Force  has  not
prescribed the disenrollment procedures  as  required  by  10  U.S.C.,
Section 9348(c)(2).  JAG stated that Section 9348 contains three major
provisions. Subsection(a) requires that each cadet  entering  the  Air
Force Academy sign an agreement to complete the course of  instruction
at the Academy, accept a commission if one is offered,  and  serve  on
active duty for five years.  Subsection (b) provides that a cadet  who
breaches the agreement required by subsection (a) may  be  transferred
to the Air Force Reserve and ordered to active  duty  as  an  enlisted
member.   Subsection  (c)  requires   the   Secretary   to   prescribe
regulations  containing  standards  and  procedures  for   (b).    JAG
indicated that Section 9348(c)  does  not  require  the  Secretary  to
prescribe  disenrollment  procedures,  but   rather   procedures   for
determining whether a cadet who is disenrolled is  subject  to  active
duty service.  Thus, even a  complete  failure  by  the  Secretary  to
implement  section  9348(c)  would  not  preclude   disenrollment   of
applicant.

With regard to the applicant’s request to pay back the  value  of  his
Academy education instead of serving on active  duty  as  an  enlisted
member, JAG noted that AFI 36-202, para  4.3,  states  the  long  held
policy that “[t]he Secretary of the Air Force assigns active  duty  as
the primary means of reimbursement for  education.”   JAG  recommended
that the Board follow this policy.

A copy of this evaluation is appended at Exhibit F

The Directorate  of  Personnel  Program  Management,  HQ  AFPC/DPPAES,
stated that the applicant’s involuntary call to Extended  Active  Duty
(EAD) was postponed from October 1999 until January 2000 (Exhibit G).

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel stated that even if the Board is not ready to state  that  the
way the honor boards are currently run do not meet  minimum  standards
of due process, certainly this particular case did when the  applicant
did not even have an attorney within hundreds of miles of  his  trial.
JAG stated that the Academy is not  bound  by  criminal  law  on  what
constitutes  “proof  beyond  a  reasonable  doubt.”   Proof  beyond  a
reasonable doubt is a criminal law standard; you will search  in  vain
for it to be properly defined anywhere else.  If you are going to  use
a criminal law standard… and the Academy has chosen to do so  in  this
administrative process… you must  either  properly  define  it  or  it
should be defined by its most common use (which  is  in  criminal  law
cases).  Counsel understands the utility of having certain people  sit
in  and  observe  these  deliberations  in  order  to  improve  future
operations of the honor system.  Counsel’s  objection  is  that  these
people can improperly influence  the  jurors,  intentionally  or  even
unknowingly.  Mention has previously been made about the appearance of
bias against the applicant by  the  officer  who  oversees  the  Honor
Board, Colonel H---.  Counsel has recently  come  into  possession  of
statements from three cadets that voted in  another  board  (defendant
convicted by the minimum 6-2 vote).  When these cadets compared  their
votes  later  on,  they  discovered  that  they  had  each  voted  for
acquittal.  They went to the officer who oversees the Honor Board  and
reported the miscount and he  refused  to  believe  these  cadets  and
refused to correct the error - this is clearly unconscionable behavior
by the senior officer.

Counsel stated that if a cadet is going to have to  represent  himself
in disenrollment proceedings, he should have clear  written  guidance.
The disenrollment procedures in this case do not meet  that  standard.
Counsel would like to add that  while  the  Secretary  has  tremendous
authority in these areas, he also has tremendous flexibility.  On over
a hundred occasions over the past decade  the  Secretary  has  allowed
cadets to forego their service commitment.  Under the circumstances of
this case, especially the lack of due process accorded the  applicant,
this would appear to be the least that can be done.   Ironically,  the
applicant completed his  degree  at  Embry-Riddle  University  and  is
currently teaching Air Force Academy cadets  how  to  fly!   This  job
undoubtedly contributes more to the Air Force mission than having  him
fill an enlisted nonflying slot merely for the purpose of checking the
block for service commitment.  If the purpose of forcing him on active
duty as an enlisted person is to further punish (or  perhaps  humble?)
him, this is neither necessary nor appropriate.  This is not a case of
someone trying to get something for nothing; the applicant has offered
to pay back the taxpayers from the money he is currently earning as  a
flight instructor.

The applicant is a young man who deserved to be given a fair chance to
defend his honor; he was not.  If the Board decides that  it  is  best
for all parties for him not to return to  the  Academy,  then  counsel
asks (based on the facts of this case) that the Board  recommend  that
the applicant be given a clean separation and enabled to  go  on  with
his life without crippling debts.  Counsel requests  that  before  the
Board makes their final decision, that the Board members read  the  23
Feb 99 letter from Capt Deborah Curtis, Military Cadet Counsel at  the
Academy, about the problems with the current honor system there.  When
you combine this with the flaws unique to  the  applicant’s  case,  it
should convince the Board that  the  applicant  deserves  that  second
change.

Counsel’s complete response is appended at Exhibit I.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of probable injustice warranting some relief.  The applicant
was disenrolled from the United States Air Force  Academy  for  having
violated  the  cadet  wing  honor  code.   Due  to   the   applicant’s
disenrollment from the United States Air Force Academy, he incurred  a
three-year Active  Duty  Service  Commitment  (ADSC)  as  an  enlisted
member.  We note that the applicant was aware that he would either  be
required to repay the government for the  cost  of  his  education  or
incur an ADSC.

4.  With respect to the  disenrollment  action,  after  reviewing  the
circumstances surrounding the applicant’s dismissal from  the  Academy
and the documentation submitted in support of his appeal, we  find  no
error or injustice concerning the disenrollment  action.   It  appears
that  responsible  officials  applied  appropriate  standards  in  the
applicant’s disenrollment process,  and  we  do  not  find  persuasive
evidence  that  pertinent  regulations  were  violated  or  that   the
applicant was not afforded all the rights to  which  entitled  at  the
time of disenrollment.

5.  Notwithstanding the above, in view of the circumstances leading to
the applicant’s disenrollment and the fact that the end result was his
failure to obtain a much-desired  Air  Force  commission,  we  believe
ordering the applicant to active duty as an enlisted member of the Air
Force would be excessively harsh.  Based on the evidence presented  in
this case, we believe it would be proper and fitting  to  reverse  the
determination that the applicant should serve on active duty for three
years.  In addition, we  note  that  the  applicant  has  subsequently
completed his degree and is currently a  civilian  flight  instructor.
Hence, it appears his education and skills would best be  utilized  in
the civilian sector training pilots.  However, we do not  believe  the
evidence supports a decision that  the  applicant  should  be  treated
differently than other cadets who are disenrolled  after  their  third
year at the Academy and who do not perform the requisite  active  duty
service in enlisted status. Rather, we believe the appropriate  course
of action in this case would be to allow the  applicant  to  reimburse
the United States for the cost of  his  Air  Force  Academy  education
instead of requiring that  he  perform  three  years  of  active  duty
service, and we do so recommend.

6.  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.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show that the Secretary  of  the
Air Force determined that he  not  be  ordered  to  active  duty,  but
instead reimburse the United States Government for  the  cost  of  his
education in accordance with Section 2005 of Title 10,  United  States
Code.  This approval does not excuse any  other  indebtedness  to  the
United States Government.
_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 2 December 1999, under the provisions of AFI  36-
2603:

                  Mr. Richard A. Peterson, Panel Chair
                  Mr. Clarence D. Long III, Member
              Mr. Patrick R. Wheeler, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 15 Mar 99, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ USAFA/JA, dated 29 Apr 99.
   Exhibit D.  Letter, SAF/MIBR, dated 1 Jun 99.
   Exhibit E.  Letter from counsel, dated 2 Aug 99, w/atchs.
   Exhibit F.  Letter, HQ USAF/JAG, dated 10 Sep 99.
   Exhibit G.  Letter, HQ AFPC/DPPAES, dated 23 Sep 99.
   Exhibit H.  Letters, AFBCMR, dated 16 Sep 99 and 30 Sep 99.
   Exhibit I.  Letters from counsel, dated 5 Nov 99 and
               15 Nov 99, w/atchs.




                                   RICHARD A. PETERSON
                                   Panel Chair



AFBCMR 99-00780




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to APPLICANT be corrected to show that the Secretary of
the Air Force determined that he not be ordered to active duty, but
instead reimburse the United States Government for the cost of his
education in accordance with Section 2005 of Title 10, United States
Code.  This approval does not excuse any other indebtedness to the
United States Government.




            JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency