RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-03720
            INDEX NUMBER:  104.00
      XXXXXXX    COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

The DD Form 785, “Record of Disenrollment from Officer  Candidate-Type
Training,” prepared on him, dated 13 Jan 01, be amended in Section IV,
“Evaluation  to  be  Considered  in   the   Future   for   Determining
Acceptability for other Officer Training”  be  changed  from  item  3,
“Should not be considered without weighing the “needs of the  service”
against the reason for this disenrollment,” to item 2, “Recommended as
an average candidate.”

The comments on his DD Form 785 be amended to  better  correlate  with
Section  IV,  item  2  and  the  Cadet  Form  34,  “Cadet   Separation
Clearance/Referral,” prepared by his Squadron  and  Deputy  Group  Air
Officers Commanding (AOCs).

_________________________________________________________________

APPLICANT CONTENDS THAT:

He  has  fulfilled  his  enlisted   commitment   for   his   honorable
disenrollment from the United States Air Force Academy  (Academy)  due
to personal reasons and would like his DD Form  785  match  his  Cadet
Form 34 to better pursue  future  commissioning  opportunities  as  an
active duty member of the Regular Air Force.

The comments on his DD Form 785 contradict the comments on  the  Cadet
Form 34 to justify selection of item 3 in Section IV.  His  AOCs  knew
him and his situation better than the Academy JA  who  signed  the  DD
Form 785.

When he left the Academy, the Academy JA  paralegal  specialist  noted
the discrepancy between the DD Form 785 and Cadet Form 34.  After  she
contacted his AOC, she advised him they would  pursue  a  Section  IV,
Item  2  recommendation  on  the  DD  Form  785   with   the   Academy
Superintendent.  He later learned the Superintendent would not support
an item 2 recommendation.  He is aware of a Reserve  Officer  Training
Corps (ROTC) cadet whose unit waived  his  dishonorable  disenrollment
Section IV, Item 3 recommendation.

He was told he was given a Section IV, Item 3 rating  because  of  his
100 demerits and pending separation from the Academy.  His reason  for
separation was personal and honorable.  He never  violated  the  honor
code as he could have easily done to conceal his situation.  Based  on
his performance and accomplishments, he believes his records should be
changed.

In support of his appeal,  applicant  provides  a  two-page  statement
explaining the circumstances of his case, a copy of the DD  Form  785,
Cadet Form 34, an e-mail from the  Academy  JA  Paralegal  Specialist,
copies of his enlisted performance reports (EPRs), and a resume.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered the Academy on 30 Jun 98.  While  in  his  third
year, he was scheduled to meet a Military Review Committee  (MRC)  for
accumulating 100 demerits; 50 for fraternizing  with  a  female  Basic
Cadet and keeping her out past curfew when he was an upperclassman and
50 demerits for violating a no contact order regarding the same  Basic
Cadet.  However,  prior  to  the  MRC,  the  applicant  submitted  his
voluntary resignation for “personal reasons” on 13 Jan 01.  On the  DD
Form 785, regarding the applicant’s “acceptability for  other  officer
training,” item 3 was marked in Section IV, “should not be  considered
without weighing the needs of the service against the reasons for this
disenrollment.”  The applicant was ordered to active duty for a period
of two years.  The applicant entered active duty on 3 Feb  01  and  is
serving in the grade of staff sergeant.  He has  received  three  EPRs
since entering active duty, all with overall ratings of “5.”

_________________________________________________________________

AIR FORCE EVALUATION:

The Academy JA recommends the applicant’s requests be denied.

Regarding the applicant’s request to change the recommendation on  the
DD Form 785, Section IV, from item 3 to item 2, they note there is  no
factual or legal  reason  to  support  such  action.   They  note  the
documentation contained in a cadet’s package that resigns in  lieu  of
involuntary disenrollment action and the  resignation  is  uncontested
such  as  the   applicant’s.    The   Superintendent   considers   all
recommendations  and  matters  submitted  and  “personally”  makes   a
decision as to what rating  goes  on  a  cadet’s  DD  Form  785.   The
Superintendent was the final authority in the applicant’s case.

The applicant asserts there is a discrepancy between the comments made
on his DD Form 785, Section III and Section IV remarks and those  made
by his AOCs on the Cadet Form 34.  He is  correct  that  the  comments
differ.  However, this is because the comments in Section IV  are  the
Superintendent’s not the AOCs.  They note that USAFA/JACD  prepares  a
DD Form 785 on any cadet pending disenrollment in accordance with  AFI
36-2020, paragraph 9.2.  USAFA/JACD  prepares  the  comments  in  both
Sections III and IV, but the comments in Section IV are put before the
Superintendent for review.  Sometimes when the comments in Section  IV
are too large,  the  comments  begin  in  Section  III,  such  as  the
applicant’s case.

USAFA/JA notes that the e-mail prepared by their Paralegal  Specialist
furnished to an administrator in the applicant’s orderly room  was  in
error when  it  stated  the  Academy  JA  would  have  downgraded  the
applicant’s rating to a three, regardless….  They  note  they  do  not
have  the  authority  to  downgrade  or  upgrade  ratings,  only  make
recommendations to the Superintendent.   They  also  note  the  e-mail
incorrectly states that “… all cadets that depart the Academy with any
type of “baggage”--to  include  grade  and  athletic  deficiency  will
receive a “3”  rating  (or  below)  if  there  is  serious  misconduct
involved….”   They  note  the  Superintendent  considers   each   case
individually and that there is no policy at the Academy that a certain
type of conduct “will” result in a certain type of rating on a cadet’s
DD Form 785.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant indicates there are errors in the Air  Force  evaluation  he
wants to correct.  Applicant  states  the  USAFA/JA  is  incorrect  he
received demerits for fraternizing with a Basic Cadet.  He states  the
cadet (now his wife) was a Fourth Class Cadet and had already received
her shoulder boards at the time of the conception of their  child  and
the demerits he received for fraternization.  He states at no time did
his actins involve his wife as a Basic Cadet.

Applicant discusses that it was his decision and action to voluntarily
disenroll and he was not under the impression or understanding he  was
pending separation from the Academy as a Cadet for  any  action  other
than he was about to be in violation of the paternity  clause  of  the
USAFA Form O-205.

Applicant clarifies the position of the individual the USAFA Paralegal
Specialist corresponded with in his case.

Applicant states the  Air  Force  evaluation  failed  to  address  the
discrepancies between his case and that of another cadet and  how  the
Academy treated them differently.  He explains the circumstances  this
Cadet left the Academy under and how  he  later  gained  a  commission
through ROTC after receiving a dishonorable rating from  the  Academy.
He states this Cadet advised him he had his records amended or changed
to get a waiver of the DD Form 785 when he applied to ROTC.

Applicant disagrees with the recommendation by USAFA/JA in  his  case.
The authors of the evaluation were not present  at  the  time  of  his
disenrollment and do not know the specifics, nor  do  they  understand
the unique circumstances of his case as can  be  seen  by  the  errors
contained in the evaluation.

The applicant submitted a  duplicate  copy  of  his  rebuttal  with  a
different date.

Applicant’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  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinion and recommendation of the Air Force
office of primary  responsibility  and  adopt  its  rationale  as  the
primary basis for our conclusion that the applicant has not  been  the
victim of an error or injustice.  We note that the preparation of  the
USAFA Form  34  and  DD  Form  785  are  separate  processes  with  no
requirement  they  mirror  each  other.    Additionally,   while   the
applicant’s evaluation in section IV of the DD Form 785 may  make  his
efforts to be selected for officer training more difficult, it is  not
disqualifying.  Given the overall circumstances of  his  disenrollment
from the Academy, we do not find the evaluation in section IV  of  the
DD Form 785 to be arbitrary or capricious.  Additionally,  the  rating
appears to be  within  the  discretionary  authority  of  the  Academy
Superintendent as represented by his Deputy Staff Judge Advocate.  The
applicant emphasizes he left the Academy  due  to  his  own  voluntary
actions.  However, there appears to be a reasonable basis to speculate
disenrollment action may have been initiated  against  him.   Finally,
the applicant references the case  of  another  disenrolled  cadet  he
alleges left the Academy under worse circumstances than  his  yet  had
his DD Form 785  changed  leading  to  an  eventual  commission.   The
applicant has not provided sufficient evidence to substantiate he  was
the victim of disparate treatment  warranting  the  relief  he  seeks.
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-
03720 in Executive Session on 22 February 2005, under  the  provisions
of AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Mr. James E. Short, Member
      Mr. James W. Russell III, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 Nov 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, USAFA/JA, dated 11 Jan 05.
    Exhibit D.  Letter, SAF/MRBR, dated 21 Jan 05.
    Exhibit E.  Memorandum, Applicant, dated 28 Jan 05.
    Exhibit F.  Memorandum, Applicant, dated 10 Feb 05.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair