RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-00215
            INDEX CODE:  104.00
            COUNSEL:  Mr. Jeffrey M. Graham
            HEARING DESIRED:  YES

      MANDATORY CASE COMPLETION DATE:  18 JUL 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be returned to cadet status.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was accused of cheating on several Computer Science  programs  and  on  a
homework assignment.  The Wing Honor Board (WHB) found him in  violation  of
the Wing Honor Code and probation was  recommended  by  the  chairman.   The
Commandant  recommended  disenrollment  and   the   Superintendent   ordered
disenrollment.  The record of  the  WHB  clearly  establishes  that  he  was
denied due process rights.  He  was  denied  a  fair  review  of  the  WHB's
findings.  During the hearing, Mr.  R---  testified  as  an  expert  witness
offering evidence as to how the applicant could  have  mistakenly  forwarded
the wrong information to his instructor.  However, the  transcript  contains
no information as to the substance of Mr. R---'s CD presentation  and  there
is no evidence that the material in the CD was ever seen  by  the  reviewing
authority.  When  the  file  was  obtained  from  the  Academy  Staff  Judge
Advocate Office, it did not include a copy of the  CD.   Further,  there  is
the absence of any reference to the CD in the legal review submitted to  the
superintendent.  The record of the WHB forwarded  for  review  includes  not
only  the  verbatim  transcript,  but  copies  of   the   various   homework
assignments allegedly copied, but does not include  evidence  introduced  by
the applicant.

At the beginning of Mr. R---'s testimony all witnesses  were  instructed  to
leave the room.  Yet when Mr. R---  testified,  Dr.  C---,  the  applicant's
accuser, was asked to remain to  make  comments  on  Mr.  R---'s  testimony.
That was unfair as Mr. R--- was not invited to hear Dr. C---'s testimony  so
he could comment on it.  Throughout  Dr.  C---'s  testimony,  he  repeatedly
sought to have the WHB consider uncharged offenses.  This was  all  done  in
the presence of the legal advisor, whose failure to  intervene  prevented  a
fair hearing.  Testimony before the WHB is not under oath and it is  assumed
that sworn testimony may be based on the belief that all cadets  live  under
the honor code.  But in this case it turned on the unsworn  testimony  of  a
non-cadet witness.  While  the  rules  of  evidence  may  be  relaxed  in  a
proceeding such as the WHB, they cannot be so relaxed as  to  disregard  due
process and fundamental  rights.   The  failure  of  the  applicant's  legal
advisor to intervene not only prevented a fair  hearing  but  also  provided
strong argument for the necessary presence of counsel during  WHB  hearings.


In support of his request, applicant provided his counsel's  brief  and  his
disenrollment case file.  His complete submission, with attachments,  is  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant entered the United States Air Force Academy (USAFA) on 26  Jun  03
in the Class of 2007.  A WHB convened on 27 May 04 to consider  whether  the
applicant cheated by copying portions of one or more other cadets' Comp  Sci
110 PEX 1, 2, and 3 programs and using them  as  his  own;  and  by  copying
portions of one or more cadets' Comp Sci Homework 5 and using  them  as  his
own.  The WHB found  him  in  violation  of  the  Honor  Code  on  all  four
allegations of cheating.  The WHB voted 7 to 1 to recommend probation  based
on the fact he had less than a year under  the  code  and  seemed  genuinely
ashamed of the mistake.  In a legal review  of  the  case  file,  the  USAFA
Staff Judge Advocate found  the  case  legally  sufficient  and  recommended
disenrollment.  The Commandant recommended disenrollment and on 26  Aug  04,
the USAFA Superintendent directed he be disenrolled.  He was disenrolled  on
that date.

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AIR FORCE EVALUATION:

USAFA/JA recommends denial.  JA  states  the  case  was  found  legally  and
factually sufficient.  The transcript of  the  WHB  does  reference  the  CD
presentation shown to the WHB  members.   The  fact  that  the  CD  was  not
attached to the file that was reviewed for legal sufficiency does  not  make
the decision in the case invalid.  Counsel's assertion that  the  transcript
contains no information as to the substance of Mr. R--'s CD presentation  is
factually  incorrect.   The  Superintendent,  had   Dr.   R---'s   testimony
explaining the CD as it was contained in the transcript, but  just  did  not
have the CD itself.  Most importantly, the eight  WHB  voting  members  that
found the applicant in violation of the Code, saw Mr.  R---'s  presentation.


The Board Legal Advisor provided a memorandum explaining  the  decision  she
made as they relate to several of the  applicant's  complaints.   She  noted
that to the best of her knowledge Dr. C--- and Mr. R--- were both  permitted
to remain in the room to hear the other's testimony.  Reciprocity was  given
to both experts.  Both also made subjective comments on the  record  in  the
nature of what they believed the evidence showed.  Experts are permitted  to
give their expert opinion on the relevant evidence.   While  Military  Rules
of Evidence (M.R.E.) do not apply to WHB proceedings, the accepted and  fair
practice of expert witnesses giving opinion on the ultimate issue  is  found
in M.R.E. 702 & 704.   She  allowed  the  testimony  of  uncharged  offenses
because the  allegations  presume  that  others  were  involved,  either  in
supplying their programs or allowing the applicant to copy them.   Thus,  it
was absolutely necessary for Dr. C--- to introduce policy on  collaborating.
 The reason cadets are not entitled to counsel at WHB's is addressed in  the
Air Force Cadet Wing Honor  Code  Reference  Handbook.   The  applicant  was
afforded the right  to  counsel  as  prescribed  in  the  handbook  and  any
argument that this violated his  right  to  a  fair  hearing  is  misplaced.
Cadets  and  witnesses  are  not  sworn  in  at   WHB's   because   of   the
administrative nature of the proceedings.  WHBs are not  legal  proceedings.
The JA evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel states JA misses the point.  The  record  of  the  hearing  was  not
verbatim as required by  the  Academy's  own  rules.   Neither  JA  nor  the
Superintendent knew what was in Mr. R---'s presentation at the time the  WHB
findings were approved and still do not know.  It is JA's position  that  if
a WHB finds a violation there is no need for a reviewing  authority  to  see
the totality of the evidence presented to the WHB.  In  a  recent  case  the
Superintendent reversed a WHB finding because  the  Superintendent  was  not
convinced there was sufficient evidence to sustain the WHB findings.  Mr. R-
-- has provided an affidavit stating that he  was  not  present  during  the
direct testimony of Dr. C--- and he  was  never  given  the  opportunity  to
respond to Dr. C---'s comments.  The statement of the  Board  Legal  Advisor
reflects what is wrong with the administration of the honor  system  at  the
Academy both generally and specifically.  The  applicant  was  charged  with
submitting work that was not his own.  He did not  deny  the  submission  of
such material but states that the submission was  inadvertent.   The  result
of accidentally saving and then transmitting the  work  of  cadets  who  had
been helping him with the assignment.  The purpose of  Mr.  R--'s  testimony
was to illustrate and explain to the WHB  how  such  a  mistake  could  have
taken place given the "inherent symbolic nature of Raptor".

His complete response, with attachments, 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.  After careful review  of  the  applicant's
submission and the circumstances surrounding the  applicant's  disenrollment
from the United States Air Force Academy, we find no evidence  of  error  or
injustice with respect to his disenrollment action.   In  this  regard,  the
Board notes that the voting members of the WHB concluded that the  applicant
was in violation of all four allegations of cheating.  It appears  that  the
responsible officials applied appropriate standards in the  conduct  of  the
WHB proceedings and disenrollment process.  We find  no  plausible  evidence
that his due process rights were violated and it is  our  opinion  that  the
actions taken were  conducted  within  the  guidelines  of  the  established
procedures for the administrative proceeding.  Therefore, we agree with  the
opinion  and  recommendation  of   the   Air   Force   office   of   primary
responsibility and adopt its rationale as the basis for our conclusion  that
the applicant has not been the victim of an  error  or  injustice.   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 AFBCMR Docket Number  BC-2005-
00215 in Executive Session on 10 May 05, under the  provisions  of  AFI  36-
2603:

      Ms Cathlynn B. Sparks, Panel Chair
      Mr. Patrick C. Daugherty, Member
      Ms. Marcia J. Bachman, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 20 Dec 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, USAFA/JA, dated 18 Feb 05, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 4 Mar 05.
    Exhibit E.  Letter, Counsel, dated 28 Mar 05, w/atchs.




                                   CATHLYNN B. SPARKS
                                   Panel Chair