RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-00960

            COUNSEL:  Mil Order of Purple Heart

      O     HEARING DESIRED:  YES



APPLICANT REQUESTS THAT:

1.    His debt to the US Government be waived.

2.    His discharge be upgraded to honorable.

3.    Corrections be made to all  decisions  resulting  out  of  boards  and
violations of due process.


APPLICANT CONTENDS THAT:

He was denied due process  during  his  disenrollment  proceedings  and  his
behavior at the United States Air Force Academy (USAFA) did  not  constitute
misconduct under Title 10 USC 2005.

The applicant states that the Secretary was wrong in her assertion  that  he
committed two serious offenses.   The  Article  32  investigation  found  no
evidence suggesting he was guilty of  assault,  battery,  or  conspiracy  to
commit assault and battery.  The exhibited  antisocial  behavior  referenced
by the Secretary and  her  reason  for  dismissal  for  defective  character
traits make no sense since  they  are  based  on  the  assault  and  battery
charges which were dismissed by the Article 32 investigation.   Since  there
was  no  misconduct,  he  is  not  liable  for  the  alleged   indebtedness.
Furthermore,  he  was  never  advised  that  he  might  be  subject   to   a
reimbursement requirement.  To the contrary,  he  was  advised  that  active
duty would not be waived.  The applicant notes that both the  Superintendent
and the Military Review Committee (MRC) recommended that he  be  disenrolled
but not be separated from the Air Force.  The Secretary  stated  the  reason
for his separation was based on the Superintendent’s recommendation  due  to
misconduct and, the Superintendent’s  letter  states  that  his  reason  for
recommending his separation was based on the MRC’s recommendation  based  on
a lack of aptitude for commissioned service and  misconduct.   However,  the
MRC’s actual assessment was that he was deficient in  conduct  and  aptitude
for commissioned service.  The MRC did not mention misconduct  as  a  reason
for recommending disenrollment.

The applicant’s complete submission is attached at Exhibit A.


STATEMENT OF FACTS:

On 14 February 1994, the Commandant of Cadets preferred charges against  the
applicant for violating Article 128 (Conduct Unbecoming an Officer)  of  the
Uniformed Code of Military Justice (UCMJ) and recommended trial  by  general
court-martial.  Specifically, for unlawfully jumping  on  the  head,  chest,
and neck of a cadet on 4 November 1993.

An  Article  32  investigation  was  completed  on  4   March   1994.    The
investigating officer (IO) recommended the charges against the applicant  be
dismissed,  and  the  matter  returned  to  the  applicant’s  commander  for
administrative action.  The administrative action recommended by the IO  was
an Article  15  under  the  UCMJ  for  violation  of  Article  134  (Conduct
Prejudicial to Good Order and Discipline).

On 29 March 1994, the Commandant of Cadets  dismissed  the  charges  against
the applicant.

A Commandant’s Disciplinary Board  (CDB)  convened  on  27  April  1994  and
recommended the applicant attend leadership counseling, be removed from  the
boxing team, and placed on conduct and aptitude probation  as  a  result  of
the committed violations (i.e.,  conduct  compromising  superior/subordinate
relationship, conduct unbecoming an officer candidate,  hazing  and  outside
cadet limits).

On 13 June 1994, a Military Review  Board  (MRB)  reviewed  the  applicant’s
case and recommended the applicant’s  disenrollment  and  that  active  duty
service not be waived.

On  27  June  1994,  the  squadron  commander  recommended  the  applicant’s
retention.

An Academy Board convened and recommended the applicant’s disenrollment.

On 3 August 1995, the Secretary approved  the  recommendation  of  the  USAF
Academy Board, as concurred in  by  the  Superintendent,  USAF  Academy,  to
disenroll the applicant.  The Secretary, however, directed the applicant  be
separated from cadet status with  a  general  (under  honorable  conditions)
discharge service characterization and reimburse the US Government  for  the
cost of 2 years of USAFA education.

On 19 February  1998,  the  Secretary  of  the  Air  Force  disapproved  the
applicant’s request to waive his financial obligation of $51,544.00  to  the
US Government.


AIR FORCE EVALUATION:

The Chief, Cadet Adverse Actions, USAFA/JA, reviewed  this  application  and
states the applicant was afforded due process during the events that led  up
to his disenrollment, and that his  actions  of  planning  and  executing  a
retaliatory attack on another cadet clearly constitute misconduct under  the
statute.  Contrary to the  applicant’s  contention  that  he  was  denied  a
proper hearing before the final decision  to  disenroll  was  made,  he  was
afforded this right during the  Military  Review  Committee  (MRC)  process.
The applicant also believes that all levels of command  ignored  the  report
of  the  Article  32  hearing  officer;  however,  the  applicant  fails  to
recognize the difference between a criminal process  and  an  administrative
process.  After the Article 32 proceeding, appropriate commanders  made  the
decision to discontinue criminal processing  of  the  applicant’s  case  and
proceed with administrative processing.  There is  no  prohibition  to  this
decision, and no  legal  error  in  the  final  conclusion  reached  by  the
administrative process.

USAFA/JA states  the  applicant’s  actions  of  planning  and  executing  an
assault on another cadet, plus his earlier incident of misconduct, formed  a
valid basis for misconduct.  The  applicant  received  all  appropriate  due
process throughout  his  case.   The  Secretary  of  the  Air  Force,  after
reviewing all the facts and the applicant’s submissions, concluded  that  he
should be disenrolled and ordered to repay the Government for  the  cost  of
the Academy education.  The Secretary showed  mercy  in  only  ordering  the
applicant to repay 2 years of education.  Therefore, the Academy  recommends
the application be denied.

A complete copy of the Air Force evaluation is attached at Exhibit C.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air  Force  evaluation  and  states  that  it  is
incorrect to state he is saying his  misconduct  at  the  Academy  does  not
constitute misconduct.  What he is contending is  that  his  behavior  which
resulted in his separation does  not  constitute  misconduct  under  10  USC
2005.  With respect to whether or not he committed  an  assault  consummated
by battery, the applicant notes  the  Article  32  hearing  stated  that,  “
evidence now exists which calls into question whether an act of  the  nature
that brought this matter to this stage was in  fact  committed.   That  same
evidence suggests that, even if one believed such an act was  committed,  it
is possible it was not the accused who did it.”  The applicant  states  that
the individual behavior that resulted in his separation  was  deficiency  in
conduct and aptitude for commissioning which is clearly not misconduct.

The applicant’s complete response is attached at Exhibit E.


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 probable error or injustice.  After  thoroughly  reviewing  the
evidence of record, and noting  the  applicant’s  contentions,  we  are  not
persuaded the applicant was denied  due  process  during  his  disenrollment
proceedings and his behavior at the  USAFA  did  not  constitute  misconduct
under 10 USC 2005.   We note that while attending the USAFA,  the  applicant
was involved in  a  50  -  75  member  “hall-brawl”  and  was  one  of  four
individuals that received  punishment.   We  have  thoroughly  reviewed  the
punishment that all  of  the  individuals  involved  received  and  are  not
persuaded  the  punishment  the  applicant  received  was  unduly  harsh  or
improper.   We  believe  the  punishment  these  individuals  received   was
consistent.  Furthermore, it appears the level of punishment  was  based  on
each individuals’ level of involvement in the incident.  In this regard,  we
note that two cadets were allowed to transfer to the Air  Force  Reserve  in
an enlisted status for a period of two-years.  However,  the  applicant  and
another cadet  were  found  to  have  committed  assault  and  battery  with
conspiracy to commit assault and battery,  and  were  separated  from  cadet
status for defective character traits with a  general  discharge.   Contrary
to the applicant’s  assertion,  he  was  provided  due  process  during  his
disenrollment from the USAFA.  Prior to his disenrollment,  the  applicant’s
case was considered by a Commandant’s Disciplinary Board (CDB),  a  Military
Review Board (MRB), a USAF  Academy  Board,  and  the  Air  Force  Personnel
Council.  Furthermore, the recommendation of  the  USAF  Academy  Board  was
reviewed and approved by the  Secretary.   At  each  level  of  review,  the
applicant had the opportunity to present his case.  In view of this, and  in
the absence of substantial evidence that he was not afforded all  rights  to
which he was entitled, we are not persuaded that he was denied due  process.
 In regard  to  applicant’s  request  that  his  discharge  be  upgraded  to
honorable, the Board recognizes that applicant’s  entire  cadet  record  was
considered by the Air Force Personnel Council and the Secretary of  the  Air
Force prior to  characterizing  his  service  as  general  (under  honorable
conditions).  After thoroughly reviewing the  documentation  submitted  with
this application, we do not believe the applicant  has  provided  sufficient
evidence warranting favorable action on the  requested  relief.   Therefore,
in the absence of evidence to the contrary, we find no compelling  basis  to
recommend granting the relief sought in this application.

4.    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 issue(s) involved.  Therefore,  the  request
for a hearing is not favorably considered.


THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of probable material error or injustice; that the  application
was denied without a personal appearance;  and  that  the  application  will
only be reconsidered  upon  the  submission  of  newly  discovered  relevant
evidence not considered with this application.


The following members of the Board considered this application in  Executive
Session on 19 August 1999 and 23 May 2000 under the provisions  of  AFI  36-
2603:

                  Ms. Charlene M. Bradley, Panel Chair
                  Mr. Terry A. Yonkers, Member
                  Ms. Peggy E. Gordon, Member

The following documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 31 Mar 98, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, USAFA/JA, dated 15 Jun 98.
      Exhibit D.  Letter, AFBCMR, dated 31 Aug 98.
      Exhibit E.  Letter, Applicant, dated 28 Oct 98, w/atchs.




             CHARLENE M. BRADLEY
                                  Panel Chair