RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02895
            INDEX NUMBER:  104.00
      XXXXXXXXXXXX     COUNSEL:  Dartt J. Demaree

      XXX-XX-XXXX      HEARING DESIRED:  Yes

MANDATORY CASE COMPLETION DATE:  14 Mar 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

A.  The two findings in 2003 that he violated the  United  States  Air
Force Academy (Academy)  Cadet  Honor  Code  be  eliminated  from  his
record.

B.  He be granted a diploma from the Academy.

C.  He be granted a medical discharge  for  the  rheumatoid  arthritis
that  began  during  his  second  year  at  the  Academy,  or  in  the
alternative, he be offered a commission and  allowed  to  fulfill  his
military service.

D.  The debt he incurred for the cost of his education at the Academy be
eliminated.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In  a  21-page  brief  of  counsel,  applicant  makes  the   following
arguments:

        a.  The first basis for correction of the applicant’s  records
is the  Air  Force’s  failure  to  properly  evaluate  his  rheumatoid
arthritis and issue him a medical discharge.  The applicant  developed
rheumatoid arthritis before starting his third year  at  the  Academy.
He should have been rejected from further military service because  he
developed the condition before completing two years  of  the  program.
However, even if he had developed the condition after  his  first  two
years at the  Academy,  his  condition  precluded  continued  military
service and should have been processed under  Academy  and  Air  Force
Instructions  related  to  medical  evaluation  boards   (MEB).    The
applicant met an  MEB  in   Dec  01  and  was  found  unqualified  for
worldwide duty and not qualified for a medical waiver.  A  second  MEB
planned in 2002 was not held.  Subsequently, the  applicant  continued
to require more extensive medication  for  his  rheumatoid  arthritis,
continued to be sick and missed classes.  He  never  received  another
MEB as recommended by his Air Force physician and as expected  by  Air
Force directives.  Counsel opines that if the Air Force had  correctly
evaluated the applicant’s condition, he would  have  been  disenrolled
before  the  consequences  of  his  illness  occurred.   Instead,  the
applicant struggled with the symptoms of his condition  and  the  side
effects of the  medication  he  was  taking.   Counsel  discusses  how
missing  class,  including  Computer  Science   467,   irritated   the
instructor and created a notable bias.  Counsel also discusses actions
taken by the applicant in Computer Science 467 and how the actions did
not constitute an honor violation.  Counsel  states  that  during  the
time the applicant was charged with honor code violations, it  appears
the  Academy  stopped  giving  any  further   consideration   to   the
applicant’s medical condition.  He opines that not only was  it  wrong
for the Academy not to conduct another MEB, but it was  wrong  not  to
mention the impact of the applicant’s rheumatoid  arthritis  upon  his
honor code case or to consider the  impact  during  his  disenrollment
evaluation.  Counsel states that in the regular Air Force, a case such
as the applicant’s would be “dual processed” so that both the  medical
and disciplinary aspects could be weighed.

        b.  The second basis for correcting the applicant’s records is
the lack of due process he received at his cadet honor board.  Counsel
discusses the  elements  of  due  process  and  states  the  applicant
received some aspects of due process but was denied others.  He states
that the applicant did not receive adequate notice of the evidence and
witnesses against him, was denied an interview with the honor  board’s
expert witness, was denied an impartial, fully alert board of  cadets,
could not  adequately  cross-examine  witnesses,  and  was  forced  to
respond to three distinct allegations from  the  instructor  involving
complex computer programming.  The applicant requested and was  denied
without good cause his request that the three honor charges  be  heard
at separate boards to allow him to adequately prepare a defense and so
that board members would not be confused by  the  complicated  subject
matter.   Counsel  opines  that  confusion  among  board  members  was
discernible by many of the  types  of  questions  asked.   He  further
opines that it was inevitable that some board members were confused by
the mass of documents  and  testimony  presented  on  arcane  computer
programming topics.  He points out that several cadets that  witnessed
the hearing commented on the confusion they observed from  the  board.
Counsel  further  discusses  how  due  process  was  impacted  by  the
applicant not receiving adequate notice of the  evidence  against  him
and not being able to call an  independent,  expert  witness  to  help
offset the evidence presented by his Computer Science 467  instructor.
He argues the applicant was not given an opportunity to call witnesses
as stipulated in the Cadet Honor Code Reference Handbook.  Without the
use of an expert,  the  applicant  could  not  develop  the  questions
necessary to properly cross-examine  the  instructor  or  the  board’s
government expert.  Counsel states that a key witness to the  homework
assignment  did  not  testify  at  the  board  hearing  and  that  his
eyewitness account would have given more credence to  the  applicant’s
testimony.  Counsel discusses how not receiving adequate notice of one
witness’s planned testimony precluded  the  applicant  from  preparing
better questions and potentially uncovering information more favorable
to his case.  He asserts the applicant was denied due process when his
case was decided by  a  tired,  frazzled  set  of  cadets  instead  of
impartial, alert board members.  He recounts how there were delays  of
the proceedings and that the board lasted approximately 16  hours  and
that by the time the applicant started giving testimony, board members
were  tired  and  confused.   The  combination  of  three  allegations
involving complex computer issues, conflicting testimony,  and  a  16-
hour board rendered the members unable to exercise sound judgment.  As
evidence of this counsel states that any objective  person  who  reads
significant portions of the 423-page board  transcript  and  sees  the
type of questions asked by the cadets on the board  would  reach  this
conclusion.

        c.  Counsel asserts that the next reason the applicant  should
be granted relief by the board is that in other hearings,  such  as  a
court-martial, the facts of this case would have raised a “mistake  of
fact” defense.  He states that this type of defense is clearly  raised
in the allegation of cheating by copying another cadet’s code into the
referenced homework assignment.  Counsel discusses how  the  applicant
had missed a number  of  classes  and  relied  on  one  of  his  cadet
classmates to brief him on material he missed and  on  what  resources
could be used for the assignment.   Counsel  states  that  the  record
showed that the applicant and the classmate  had  worked  together  in
other computer science classes in the past.   He  states  it  must  be
understood that over 50% of the computer code used in  the  assignment
was provided by the instructor and sources he gave to the cadets.  The
applicant provided sources which he believed appropriate.

        d.  Counsel opines the applicant’s record should be  corrected
because there was not proof beyond a reasonable  doubt  the  applicant
violated the honor code.  Counsel  provides  his  rationale  for  this
conclusion by discussing how the lack  of  an  independent  expert  to
assist him precluded the applicant from a  reasonable  opportunity  to
counter the instructor’s opinions and assertions  since  only  another
expert would have equivalent stature in the eyes of a board consisting
of students.  Counsel opines that only after the  board  finished  did
the applicant have sufficient time to make a point-by-point review  of
the instructor’s memoranda and testimony.  The  applicant’s  analysis,
which is included in this submission, is a detailed  rebuttal  of  the
instructor’s assertions and is a critical  part  of  the  application.
Counsel goes on to discuss reasons why the instructor’s testimony must
be discounted and his credibility questioned.   He  states  that  even
before the incident,  the  applicant  claims  the  instructor  had  an
attitude of irritation towards him.  An independent observer noted the
instructor’s negative attitude during a clarification meeting with the
applicant and the instructor.  Counsel asserts the instructor  decided
to pursue honor code  violations  against  the  applicant  largely  on
subjective grounds while not pursuing two other cadets  that  were  in
essentially the same situation as the applicant.  Counsel states  that
the  instructor’s  credibility  must  be  questioned   because   other
witnesses contradicted him.  He notes that the  cadet  the  instructor
served as academic advisor to was one of two cadets who testified that
50 to 70 percent of the code for the disputed problem was given to the
cadets in the course.  The instructor maintained that the solution  to
the problem was unique and the  only  way  the  applicant  could  have
reasonably gotten it was through another cadet in  a  previous  course
because the solution was unique and had  been  developed  by  him  and
another  instructor.   Counsel  notes  that  the  board’s  own  expert
contradicted this and pointed out that someone could come up with  the
solution using Internet sites.  Counsel states that  no  evidence  was
ever presented that the applicant had ever seen or obtained a copy  of
the solution for the homework 6 assignment.   He  finds  it  troubling
that the honor board relied  upon  the  instructor’s  opinion  on  the
homework problem and disregarded the evidence  showing  the  applicant
and another cadet came up with solutions by viewing various web  sites
and correctly working out the simple chart solution.

  e.  Counsel states the applicant received inequitable treatment  due
to a change of Academy leadership, the 2003  sexual  assault  scandal,
and a move to harsh disciplinary responses, all of which occurred when
the applicant’s honor code case was under review.   Counsel  discusses
how the new leadership failed to properly review honor code cases  and
how the Commandant failed to follow through on an  agreement  to  meet
with the applicant to discuss his honor board. Counsel also notes  how
the review by the acting Superintendent precluded the  applicant  from
having the benefit of a full independent evaluation.   Counsel  opines
that the applicant received the harshest sanction possible because  of
the  across-the-board  crackdown  at  the  Academy.   Instead  of  the
applicant being required to complete his obligation to the  Air  Force
by serving on active duty in  enlisted  status,  he  was  required  to
reimburse the government for his education.  According to  counsel,  a
handout from the Academy Area Defense Counsel states that the  Academy
normally requires disenrolled cadets to complete their  obligation  by
serving  active  duty  enlisted  time  rather  than  reimbursing   the
government.  Counsel contrasts the magnitude of the offense  allegedly
committed by the applicant, “failing to properly  document  assistance
received in an ambiguous computer science homework  assignment,”  with
other more egregious  misconduct.   He  states  that  current  Academy
personnel, as well as those assigned over 15 years ago, have not heard
of a single case in the past 20 years where a cadet was not given  the
option of payback by enlisted service.   He  references  the  case  of
another cadet who was allowed to serve  on  active  duty  after  being
found guilty of lying.  As further  evidence  of  the  harsh  sanction
received by the applicant, counsel discusses how the Academy failed to
follow the recommendation of the applicant’s  Air  Officer  Commanding
(AOC) that he be retained.

In further support of the  applicant’s  appeal,  counsel  provided  an
attachment containing the Honor Board transcript, analysis of computer
code, rebuttals, and memorandums for record from the applicant and his
instructor, Academy and medical records, and character  letters.   The
applicant  submitted  three  additional  copies  of   the   attachment
containing the analysis of computer code, the  applicant’s  rebuttals,
and memos.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered the Air Force Academy in June 1999.  During  the
2002 fall semester, his senior year, the applicant was referred  to  a
Wing Honor Board.  The board convened on 5 Mar 03 to hear evidence and
make findings on the following allegations made against the applicant:

        a.  Cheating by copying portions of another  cadet’s  computer
code for the Computer Science (Comp  Sci)  467,  Programming  Exercise
(PEX) 1 assignment and presenting it as his own work without  properly
documenting the cadet’s work product.

        b.  Cheating by copying portions of the homework solution from
the previous semester for the Comp Sci 467 Homework 6  assignment  and
presenting it as his own work without proper documentation.

        c.  Lying by stating in his documentation  statement  for  the
Comp Sci 467 PEX 2 assignment that he received no assistance when  he,
in fact, had received assistance from another cadet.

The Honor Board found that the applicant violated  the  Academy  Cadet
Wing Honor Code by committing items a. and b.  He  was  not  found  to
have violated the Honor Code in item c.  The applicant was  no  longer
qualified for commissioning and had the option to resign  or  to  have
his case heard by  the  Commandant.   In  a  delegation  of  authority
memorandum dated 25 Apr 02, the Secretary of  the  Air  Force  (SECAF)
appointed the Superintendent of the Academy as disenrollment authority
on  all  cases  of  honor  code  violations.   On  5   Aug   03,   the
Superintendent reviewed the findings of the Wing Honor Board  and  all
of the applicant’s additional appeal matters  and  directed  that  the
applicant be disenrolled and  ordered  to  financially  reimburse  the
government for the cost of his Academy education.  On 8  Aug  03,  the
applicant appealed the reimbursement recommendation.  On  28  Aug  03,
the  Superintendent  appointed  an  Investigating  Officer   (IO)   to
investigate the applicant’s appeal and determine the validity  of  the
debt of $136,478 he incurred for his Academy education.  The IO  found
the debt to be valid and the amount correctly calculated.  On  23  Dec
03, the SECAF Personnel Council (SAFPC), recommended the applicant  be
disenrolled and required to reimburse the Government for the  cost  of
his Academy education.  On 5 Jan 04, the SECAF directed the  applicant
be discharged from the Academy with an honorable discharge and that he
be required to reimburse the Government for the cost  of  his  Academy
education.

_________________________________________________________________

AIR FORCE EVALUATION:

The Academy JA recommends denial of the  applicant’s  requests  except
for the medical discharge.  They do not make a recommendation  on  the
medical discharge because the applicant’s medical records could not be
located.

They respond to each area raised by applicant’s counsel as follows:

        a.  As of the time the advisory was prepared, the  applicant’s
medical records could  not  be  located.   In  response  to  counsel’s
assertion that the applicant’s rheumatoid arthritis should  have  been
mentioned during the honor board, they note  that  the  applicant  was
given an opportunity during the honor board to present  all  defenses.
Regarding the issue of dual processing, they  note  that  AFI  36-3208
referenced by counsel is  an  airman  discharge  regulation  and  that
cadets do not fall into this category.  They state that  AFI  36-2020,
the applicable regulation for cadet disenrollment,  does  not  require
that the cadet be dual processed for disenrollment.

        b.  Due Process.  Academy JA points out that neither  AFI  36-
2020 nor  the  Honor  Handbook  requires  multiple  boards  for  honor
violations  that  stem  out  of  the  same  incident.   Regarding  the
assertion  that  board  members  were  confused  by  the  quantity  of
documents and that none of the board  members  were  computer  science
majors, they note that a board is randomly  picked  and  there  is  no
requirement that the members have some specialty in the subject matter
of the allegations.  This is  the  reason  an  independent  expert  is
called in to answer questions.  They note that the reference given  by
counsel to  show  the  board  members  were  confused  refers  to  the
applicant stating, “I’m not very organized.  There are too many papers
here,” not one of the board members.  The applicant alleges he was not
given adequate notice of the evidence against him and was not given an
independent expert witness.  The applicant admits  he  was  given  the
evidence in his case  several  days  before  his  board.   The  expert
witness used in the case was independent of both sides.  Additionally,
the applicant was  able  to  call  an  additional  independent  expert
witness with the authorization of the board chairman if he so desired.
 The Honor Division is not obligated to provide an expert  witness  on
behalf of the applicant.  Regarding  the  applicant’s  allegation  the
instructor bringing the charges against him was not present, they note
he testified via telephone and that it is standard  practice  for  the
honor chairman to get verbal approval for this from the Chief  of  the
Honor Division when the initiator cannot physically  appear.   Academy
JA also addresses the applicant’s assertions regarding  not  receiving
adequate notice of the expert witness and not being allowed  to  speak
to  her  before  the  board.   They  note  that  while  it  cannot  be
ascertained whether  the  applicant  received  notice  of  the  expert
witness’s testimony, he had approximately two months to  request  that
the chairman  call  an  expert  witness.   Regarding  the  applicant’s
allegation the board members were “frazzled or  tired,”  according  to
the Honor Division, reasonable breaks were taken for lunch and  dinner
and the cadets were given the opportunity to call  for  recesses  when
they believed it necessary.  They point out there is  no  evidence  to
support the applicant’s allegation the  chairman  was  biased  against
him.  Finally, regarding the applicant’s allegations about  the  board
being confused, they note that the references on the board  transcript
provided by the applicant are taken out of context and do not refer to
any confusion over a technical computer science program issue.

        c.  Mistake of  Fact.   As  honor  boards  are  administrative
processes, mistake of fact and other jury member instructions are  not
given.  Honor board members are  allowed  to  consider  all  evidence.
They also note that even though a formal mistake of  fact  instruction
is not provided during the honor board, the  applicant  addressed  the
issue during the board.

        d.  Evidence Was Not Beyond  a  Reasonable  Doubt.   That  the
evidence was not beyond a reasonable  doubt  is  the  opinion  of  the
applicant and not the error of the board.  The applicant alleges  that
the authority of  the  instructor  carries  an  inordinate  amount  of
weight.  In this case the instructor was the initiator  of  the  honor
board.  Since the board proceedings are not recorded, it is impossible
to determine how much weight he carried with the board.  Regarding the
instructor’s testimony diminishing the full impact of the  applicant’s
first key witness because the instructor  testified  afterwards,  they
note it is up to the  board  chairman  to  determine  what  order  the
witnesses testify.  The only preference the applicant would  have  had
is whether to testify before or  after  all  of  the  witnesses.   The
Academy JA again addresses the issue of the absence of an  independent
witness and notes that the applicant was permitted 72 hours to  review
evidence before the board.  If he found new evidence after the  board,
he is allowed to present new  matters  that  the  Commandant  and  the
Superintendent consider.  The applicant  alleges  the  instructor  was
biased against him, but it is impossible  to  say  what  his  attitude
towards the applicant was since they do not have documentation of  any
problems.  They note that the instructor  provided  a  basis  for  his
different recommendation in the case of  another  cadet  with  similar
circumstances  as   the   applicant.    Regarding   the   instructor’s
credibility,  Academy  JA  notes  that  although  the  instructor  was
corrected two times at the board, this does not lead  to  the  logical
conclusion  that  his  credibility  should  be   suspect.    Regarding
counsel’s contention that the lack of evidence the applicant had  seen
or obtained a copy of the solution  for  Homework  6  means  that  the
burden of proof was not met, it is up to board  members  to  determine
whether or not the applicant had access to the solution to Homework 6.
 The lack of direct evidence does not mean the board  could  not  find
beyond a reasonable doubt.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel responded to the Air Force evaluation as follows:

        a.  The Academy was unable to locate the  applicant’s  medical
file and did not respond to arguments regarding applicant’s rheumatoid
arthritis.  The Academy does not contest  the  applicant’s  rheumatoid
arthritis since they lost his medical records.   Counsel  states  that
the evaluation incorrectly states that the applicant contends the  Air
Force failed to properly evaluate  his  rheumatoid  arthritis  and  to
issue him a medical discharge….  Counsel states that the point is that
Academy doctors did evaluate the applicant correctly and in  a  timely
manner and determined he had rheumatoid  arthritis,  but  the  Academy
failed to  follow  up  with  the  second  medical  review,  which  was
stipulated in the first review.  The first Medical Review Board (MEB),
19 Dec 01, states the applicant was not qualified for worldwide  duty,
not qualified for commissioning, not qualified for a  waiver  at  that
time, and was directed to have another medical review.  Counsel opines
that since the applicant’s condition continued to progress,  he  would
have “most certainly” been given a medical discharge.  Counsel  states
the applicant never stated  in  his  brief  that  the  impact  of  his
rheumatoid arthritis should have been mentioned at  his  honor  board.
Nonetheless, it should have been discussed  as  part  of  the  overall
review during  the  Commandant  and  Superintendent’s  evaluation  for
sanction.  Counsel further opines that  although  AFI  36-3208  is  an
airman discharge regulation, certainly such dual processing could have
been considered for the applicant’s case.

        b.  Due Process.  Although the Academy states that  applicable
directives do not require multiple boards for honor  allegations  that
stem out of the same incident, the assignments in the applicant’s case
clearly do not stem out of the same incident.   The  circumstances  of
the applicant’s case may have  been  similar,  but  are  not  related.
Counsel opines this substantiates the fact the applicant  should  have
been allowed separate hearings  for  fairness  and  clarity.   Counsel
states the Academy failed to follow its own rules  and,  subsequently,
combined three separate honor accusations that did not stem  from  the
same incident into one.  This hindered and biased the case against the
applicant.  Counsel indicates that the  applicant  never  claimed  the
“cadet honor  chairman”  should  have  picked  cadets  with  extensive
knowledge of the subject matter.  However, he opines it is  reasonable
and essential for the honor chairman, as a neutral member, to  suggest
that the applicant  secure  an  expert  witness  to  offset  technical
opinions presented by an instructor, especially when  allegations  are
contested.  Counsel further discusses why permitting an expert witness
for the applicant would have allowed a more equitable hearing and  why
the  time  given  the  applicant  to  prepare  for  the  hearing   was
inadequate.  Counsel notes why it was not possible for  the  applicant
to have legal consultation during breaks in the hearing  and  why  the
cadets were tired during the hearing.  He  asserts  that  no  recesses
were called in the 16-hour hearing with one short lunch break and a 30-
minute break for dinner.  Counsel notes that while the Academy asserts
there was no evidence  the  cadet  chairman  was  biased  against  the
applicant, the cadets did notate that the chairman had a condescending
attitude and demeanor, which set the  tone  for  the  entire  hearing.
Counsel also addresses the Academy’s assertion that the  quotes  given
by the applicant were out of context in reference to one of the  board
cadets.

        c.  Mistake of Fact.  Counsel notes the Academy states that  a
mistake of fact instruction was not given to the cadets because it  is
an administrative process.  However, according to counsel,  there  was
nothing prohibiting this instruction and it would have given the board
another perspective to  consider.   Such  an  instruction  would  have
clarified the inadequate guidance  already  existing  on  “intent”  at
paragraph 1.3.3 of the Honor Code Handbook.  Counsel points out why he
believes a mistake of  fact  instruction  could  have  resulted  in  a
different board finding, especially when the applicant missed a number
of classes and relied on his classmates for help.

        d.  Evidence Not Beyond a Reasonable  Doubt.   Counsel  states
that Academy JA presents an incomplete summary of what  the  applicant
stated in his brief on this issue.  He stresses that  the  main  point
was that the instructor’s MFRs, which were read first were repetitious
and opinionated and that the  applicant  asked  that  the  remarks  be
redacted, as is customary in an evidentiary MFR.  Counsel  notes  that
the cadet chairman  denied  the  request.   Counsel  opines  that  the
applicant’s case presents an example of an  instructor  carrying  more
weight in a complex hearing like the applicant’s even when he  is  not
an expert.  He opines that even without real evidence of cheating  and
with other evidence and testimony favorable to the applicant,  he  was
found guilty.  Counsel discusses  the  issue  of  the  board  chairman
deciding the order that witnesses  testify.   He  states  the  Academy
fails to acknowledge that the order  was  changed  because  the  board
spent approximately three hours unsuccessfully trying  to  locate  the
instructor.  Regarding the  Academy’s  contention  the  applicant  was
allowed to present new evidence to the Commandant  and  Superintendent
after the board for consideration, he states the applicant did  submit
evidence important for their review and that the  Commandant,  through
his secretary, stated he would contact the applicant to speak  to  him
after reviewing his file.   The  Commandant  never  followed  through.
Counsel also notes that the efforts of another cadet who observed  the
hearing and  put  his  concerns  in  an  MFR  were  ignored.   Counsel
discusses  Academy  JA’s   assertion   they   cannot   determine   the
instructor’s  attitude  toward  the  applicant.   He  references   the
observation  of  an  official,  independent  observer  regarding   the
instructor’s demeanor toward the  applicant.   Counsel  discusses  the
instructor’s decision not to forward another  cadet  with  essentially
the same circumstances as the applicant to the honor  board.   Counsel
also discusses why  this  fact  and  other  issues  support  that  the
instructor’s credibility should be suspect.  Finally,  counsel  states
that the Academy JA misses the point with their statement that because
there was not a copy of the homework 6 solution found it did not  mean
the board could not find the  applicant  guilty  beyond  a  reasonable
doubt.  Counsel states that the point is there was never any  evidence
at all to show the applicant had access to a copy of the solution.

        e.  Inequitable Treatment.  Counsel asserts that  the  Academy
JA failed to address the applicant’s claims of inequitable  treatment.
The applicant urges the Board to view this as a  concession  that  his
claim is, therefore, established by the evidence and should be grounds
for relief.  Counsel argues there was a major leadership change at the
Academy that deprived the applicant of a thorough review of his  case.
He states the Commandant reneged on an agreement  to  meet  personally
with the applicant.  He also  asserts  the  instructor  was  given  an
opportunity to address the honor board  but  the  applicant  was  not.
Counsel states that the new, harsh sanctions in 2003 for alcohol abuse
and sexual misconduct apparently carried  over  to  the  sanctions  in
honor board cases.  This led to the applicant not being allowed to pay
back his obligation through enlisted service, as was  the  established
practice.  Counsel notes the Academy has not provided  evidence  of  a
single case where monetary payback instead  of  enlisted  service  was
required.

Counsel opines the Academy admits  it  lost  the  applicant’s  medical
records, does not challenge the claim that his fitness for service was
mishandled, and does not object to a  medical  discharge.   He  opines
that a preponderance of the evidence establishes  there  were  serious
flaws in the applicant’s honor board.  Counsel states the Academy does
not  attempt  to  refute  the  claim  that  the   applicant   received
inequitable treatment during the final processing of his case.

Counsel’s complete response is at Exhibit E.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, the BCMR Medical Consultant  prepared
an evaluation of the applicant’s case to address the issues related to
his rheumatoid arthritis.  The BCMR Medical Consultant recommends that
no change in the applicant’s  records  be  made  based  on  his  sero-
negative rheumatoid arthritis.

The  applicant  developed  a   potentially   medically   disqualifying
condition, sero-negative rheumatoid arthritis,  after  completing  two
years at the Academy.   Although  a  chronic  arthritis  is  generally
disqualifying for  induction,  commissioning  or  enlistment,  medical
standards for continued military service are applied to Academy cadets
who  have  completed  two  years.   Medical  standards  for  continued
military service (AFI 48-123, Attachment  2)  state  that  “rheumatoid
arthritis … with  substantiated  history  of  frequent  incapacitating
episodes supported by objective and subjective findings” is cause  for
referral for medical evaluation board to determine fitness  for  duty.
Treatment with methotrexate for sero-negative rheumatoid arthritis  is
not cause for  referral  for  medical  evaluation  board  and  is  not
disqualifying for continued military service.  A diagnosis alone  does
not automatically result  in  a  finding  of  unfitness  for  duty  or
disqualification from the Academy.  During the fall  semester  of  his
junior year, when symptoms of his arthritis were at their  worst,  the
applicant was not incapacitated, although he noted it was difficult to
keep up with his academics.  Treatment with methotrexate  resulted  in
attainment of clinical remission by the end of the spring semester  of
his junior year and the evidence of record  indicates  maintenance  of
that remission through the fall semester of his senior year and to the
time of his letter to the  AFBCMR  dated  in  Aug  04.   There  is  no
evidence in the medical records that shows the  applicant  experienced
side effects from medication that impaired his academic performance or
his ability to know right from wrong and adhere to  the  right  during
the fall semester of his senior year.

The applicant asserts  he  missed  numerous  classes  due  to  medical
appointments and available medical  records  show  the  applicant  had
medical appointments on  four  occasions  during  the  fall  semester;
however, it is not known whether these correlate with missed  Computer
Science 467 classes or if there were other  medical  appointments  not
present in the case file.

The applicant asserts an error in the fact that there  was  no  formal
Cadet Medical Evaluation Board (CMEB) in May 02, or in the fall of 02.
 The original CMEB in  Dec  01  during  the  applicant’s  junior  year
concluded that his condition was severe enough  at  that  time  to  be
disqualifying but that the good prognosis with treatment expressed  by
the rheumatologist, combined with his motivation and ability  to  meet
academic standards, resulted in retention in the  Cadet  Wing  with  a
reevaluation directed for May 02.  That reevaluation did occur in  May
02 with objective evidence supporting a finding of fit  for  continued
duty.  A review of USAFAI 48-104 and discussions with the commander of
the unit responsible for the overall management of  the  CMEB  process
indicates that a CMEB is not indicated when cadets meet the applicable
medical standards.  Periodic reviews instead of  a  CMEB  following  a
formal CMEB are routine and likely what happened in  this  case.   The
reference in Aug 02 by the civilian rheumatologist to a  Nov  02  CMEB
likely refers to another review directed by the CMEB  program  manager
resulting from the May 02 review.  In May and Nov 02, the rheumatology
evaluations  indicated  that  the  applicant  was  fit  for  continued
military service.

The complete evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant’s counsel responded to the additional Air  Force  evaluation
in a five-page brief with attachments.  Counsel notes that the purpose
for submitting the applicant’s medical  background  was  to  show  the
AFBCMR how the applicant’s illness eventually affected the  course  of
events and to document that the Air Force failed to fully evaluate his
rheumatoid arthritis  (RA)  with  respect  to  his  military  service.
Counsel  states  there  were  many  consequences  of  the  applicant’s
illness, but the Academy not following a directive to conduct a second
cadet medical evaluation board (CMEB) also had consequences.   Counsel
further points out that the applicant’s appeal does not rest solely on
the fact that the  Academy  failed  to  conduct  the  second  CMEB  as
directed, although it might have identified  the  need  to  issue  the
applicant a medical discharge before  eventual  conflicts  started  to
happen.

Counsel seeks to clarify several statements  and  misconceptions.   He
opines that the BCMR Medical Consultant advisory seems to present  the
applicant’s illness casually and downplays its effect on Academy life.
 He states it further  minimizes  the  side  effects  of  the  disease
modifying and immunosuppressant drug, Methotrexate  (Counsel  attached
an information sheet on the drug).  Counsel discusses the  effect  the
applicant’s rheumatoid arthritis had on him contrary to the impression
presented in the BCMR Medical Consultant opinion. While the  applicant
did not manifest the symptoms all the time, it was often enough to  be
affected.  Counsel opines that the second CMEB would  have  been  more
objective than the applicant’s personal  doctors  in  determining  the
applicant’s true fitness for duty and actual medical status.

Counsel states that the advisory is correct in its reference to  other
medical appointments not being in the case file.  He  notes  that  the
applicant missed numerous classes  for  various  reasons  due  to  his
illness and that some  were  logged  visits  while  others  were  not.
Counsel states that the number of absences  and  their  correspondence
with missing  classes  was  never  a  point  of  contention  with  the
instructor and that the applicant’s roommate and AOC were specifically
aware of his frequent appointments and absences.  Counsel  also  seeks
to clarify that the applicant “never stated that he contended that the
Cadet Honor Board did not properly  consider  his  medical  problems.”
The applicant states in his summary to the BCMR that if the Air  Force
had correctly  evaluated  his  rheumatoid  arthritis  in  relation  to
military  service,  he  would  have  been   disenrolled   before   any
consequences of his illness occurred.  Counsel discusses the reference
in the advisory to the applicant’s periodic  medical  examination  and
Standard Form 93, dated 10 Sep 01.  He notes at this time the official
diagnosis of the applicant’s illness  was  not  yet  complete  due  to
ongoing testing and evaluation.  The official diagnosis was  given  on
28 Nov 01 and the applicant was placed on Methotrexate.  On 14 Dec 01,
a CMEB made its official report and  issued  a  directive  to  hold  a
second CMEB to evaluate  the  applicant’s  status.   The  report  also
indicated the applicant was not  qualified  for  worldwide  duty,  for
commissioning, flying, or for a waiver at that time.

Counsels discusses the comments  made  in  the  advisory  regarding  a
statement by the applicant’s doctor that he was “back to normal and is
running/playing tennis/weight  lifting.”   Counsel  seeks  to  clarify
three points:

        a.  Remission in the applicant’s case is actually  a  clinical
remission held back by an immunosuppressant drug for an unknown amount
of time.

        b.  Rheumatoid arthritis persists commonly with remissions and
flares and  much  of  the  physical  education  sports  the  applicant
participated in were done with much effort, had minimal  requirements,
and often allowed the applicant not to participate at all.

        c.  The BCMR Medical Consultant must not have  been  aware  of
the applicant’s position as Cadet Squadron commander  for  the  Falcon
Sports Camp for children and that his responsibilities did not involve
participating in the sports activities themselves.

Counsel asserts the applicant, upon the advice of his doctor, tried to
taper off Methotrexate, but was unable to as his symptoms  started  to
increase, prompting an eventual increased dosage.  Counsel states they
do agree with the BCMR Medical Consultant’s statement that nowhere  in
the medical records did it state that the  drug  Methotrexate  or  its
side effects had an impact on the applicant’s ability  to  distinguish
right  from  wrong.   Rather  they  assert  that  no  honor  violation
occurred.

Counsel  discusses  their   disagreement   with   the   BCMR   Medical
Consultant’s statement the applicant had completed two  years  at  the
Academy  before  developing  rheumatoid  arthritis.   He  asserts  the
applicant’s medical records confirm that the onset of the  applicant’s
rheumatoid arthritis was Jul 01, which was prior to the two-year mark.
 Counsel therefore concludes the standards for “induction”  should  be
applied  in  the  applicant’s  case  rather  than  the  standards  for
“continued service.”

Counsel states they do not find any basis  in  Air  Force  or  Academy
instructions for allowing routine medical appointments or  updates  to
be substituted for a previous decision to conduct a second  CMEB.   He
notes that the CMEB in 2001 planned  to  do  a  repeat  CMEB  and  the
Commandant of Cadets agreed with  that  decision.   The  BCMR  Medical
Consultant states that the Academy  claimed  that  it  is  routine  to
substitute a simple medical evaluation for a full CMEB.   However,  he
does  not  cite  specific  provisions  in  pertinent  directives  that
actually  authorize  such  a  practice.   Counsel   asserts   that   a
determination  was  made  in  accordance  with  AFI  48-123  that  the
applicant had a potentially disqualifying diagnosis  that  required  a
CMEB and the CMEB was held  in  Nov  01.   That  CMEB  determined  the
applicant was not qualified for commissioning and  that  another  CMEB
was required.  Counsel further asserts the Academy  failed  to  follow
through with the second CMEB and that it is “disingenuous now to claim
that some “periodic reviews in lieu of a  CMEB”  are  routine  and  is
“likely” what happened in this case.  Counsel further states that  the
Academy could not locate the applicant’s medical  records  last  year,
cannot adequately explain why there was  no  second  CMEB  and  cannot
validate why his condition was not fully evaluated in 2002 or 2003.

Counsel’s complete response, with attachments, is at Exhibit H.

_________________________________________________________________

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  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinions and  recommendations  of  the  Air
Force offices of primary responsibility and adopt their  rationale  as
the basis for our conclusion that  the  applicant  has  not  been  the
victim of an  error  or  injustice.   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   issues   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 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 Docket  Number  BC-2004-
02895 in Executive Session on 13 September 2005, under the  provisions
of AFI 36-2603:

      Mr. John B. Hennessey, Panel Chair
      Ms. Renee M. Collier, Member
      Mr. Richard K. Hartley, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 10 Aug 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, HQ USAFA/JA, dated 25 Oct 04.
    Exhibit D.  Letter, SAF/MRBR, dated 19 Nov 04.
    Exhibit E.  Letter, Counsel, dated 15 Dec 04.
    Exhibit F.  Memorandum, BCMR Medical Consultant,
                dated 15 Jun 05.
    Exhibit G.  Letter, AFBCMR, dated 17 Jun 05.
    Exhibit H.  Letter, Counsel, dated 12 Jul 05, w/atchs.




                                   JOHN B. HENNESSEY
                                   Panel Chair