RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02626
            INDEX CODES:  A80.00, 110.03

            COUNSEL:  THOMAS W. STOVER, JR.

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her records be corrected as follows:

1.  Her records should contain no mention of Honor  charges  or  Honor
Board proceedings against her.

2.  Her  records  should  show  she  graduated  with   a   degree   in
aeronautical engineering from the  United  States  Air  Force  Academy
(USAFA) in May 02.

3.  Her  records  should  show  she  was  commissioned  as  a   second
lieutenant in the Air Force on 29 May 02.

4.  She should be awarded pay as a second lieutenant for the period 29
May 02 through 28 May 04.

5.  Her records should show she was promoted to  the  grade  of  first
lieutenant in the Air Force on 29 May 04, when other  members  of  her
graduating class would have received a similar promotion.

6.  She should be awarded pay as a  first  lieutenant  from  29 May 04
through the date action is taken on this request.

7.  Her pay should be adjusted to the pay of a first lieutenant in the
Air Force Reserve as of the date the Board acts on this request.

8.  Her records  should  show  she  began  to  fulfill  her  five-year
commitment to the Air Force immediately after graduation so  that  she
receives credit for the time she has spent waiting for the  Air  Force
to correct this error.

9.  She should be reimbursed for the  cost  of  her  civilian  pilot’s
training, which is a benefit the Air Force would have provided if  she
had not been wrongfully disenrolled.

By amendment, she be granted an unequivocal release from  any  further
commitment to the United States  Air  Force  and  given  an  honorable
discharge, with back pay as a second lieutenant from 29 May 02  to  29
May 04, and as a first lieutenant from 29 May 04 to 19 Aug 04.  If she
is not excused from further service and given an  honorable  discharge
with back pay, she receive full pay from the date  of  her  graduation
through the date of any decision by the Board.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She was wrongfully denied her diploma from the USAFA and commissioning
as a second lieutenant in the Air Force in May 02.   The  USAFA  Honor
Board decision that led to her disenrollment  was  overturned  by  the
Secretary of the Air Force 18 months later on 16 Dec 03.

In support of her appeal, the applicant provided counsel’s statements,
documentation pertaining to her private  flight  training,  and  other
documents associated with the matter under review.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Available documentation indicates the applicant was appointed a second
lieutenant, Reserve of the Air Force, on 31  Jul  04.   The  remaining
relevant facts pertaining to this application  are  contained  in  the
letter prepared by the Legal Advisor.

_________________________________________________________________

AIR FORCE EVALUATION:

The Legal Advisor reviewed this application and noted that  on  21 May
02, a Cadet Honor Board found the applicant  had  violated  the  Honor
Code by falsely stating she drew a portion of an aircraft engine, when
she in fact had cut,  pasted,  and  modified  a  drawing  prepared  by
another group of cadets.  In May 02, the then-Superintendent  verbally
offered her a chance to stay at the Academy for six  months  on  honor
probation, an  offer  she  declined.   The  Honor  Board  subsequently
recommended  disenrollment,  and  on  15 Jul  02,  the   34th   TRW/CC
concurred.

According to the Legal Advisor, the HQ USAF/CC delayed  taking  action
on the case pending  an  Inspector  General  (IG)  investigation  into
allegations the then-Commandant acted improperly in this case.  On  10
Jan 03, the IG found her allegations to be unsubstantiated.  On 24 Feb
04, the USAF/CC met with the applicant and again offered  her  a  six-
month probation period instead of  disenrollment.   In  response,  the
applicant requested graduation, but not commissioning.  On 14 Apr  03,
the USAF/CC advised the applicant on the conditions under which such a
request could be granted.  On 23 Jun  03,  the  applicant  stated  she
would accept her commission if she received back  pay  retroactive  to
May 02 (when she would have graduated), if  she  could  serve  in  the
Reserves or  Guard  while  she  attended  graduate  school,  and  upon
completion of her advanced degree, be assigned to National Aeronautics
and Space Administration (NASA) or a comparable agency.  This  request
(offer) was not accepted, and the disenrollment  case  processing  was
resumed.  It should be noted that all of these offers were based  upon
the Air Force assuming that she  had  violated  the  Honor  Code;  the
applicant’s responses were based upon her firm conviction that she had
not.

The Legal Advisor noted that on 22 Sep 03, the Secretary  of  the  Air
Force Personnel Council (SAFPC) found the Honor  Board  findings  were
not legally or procedurally correct and recommended the  disenrollment
action be disapproved, and the applicant’s unusual request to serve in
the Reserves be granted.  On 16 Dec 03, the Secretary of the Air Force
disapproved the disenrollment action and returned the applicant to the
USAFA for the purpose of  graduating.   He  further  directed  she  be
allowed  to  serve  her  military  service  obligation  in  a  Reserve
component.

The Legal Advisor recommended the applicant be given most of what  she
has requested.  Specifically, he recommends granting  her  retroactive
commissioning and active duty service credit, promotion and  pay  from
May 02 until the date of the Board’s decision.  He noted the applicant
has asked for approximately eight and one-half months of  active  duty
pay past the initial notification of the  Secretary’s  decision  (plus
AFBCMR processing time).  The Legal Advisor indicated she  would  have
received  two  months  graduation  leave,  which  she  did  not.   The
remaining six months of pay credit reflects a not unreasonable request
under the circumstances.  With its decision, the Board  would  approve
her transfer to the Reserves effective with its order.  At that point,
the applicant will have the responsibility to work with  the  Reserves
to earn points or face the consequences.  She should have her military
records show she is assigned to Reserve Headquarters and she and  they
can  manage  her  remaining  service  obligation.   If  she  does  not
participate  adequately,  they  can  take  what   action   they   find
appropriate for similarly-situated officers.  It has been a  difficult
challenge to devise an adequate remedy for an acquitted cadet who  had
been so near to graduation, but, in  the  Legal  Advisor’s  view,  the
requested remedy comes reasonably close under the circumstances.

Regarding  the  applicant’s  request   for   private   pilot   license
reimbursement, the Legal Advisor recommended denial.  Although she may
have not been entitled to take flying training at  government  expense
because she was facing disenrollment,  and  that  disenrollment  ended
with an acquittal, that is unfortunate, but  does  not  constitute  an
injustice.  Her decision to take private lessons to substitute  for  a
lost opportunity  is  understandable,  but  is  a  personal  decision.
According to the Legal Advisor, the Board’s  authority  to  correct  a
military record creates entitlements (back pay, etc.) that  flow  from
the record as corrected.  He knows of no authority  to  pay  for  what
amounts to consequential damages to a private  company,  even  if  the
applicant has demonstrated she would have received a  similar  benefit
had she not faced  disenrollment.   This  is,  however,  an  equitable
factor that gives further support to extending her active duty service
credit, as previously discussed.

Concerning her request  to  have  the  Board  pass  information  about
alleged  misconduct  about  active  duty  personnel  for   appropriate
investigation and possible  disciplinary  action,  the  Legal  Advisor
recommended the Board take no action.   In  his  view,  this  type  of
action by the Board is not appropriate.  By  separate  correspondence,
he has suggested the  applicant,  or  a  representative,  contact  the
commander or legal officer directly, making sure they specify on  what
basis they know certain personnel were  involved.   According  to  the
Legal Advisor, he has spoken to the legal office of the base to  which
the alleged offenders are assigned, and to date they have had no  such
complaints filed.

A complete copy of the Legal Advisor’s evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel provided a response to the advisory  opinion  from  the  Legal
Advisor indicating the applicant agrees with much of  what  the  Legal
Advisor recommends in his advisory.  She specifically agrees with  the
recommendation that her commissioning be retroactive to 29 May 02; she
be promoted to first lieutenant as of 29  May  04;  and,  she  receive
active duty service credit and active duty pay commensurate  with  her
rank from 29 May 02 through the date of her discharge.  She  continues
to believe the Air Force should reimburse her for the cost  of  flight
training, but, if the Board accepts the advisory’s recommendation, she
is willing to forego reimbursement for that expense.

She asks the Board to depart from the advisory  with  respect  to  the
recommendation she be assigned to the Reserves.  While the appeal  has
been pending, and uncertain about how the Board  would  act,  she  has
been getting on with her life.  She is  about  to  graduate  from  the
University of Wisconsin and has accepted a job at  the  Johnson  Space
Flight Center.  In addition, she  continues  to  see  and  hear  about
offensive, obscene,  and  threatening  comments  directed  at  her  in
correspondence from and conversations with Air Force  personnel.   The
combination of the demands of her job  and  the  persistent,  unseemly
attitude of her peers in the Air Force, has led her to  ask  that  the
Board direct she be awarded back pay, given  an  honorable  discharge,
and excused from any further obligation (monetary or otherwise) to the
Air Force.

Counsel’s complete response, with attachment, is at Exhibit D.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Legal Advisor reviewed counsel’s response to his original advisory
and recommends the applicant  be  granted  retroactive  commissioning,
active duty service credit, and promotion and pay from  May  02  until
the date of her application.  He further recommends that  her  records
indicate she tendered her resignation effective on  the  date  of  her
appeal and it was accepted, with the remaining portion of  her  active
duty service commitment waived without recoupment.  The Legal  Advisor
indicated that  although  such  waivers  are  unusual,  they  are  not
unprecedented, and are granted when they are in the best interests  of
the Air Force.  Specifically, such waivers have been  granted  by  the
Board in prior defective Academy disenrollment cases where the  cadets
had moved on with their lives and did not request reinstatement to the
Academy or commissioning.

A complete copy of the Legal Advisor’s evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel reviewed  the  additional  advisory  opinion  from  the  Legal
Advisor   and   indicated   the   applicant   concurred    with    his
recommendations,  assuming  the  resolution  includes   an   honorable
discharge from the Air Force on 19 Aug 04, a complete and  unequivocal
release from any further commitment to the Air Force, and back pay  as
a second lieutenant from 29 May 02 through 29 May 04, and as  a  first
lieutenant from 29 May 04 through 19 Aug 04.  If the  Board  does  not
agree that the applicant should be excused from any further commitment
to the Air Force and given an honorable discharge with back  pay,  she
reserves the right to propose and seek other forms of relief from  the
Board.  So there is no confusion, she has no intention of repaying the
Air Force given the treatment she has received  over  the  past  three
years.  Also, if she is not excused from further service and given  an
honorable discharge with back pay, she should receive  full  pay  from
the date of her graduation through the date of  any  decision  by  the
Board.

Counsel’s complete response is at Exhibit G.

_________________________________________________________________

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  error  or  injustice.   After  a  careful  and  thorough
analysis of the facts and circumstances of this case, and the apparent
concurrence of the applicant, we agree  with  the  recommended  relief
proffered by the Legal Advisor.  In our view, such  corrective  action
is not only proper and fitting relief, but appears to be in  the  best
interests of the Air Force and the individual concerned.  Accordingly,
we recommend the applicant’s records be corrected to reflect  she  was
granted  retroactive  commissioning,  active  duty   service   credit,
promotion and pay, and that her resignation from all  appointments  in
the Air Force was tendered and accepted, with the remaining portion of
her active duty service commitment waived without recoupment.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that:

      a.  She graduated from  the  United  States  Air  Force  Academy
(USAFA) and was commissioned as a second lieutenant,  Reserve  of  the
Air Force, on 29 May 02, was voluntarily ordered  to  extended  active
duty, and was ordered permanent change  of  station  to  her  home  of
record pending further orders.

      b.  She was promoted to the grade of first  lieutenant,  Reserve
of the Air Force, effective and with a date of rank (DOR)  of  29  May
04.

      c.  On 19 Aug 04, competent  authority  accepted  her  voluntary
tender of resignation from all appointments in the United  States  Air
Force, and waived,  without  recoupment,  her  remaining  active  duty
service commitment (ADSC) incurred as a result of her graduation  from
the USAFA.

      d.  She was honorably discharged from all  appointments  in  the
United States Air Force on 19 Aug 04.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2004-02626 in Executive Session on 15 Mar 05, under the provisions  of
AFI 36-2603:

      Ms. B. J. White-Olson, Panel Chair
      Ms. Janet I. Hassan, Member
      Ms. Martha A. Maust, Member

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

     Exhibit A.  DD Form 149, undated, w/atchs, dated 19 Aug 04.
     Exhibit B.  Letter, SAF/MRB, dated 9 Nov 04, w/atchs.
     Exhibit C.  Letter, AFBCMR, dated 9 Nov 04.
     Exhibit D.  Letter, counsel, dated 30 Dec 04, w/atch.
     Exhibit E.  Letter, SAF/MRB, dated 8 Feb 05.
     Exhibit F.  Letter, AFBCMR, dated 9 Feb 05.
     Exhibit G.  Letter, counsel, dated 2 Mar 05.




                                   B. J. WHITE-OLSON
                                   Panel Chair



AFBCMR BC-2004-02626




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 , be corrected to show that:

            a.  She graduated from the United States Air Force Academy
(USAFA) and was commissioned as a second lieutenant, Reserve of the
Air Force, on 29 May 02, was voluntarily ordered to extended active
duty, and was ordered permanent change of station to her home of
record pending further orders.
.

            b.  She was promoted to the grade of first lieutenant,
Reserve of the Air Force, effective and with a date of rank (DOR) of
29 May 04.

            c.  On 19 Aug 04, competent authority accepted her
voluntary tender of resignation from all appointments in the United
States Air Force, and waived, without recoupment, her remaining active
duty service commitment (ADSC) incurred as a result of her graduation
from the USAFA.

            d.  She was honorably discharged from all appointments in
the United States Air Force on 19 Aug 04.






    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency