RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  01-01150
            INDEX NUMBER:  104.00; 128.00

      XXXXXXXXXXXXX    COUNSEL:  Fred L. Bauer

      XXX-XX-XXXX      HEARING DESIRED:  Yes

_______________________________________________________________

APPLICANT REQUESTS THAT:

He be reinstated to the United States Air Force Academy (USAFA)  or  in
the alternative, his tuition indebtedness be forgiven.

_______________________________________________________________

APPLICANT CONTENDS THAT:

He was disenrolled from the USAFA primarily after two of  his  superior
officers changed previously favorable recommendations that  had  helped
him receive probation during a disciplinary review.

The officers changed their previously favorable  recommendations  based
largely on the mistaken belief that the applicant had been convicted of
an honor violation.

His disenrollment was primarily caused by his conviction for  an  honor
violation by the Wing Honor Board (WHB) although his WHB conviction had
been  set  aside  due  to  irregularities  and  should  not  have  been
considered as a factor in his disenrollment.

The other issues  that  led  to  the  revocation  of  his  disciplinary
probation, driving a motor  vehicle,  allegedly  in  violation  of  his
probation, and several grooming/military appearance  problems,  do  not
bear scrutiny.

In support of his request, applicant’s counsel  submits  an  eight-page
legal brief with thirteen attachments.

_______________________________________________________________

STATEMENT OF FACTS:

The relevant facts pertaining to this application, extracted  from  the
applicant’s military records, 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 USAFA Staff Judge Advocate, USAFA/JA,  evaluated  this  application
and recommends denial of the applicant’s requests.

The applicant contends that  he  wasn’t  really  disenrolled  from  the
Academy because of his military misconduct, but  so  that  the  Academy
could “cover up” irregularities in a Wing Honor Board (WHB) convened to
investigate overlapping deceit allegations arising from his  misconduct
(a false police report).  The WHB voting procedures in  his  case  were
called into question  by  his  defense  counsel.   While  the  WHB  was
conducted according to the rules and procedures outlined in  the  Cadet
Honor Code Reference Handbook, and in spite of compelling evidence that
he committed an honor violation, his honor case was terminated  due  to
the appearance of a voting count discrepancy.

The WHB, though conducted properly, was terminated out of abundance  of
caution and to ensure the appearance of fundamental fairness.  They  do
not believe that the termination of the WHB  reflects  failure  of  the
honor system as a whole and that there is no evidence that  the  motive
behind the Military Review Committee  (MRC)  was  to  “cover  up”  such
alleged failure.

The applicant complains that the Academy unfairly subjected him to  two
disenrollment processes.  In fact, the WHB and  MRC  are  separate  and
distinct procedures, which can run parallel to one another.

A review of the entire file  demonstrates  that  the  applicant  had  a
history  of  not  living  up  to  Academy  standards  and  making  poor
decisions.  The applicant’s cadet career record of  punishment  totaled
an extremely high 260 demerits, 235 tours, and 10 confinements, as well
as returning him to conduct probation a second time.

The applicant’s poor record was properly brought before the Sep 99  MRC
for consideration, convened for his  probation  failure,  breaking  the
demerit threshold and  his  AOC’s  rating.   His  AOC  and  former  AOC
testified  at   the   MRC   that   the   applicant   was   continuously
unprofessional, made poor decisions, and  makes  excuses  when  caught.
His current AOC questioned his integrity, testified he was not  officer
material, and recommended that the applicant be disenrolled.  While the
applicant’s counsel asserts the  violation  of  probation  was  a  mere
afterthought “thrown in  to  try  and  justify  the  sudden  change  in
status,” the MRC evaluated a cadet whose record was  historically  weak
and on a steady decline.  He was unable to succeed in his probation and
apparently learned little if anything from his  earlier  experience  on
conduct and aptitude probation.

The complete evaluation is at Exhibit C.

______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel responded to  the  evaluation.   He  addressed  the
issue of the WHB and how problems with the process contributed  to  the
applicant’s disenrollment from the Academy.

Counsel notes that USAFA/JA  goes  back  over  the  applicant’s  entire
cadetship (almost three and a half years) and cites  several  offenses,
including an underage drinking incident his first year at  the  Academy
and an  alleged  driving  under  the  influence  (DUI)  later  on.   He
indicates that the applicant was neither  convicted  nor  charged  with
DUI.  He was fined for stream  littering  and  filing  a  false  police
report.  Counsel again notes that USAFA/JA points  to  applicant’s  260
demerits but neglects to point out that about 220 were related  to  two
alcohol related incidents and that getting only 40  demerits  otherwise
in three plus years is actually low.  Counsel  also  rebuts  the  other
issues referenced by USAFA/JA.

Counsel indicates that even if the  applicant  had  been  in  an  above
average amount of trouble,  his  discharge  was  fatally  flawed.   The
alleged  honor  code  conviction  was  considered  during  the  routine
administrative discharge proceeding when it should not have  been.   It
is absolutely undeniable that one honor code conviction is more serious
than just about any disciplinary record.  The  effects  of  considering
this improper “conviction” cannot be  ignored  or  minimized.   Counsel
points  out  that  the   applicant’s   AOC   switched   his   favorable
recommendation to unfavorable based  solely  on  his  belief  that  the
applicant had been convicted by the WHB.

The  administrative  discharge  board  wrongly  considered  what   they
believed was a valid WHB conviction.  This  was  major  factor  in  the
decision to separate the applicant from the Academy.   The  applicant’s
“conviction” was set aside and no longer exists.

Counsel’s complete response is 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 warranting his reinstatement to
the United States Air Force Academy (USAFA).  It is noted that the Wing
Honor Board (WHB) was terminated due to the appearance of a voting count
discrepancy.  However, a Military Review Committee (MRC) convened and after
reviewing applicant’s entire record found that he was unfit to serve as an
officer in the Air Force.  The Superintendent, after reviewing the
recommendations from the MRC, Commandant of Cadets and the Academy Board,
also recommended applicant’s disenrollment.  As stated above, the WHB was
terminated and it does not appear that the results of this board had any
effect on the recommendations made by the MRC, Commandant of Cadets and the
Academy Board.  As noted by the Staff Judge Advocate, applicant’s career
record of punishment totaled an extremely high 260 demerits, 235 tours, and
10 confinements, as well as returning him to conduct probation a second
time.  In view of totality of the evidence before this Board, we do not
believe that applicant’s reinstatement to the USAFA is justified.
Therefore, we do not recommend favorable action on this portion of his
appeal.

4.  Notwithstanding the above determination, we  do  believe  that  the
indebtedness he incurred should be removed from his  record.   The  WHB
was terminated and we cannot rule out, with certainty, whether  or  not
the WHB results influenced the WRC recommendation.  We note that one of
the applicant’s commanding officers clearly indicates in his  statement
that  he  had  originally  recommended  the  applicant   for   “Conduct
Probation”  but  could  no  longer  recommend  that  the  applicant  be
commissioned or stay in the Air Force as an enlisted airman due to  his
violation of the Honor Code.  Therefore, to remove any  possibility  of
an injustice  to  the  applicant,  we  believe  that  his  indebtedness
incurred for his USAFA education should be  removed  from  his  record.
Therefore,  we  recommend  his  records  be  corrected  to  the  extent
indicated below.

_______________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of  the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that at  the  time  of  his
discharge from the Air Force Academy, the Secretary of  the  Air  Force
found  that  under  the  particular  circumstances  of  his  case,  his
disenrollment was not due to misconduct within the meaning of Title 10,
United States Code, Section 2005, and that, accordingly,  no  debt  was
established to  reimburse  the  United  States  for  the  cost  of  his
education at the Air Force Academy.

_______________________________________________________________

The following members of  the  Board  considered  this  application  in
Executive Session on 9 October 2001, under the provisions  of  AFI  36-
2603:

      Ms Peggy E. Gordon, Panel Chair
      Mr. Grover L. Dunn, Member
      Mr. Thomas J. Topolski, Member

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

    Exhibit A.  DD Form 149, dated 2 Apr 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, USAFA/JA, dated 24 Jul 01.
    Exhibit D.  Letter, SAF/MIBR, dated 10 Aug 01.
    Exhibit E.  Letter, Applicant’s Counsel, dated 4 Sep 01.




                                   PEGGY E. GORDON
                                   Panel Chair



AFBCMR 01-01150


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 XXXXXXXXXXXX, XXX-XX-XXXX, be corrected to show that at the
time of his discharge from the Air Force Academy, the Secretary of the
Air Force found that under the particular circumstances of his case, his
disenrollment was not due to misconduct within the meaning of Title 10,
United States Code, Section 2005, and that, accordingly, no debt was
established to reimburse the United States for the cost of his education
at the Air Force Academy.






                                          JOE G. LINEBERGER
                                          Director
                                          Air Force Review Boards
                                          Agency