RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-00091
            INDEX NUMBER:  128.00
      XXXXXXX    COUNSEL:  Raymond J. Toney

      XXXXXXX    HEARING DESIRED:  Yes


MANDATORY CASE COMPLETION DATE:  28 Dec 06


_________________________________________________________________

APPLICANT REQUESTS THAT:

The requirement to repay the government the $97,169.00 expended on his
education at the United  States  Air  Force  Academy  (USAFA)  (herein
referred to as Academy) be waived.

In the alternative, the amount of  his  debt  to  the   government  be
reduced by 80% as a means of  allocating  fault  to  the  Academy  for
failure to supervise him and provide required medical assistance in  a
timely manner.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In a 20-page Brief of Counsel with 20  exhibits,  applicant’s  counsel
seeks to make  a  case  that  the  United  States  Air  Force  Academy
neglected its cadets (which included the applicant)  in  the  area  of
alcohol consumption and abuse.  The Academy’s responsibility  for  the
actions  leading  to  the  applicant’s  proposed   disenrollment   and
subsequent resignation from the Academy makes  holding  the  applicant
accountable for repayment of the cost  of  his  Academy  education  an
injustice.  Counsel  opines  that  the  AFBCMR  should  not  deem  the
applicant’s conduct to be “voluntary” or “misconduct,” considering the
applicant’s physical and mental health condition at the time  and  the
current state of federal law.

Counsel states there are two fundamental questions for  the  Board  to
decide:

        a.  Whether or not a cadet who suffers from alcohol abuse  and
dependency, and  who  is  involuntarily  disenrolled,  or  voluntarily
resigns in lieu thereof, because of alcohol-related incidents, can  be
deemed to have been separated because of voluntary or other conduct.

        b.  Whether or  not  a  minor  who  is  permitted  to  consume
alcoholic beverages on Academy premises, and who’s  alcohol  abuse  is
known to Academy officials, and who is disenrolled from  the  Academy,
or resigns in lieu  thereof,  because  of  alcohol  related  incidents
should, based on principles of equity  and  fundamental  fairness,  be
held  responsible  under  10  USC,  Section  2005  for  repayment   of
expenditures for his Academy education.

Counsel states that there appear to be no decided cases, by the  Board
or in the federal courts, addressing the question of  whether  alcohol
abuse and dependency can render conduct involuntary for purposes of 10
USC, Section 2005.  However, federal court  decisions  do  make  clear
that where a cadet is separated for conduct that is underpinned  by  a
physical or mental  disorder,  recoupment  of  government  expense  is
inappropriate.  Counsel states that the evidence of record,  including
a psychiatric evaluation by a  civilian  psychiatrist,  indicates  the
applicant suffered from alcohol abuse and dependency at  the  time  of
the acts giving rise to the disenrollment action against him  and  his
subsequent resignation.

Counsel discusses the applicant’s problems  with  alcohol  and  states
that alcohol  dependency  is  recognized  as  a  mental  and  physical
disease.  He further states that available evidence demonstrates  that
senior Academy officials repeatedly ignored warning signs  of  serious
alcohol abuse by cadets and that not until the sexual assault  scandal
break in 2003 did the Academy confront the  problem.   Counsel  states
that the applicant continues  to  regularly  abuse  alcohol  and  that
evidence strongly indicates he is an alcoholic.

Counsel discusses the  disenrollment  actions  initiated  against  the
applicant and the reasons cited by the Military Review  Committee  for
the action; (1) deficient military performance average, (2)  excessive
demerits for poor duty performance, (3) unexcused absence from  class,
(4) missed appointments, (5) underage drinking), (6) hit and run,  (7)
reckless  driving,  and  (8)  DUI  arrest.   Counsel  notes  that  the
executive summary prepared for the  MRC  was  noteworthy  in  that  it
recognized the “lack of  support”  the  applicant  received  from  his
friends and roommate.  Counsel also discusses the  applicant’s  appeal
of the MRC’s recommendation he be disenrolled.

Counsel indicates  that  the  applicant  indicated  in  a  16  Aug  01
memorandum he disagreed with the Superintendent’s  decision  to  order
him to reimburse the government for the cost of his education  at  the
Academy.  He notes that an investigation was undertaken and  that  the
investigating officer  (IO),  a  captain  stationed  at  the  Academy,
indicated that his investigation was limited to:

         a.  A  determination  of  whether  the  debt  was  calculated
correctly.

         b.  A  determination  of  whether  the  applicant’s  behavior
constituted misconduct under 10 USC, Section 2005.

The investigating officer determined  that  the  applicant’s  acts  of
underage drinking, driving while under the influence of  alcohol,  and
fleeing the scene of an accident  constituted  “misconduct”  under  10
USC, Section 2005(a)(3) and that the debt of $97,169.00 was calculated
correctly.  Counsel notes that the IO determined that but for the  DUI
incident on 11 May 01, the applicant would not have been disenrolled.

Counsel discusses the Academy Working Group report released on  17 Jun
03 concerning the deterrence of and response to  incidents  of  sexual
assault at the Academy.  According to counsel, the report supports the
applicant’s statements regarding alcohol use and abuse at the Academy.
 The report indicated that alcohol was involved in  at  least  40%  of
investigations of sexual assault.

Counsel makes the following arguments in support  of  the  applicant’s
appeal:

        a.  The  Applicant’s  Actions  leading  to  the  Disenrollment
Proceedings and Resignation Should  Not  be  Considered  Voluntary  or
Misconduct.  Counsel opines that the  question  before  the  Board  is
whether conduct arising from  a  medical  condition  can  be  lawfully
characterized as voluntary or misconduct as contemplated under 10 USC,
Section 2005.  Counsel  further  opines  that  the  comparatively  few
federal court decisions addressing similar  questions  illuminate  the
position the Board should adopt.  Counsel references the United States
v.  Gears  and  notes  that  the  court  concluded  that  the   phrase
voluntarily … fails to complete the period of active duty requires, at
the least, either an intent to produce a separation from  the  service
or an awareness that a chosen course of conduct will  produce  such  a
result.   Counsel  provides  the  court’s  acceptance   of   the   DoD
interpretation of the term “voluntary” in Favreau  v.  United  States.
Although both cases referenced  dealt  with  weight  control,  counsel
emphasizes that the court’s summary of the DoD interpretation  of  the
term voluntary states “so long as  persons  with  medically  diagnosed
problems that interfere with weight reduction or maintaining  physical
fitness may not be separated for weight control  failure  or  lack  of
physical  fitness,”  the  failure  to  meet  standards  is  considered
volitional.  Counsel opines that it follows from the court’s reasoning
that conduct arising from a medical condition cannot  form  the  basis
for recoupment of educational expenses.

         b.  The  Academy  Negligently  Failed  to   Monitor   Alcohol
Consumption, Identify Cadets Who Were Abusing Alcohol, and Refer  Them
for Timely Intervention.  Counsel states that the evidence  of  record
demonstrates that the Academy failed to implement effectively its  own
policies and regulations governing the  consumption  of  alcohol.   He
notes that the IO specifically noted that other cadets had  failed  in
their  duties  to  notify  authorities  of  the  applicant’s  underage
drinking, his use of alcohol in his room,  and  his  use  of  a  motor
vehicle  after  drinking.   He  further  states   that   despite   the
innumerable times the applicant and other cadets were using alcohol in
the dorms,  not  a  single  noncommissioned  or  commissioned  officer
reported their conduct.  Counsel opines that if the applicant’s use of
alcohol had been  reported  to  the  proper  authorities,  then  under
Academy procedures, he would have been  identified  as  an  individual
predisposed  to  alcohol  abuse  and  would  have  been  referred  for
evaluation and treatment.  Although the  applicant  was  counseled  on
multiple occasions regarding his academic  and  military  performance,
the core reason for his poor performance was not identified.

In support of the applicant’s  appeal,  counsel  submits  20  exhibits
containing affidavits from the applicant and his mother, a copy  of  a
psychiatric evaluation, MRC related paperwork,  disenrollment  related
paperwork, a copy of the report of the working  group  concerning  the
deterrence of and response to  incidents  of  sexual  assault  at  the
Academy, medical record extracts, and other documentation.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered the Academy on 30 Jun 98.  On  11  May  01,  the
applicant drove while intoxicated, hit a pedestrian,  and  drove  away
from the scene of the accident.  On 11 Jun  01,  the  Military  Review
Committee  (MRC)  recommended  the  applicant  be  disenrolled  for  a
deficient Military Performance Average (MPA)  and  excessive  demerits
for poor  duty  performance,  unexcused  absence  from  class,  missed
appointments, underage drinking, hit and run,  reckless  driving,  and
DUI arrest downtown.  The applicant  was  on  conduct,  aptitude,  and
athletic probation.  On 27 Jun 01, the applicant submitted a voluntary
resignation in lieu of involuntary disenrollment  in  accordance  with
AFI 36-2020, Disenrollment of U.S. Air Force Academy  Cadets.   On  19
Jul  01,  the  Academy   Superintendent   accepted   the   applicant’s
resignation and recommended to the Secretary of the  Air  Force  (SAF)
that the  applicant  be  disenrolled  with  a  General  discharge  and
reimburse the government for the cost of his education at the Academy.
 The applicant disputed the debt.  An IO considered  the  validity  of
the debt and found that the applicant’s behavior that formed the basis
for the recoupment constituted misconduct  for  purposes  of  10  USC,
Section 2005.  On 23 Jan 02, the  SecAF  disapproved  the  applicant’s
request to waive the obligation and ordered monetary recoupment due to
the applicant’s misconduct.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ  USAFA/JA  (Academy  JA)  recommends  the  applicant’s  request  to
eliminate or reduce his debt be denied.  The applicant was recommended
for disenrollment for an extended period of misconduct, culminating in
gross  recklessness  and  dangerous  disregard  for  the   law.    The
applicant’s misconduct formed the basis of the recoupment action under
10 USC, Section 2005.  There is no evidence in  the  record  that  the
applicant was a diagnosed alcoholic when he was disenrolled  from  the
Academy.

Academy JA recommends the applicant’s characterization of  service  be
changed from General to Honorable.  They  note  that  the  applicant’s
service characterization is improper pursuant to  AFI  36-2020.   They
note that they discovered the error on 31 Aug 05.

Academy JA notes  that  the  applicant  has  submitted  an  incomplete
psychiatric report dated 28 Apr 05, which is missing  the  final  page
and makes the final conclusion of the attending psychiatrist  unknown.
Likewise, an attached letter from  another  physician  to  applicant’s
counsel does not contain any definitive medical diagnosis.  Academy JA
notes that even if the psychiatrist concluded that the  applicant  was
alcoholic, the conclusion is based on applicant’s condition on 28  Apr
05.  Academy JA notes that on 22 May 01, the applicant  was  evaluated
by a physician at the Academy Life Skills Center  who  concluded  that
the applicant did  not  meet  the  criteria  for  substance  abuse  or
dependence.  Academy JA opines that since this physician  was  clearly
in a much better position to evaluate  the  applicant,  their  medical
diagnosis should be controlling on the issue of abuse and dependency.

Academy JA indicates that 10 USC, Section 2005 states that if a member
voluntarily, or because of misconduct, fails to fulfill an active duty
service requirement, the government may seek monetary reimbursement of
educational  expenses.   They  further  state  that  the   applicant’s
behavior as a cadet, which not only led to his  leaving  the  Academy,
but  also  formed  the  basis  for  recoupment  action,  was   clearly
“misconduct” pursuant to the statute.  As such, the debt is proper.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force  evaluation,  counsel  indicates  the
applicant  agrees  with  the   recommendation   that   his   discharge
characterization be upgraded to honorable.  However, he disagrees with
the recommendation to deny him relief from his debt.   Counsel  states
that the applicant does not agree with the assertion that he wants  to
blame “anyone but himself” for his problem.

Counsel  indicates  that  it  is  “undisputed”  there   were   serious
leadership failures at the Academy during the applicant’s tenure.   He
also asserts it was undisputed that alcohol abuse  was  rampant  among
cadets,  that  senior  cadets  and  Academy  officials  knew  of   the
applicant’s excessive use of alcohol, and that a  great  deal  of  the
applicant’s alcohol abuse took place in Academy  facilities  patrolled
and  monitored  by  Air  Force  officials.   Counsel  opines   it   is
disingenuous of the evaluation writer  to  suggest  that  the  Academy
bears  no  responsibility  in  this  matter.   Counsel  discusses  the
differences between the Academy and other traditional universities.

Counsel opines that the Air Force’s argument that the  medical  report
prepared on the applicant by a civilian psychiatrist  is  insufficient
to determine whether the applicant  suffered  from  alcohol  abuse  or
dependency at the time of his  disenrollment  is  erroneous.   Counsel
states the psychiatrist  did  conclude  the  applicant  suffered  from
alcohol dependence during this time after interviewing him  about  his
history of alcohol use.  Regarding the Air Force’s argument  that  the
medical evaluation performed at the Academy  should  control,  counsel
states the applicant was “still intent” on remaining  at  the  Academy
and was not forthcoming about his alcohol  abuse  for  fear  it  would
“spell the certain death” of his Academy career.  He  also  notes  the
applicant was  in  denial  regarding  his  alcohol  problem  and  only
recently came to terms with the fact he has an alcohol problem.

Counsel also states that the Air Force’s argument that  relief  should
be denied because the  applicant  failed  to  self-report  fails  when
considered in light of the very nature of alcohol abuse and dependency
and the applicant’s  young  age.   Counsel  notes  that  investigators
emphasized in the Air Force Academy Working Group Report of 17 Jun  03
that cadets are often unwilling to report other cadets for violations.
  Particularly  with  respect  to  alcohol  offenses,  cadets  may  be
unwilling to report violations because they do not  believe  there  is
anything wrong with the misconduct involved.   Counsel  discusses  the
implications of this finding.

Finally counsel discusses the Air Force’s  response  to  the  case  of
Favreau v. United States,  which  he  opines  gives  the  Board  ample
grounds to grant the applicant relief.  The Air Force  noted  that  as
long  as  there  is  counseling  and  an   opportunity   to   overcome
deficiencies and so long as persons with medically diagnosed  problems
are not separated due to those problems, the failure to meet standards
is voluntary.  Counsel states the applicant was  never  counseled  for
his alcohol abuse, despite the fact that  senior  cadets  and  Academy
officials were aware of his underage drinking.  According to  counsel,
the Air Force failed to address the applicant’s  regular  and  abusive
use  of  alcohol  and  afford  him  an  opportunity  to  overcome  his
deficiencies.  Counsel indicates the applicant was  separated  because
of conduct that stemmed from his medical condition, alcohol abuse  and
dependency.

Counsel’s complete response is at Exhibit E.

_________________________________________________________________
ADDITIONAL AIR FORCE EVALUATIONS:

Pursuant to  the  Board’s  request,  HQ  USAF/JAA  (JAA)  provided  an
evaluation of the applicant’s request.  They recommend denial  of  his
request.

They note  that  despite  counsel’s  assertion  the  applicant  is  an
alcoholic, he has not provided any evidence  that  the  applicant  is.
They also so note that even if applicant is an alcoholic, the military
does not recognize alcoholism as an excuse for misconduct.

Applicant’s counsel provides several case  citations  to  support  his
argument that the applicant should not be held responsible to pay back
the money spent on his education.  Counsel acknowledges there  are  no
cases decided by the Board or in federal court like  the  applicant’s,
but uses several weight management cases  to  support  his  contention
that when a member  is  separated  for  misconduct  underpinned  by  a
physical or mental disorder,  recoupment  of  government  expenses  is
inappropriate.

Counsel cites the case U.S. v. Gears in support of his argument.   The
Gears case discusses whether lack of positive  attitude  and  lack  of
commitment could be interpreted as misconduct.  The court  noted  that
there was no  overt  misconduct  in  Gear’s  record  and  declined  to
characterize the case as misconduct.  JAA  notes  that  the  applicant
resigned because of conduct and  aptitude  deficiency.   The  Military
Review Committee  cited,  among  the  applicant’s  other  disciplinary
infractions,  “underage  drinking  leading  to  a  possible  DUI”  and
“hitting a pedestrian and leaving the scene.”   JAA  opines  that  the
applicant’s case bears virtually no resemblance to that in GEARs.

Next JAA discusses counsel’s reference to the  case  Favreau  v.  U.S.
They note that Favreau  was  a  class  action  lawsuit  disputing  the
recoupment of bonuses for service members discharged  for  failure  in
the weight management program.  In JAA’s opinion, the Favreau opinion,
taken as a whole, does not support the applicant’s case.  The  Favreau
plaintiffs were not discharged for being obese and the  applicant  was
not discharged for alcoholism.  Instead, the applicant and the Favreau
plaintiffs were discharged for failure to meet military standards.

JAA states there is a strong public policy reason to recoup  education
costs in this and other similar cases.  They opine the  applicant  has
been given substantial monies for his education and that  he  has  and
will benefit from the education for years to come.

The complete evaluation is at Exhibit F.

Pursuant to the Board’s request,  the  BCMR  Medical  Consultant  also
provided an evaluation of the applicant’s case.  He recommends  denial
of the applicant’s request.

Through counsel, the applicant asserts his alcohol abuse  was  due  to
his   existing   prior    to    service    post    traumatic    stress
disorder/depression stemming from  an  abusive  childhood.   The  BCMR
Medical Consultant notes that the Air Force Academy did not cause  the
circumstances of the applicant’s childhood and that  the  evidence  of
record indicates that the depression the applicant experienced in  the
fall of  2000  was  mild,  rapidly  resolved  and  was  classified  as
Adjustment Disorder.  There is  no evidence he  experienced  impairing
symptoms throughout his entire three years at the Academy.

Although the applicant paints a plausible scenario that alcohol  abuse
contributed to his problems, evidence of the record does not show  his
misconduct was due to the effects  of  alcohol  abuse  or  depression.
There is nothing specific  in  his  poor  grades,  oversleeping,  poor
decisions, lying, and  mismanagement  of  time  that  is  specific  to
alcohol abuse.  Rather than the cause, the underage  alcohol  use  was
one manifestation of the overall pattern of maladaptive  coping,  poor
decision making and behavior the applicant brought  with  him  to  the
Academy.  While the medical concept of alcohol addiction  may  explain
the applicant’s use of  alcohol,  it  does  not  relieve  him  of  the
responsibility for the consequences of his misconduct.  The  applicant
had the ability to know right from wrong  and  adhere  to  the  right.
Although the disease concept is applied  to  alcoholism,  individuals,
nevertheless, are held accountable for their behavior.

Although there may have been a climate  of  permissiveness  among  the
cadets, the Academy standards with regard to  underage  drinking  were
clear and the applicant knowingly chose to illegally drink under  age.
The fact he  surrounded  himself  with  peers,  cadets  and  non-cadet
civilians, who also drank and  condoned,  and  even  facilitated,  his
drinking is not equivalent to knowledge of  the  behavior  by  Academy
officials, which they then ignored.   The  applicant  did  not  inform
supervisors or health care professionals about  alcohol  use  when  in
trouble or distress and he specifically denied underage drinking while
at Malstrom AFB, but now says he was drinking  extensively.   He  also
denied alcohol use to mental health providers on direct questioning in
a confidential setting in the fall  of  2000.   The  alcohol/substance
abuse evaluation after the DUI did  not  find  alcohol  dependence  or
abuse based on the applicant’s self reported history.   The  applicant
now says he lied at the time.

The evidence of record does not  support  the  applicant’s  contention
that alcohol abuse  and  mental  illness  caused  all  the  misconduct
leading to the Military Review Committee  and  imminent  disenrollment
prompting him to resign.

The complete evaluation is at Exhibit G.

_________________________________________________________________
APPLICANT’S RESPONSE TO ADDITIONAL AIR FORCE EVALUATIONS:

In his response to the Air Force evaluations, counsel  disagrees  with
the assertion by AFPC/JA the applicant has not submitted  evidence  he
is an alcoholic or suffers from alcoholism.  Counsel attaches  a  copy
of the psychiatric intake report prepared on the applicant,  dated  28
Apr 05, and discusses how  the  doctor’s  findings  support  that  the
applicant suffered from alcoholism.

Counsel notes that AFPC/JA states  that  even  if  the  applicant  did
suffer from alcoholism, the military does not recognize alcoholism  as
an excuse for misconduct, so the applicant would not  be  entitled  to
relief on that basis.   Counsel  states  that  AFI  36-2910  cited  by
AFPC/JA only applies to cases in which an airman has died or sustained
an  illness,  injury,  or  disease,  and  where  possible,  death   or
disability  benefits  are  at  issue.   The   line   of   duty   (LOD)
determination is made to ascertain, among other things, whether or not
the death, injury, or  illness  was  a  result  of  the  airman’s  own
misconduct.  The applicant submits that the provisions of AFI  36-2910
have no application in his case.  He does not deny that alcoholism  is
not a disease, injury,  or  illness  requiring  disability  evaluation
processing.  However, he does argue that his severe alcohol abuse,  if
not  dependency,  while  at  the  Academy  does  render  his   conduct
“involuntary” for the purpose of recoupment.

Counsel states, as noted in the  application  to  the  Board  and  his
response to the advisory opinion, the applicant was separated from the
Academy only because of his DUI arrest and hit and run incident.   The
applicant maintains there is ample evidence in the record  to  support
his contention his alcohol consumption at that  time  was  beyond  his
ability to control.  Counsel notes the applicant’s  statement  to  the
MRC he needed help and notes the comments of  the  MRC  regarding  the
applicant’s situation.  Counsel concludes the MRC was  well  aware  of
the applicant’s drinking and, therefore, the Academy  was  effectively
put on notice of the applicant’s  alcohol  problem  and  of  the  fact
alcohol abuse was rampant within his wing.

Counsel  indicates  that  the  applicant  disagrees   with   AFPC/JA’s
arguments that United States v. Gears and Favreau v. United States  do
not  require  the  Board  to  find  the  applicant’s  misconduct   was
involuntary and, consequently, that recoupment is  improper.   AFPC/JA
argues the  applicant  was  not  separated  for  alcoholism,  but  for
misconduct and aptitude deficiency, namely underage drinking, DUI, and
leaving the scene of an accident.  However, AFPC/JA  is  incorrect  in
their argument “there were no medical conditions preventing compliance
with  the  [Academy]  standards….”   Alcohol  abuse   and   dependency
undeniably are recognized medical conditions, from which the applicant
suffered  at  the  time  of  the  conduct  leading  to  his   proposed
disenrollment and resignation.

Counsel states that the BCMR  Medical  Consultant’s  evaluation  gives
considerable attention to whether or not the  applicant  suffers  from
PTSD as a result  of  the  prolonged  physical  and  mental  abuse  he
suffered at the hands of his father.  Counsel opines this question  is
of “only very limited value.”  Whether or not the  applicant  suffered
from PTSD and depression is relevant only to the reasons  why  he  may
have begun drinking in the first place.

The BCMR Medical Consultant notes “the applicant  paints  a  plausible
scenario that alcohol abuse contributed to his problems….”  However he
attempts to dismiss the applicant’s contentions by noting  that  there
is  nothing  specific  to  alcohol  regarding  many  of  the  problems
experienced by the applicant.  The BCMR Medical Consultant then opined
“[r]ather  than  the  cause,  the  underage  alcohol   use   was   one
manifestation of the  overall  pattern  of  maladaptive  coping,  poor
decision making and behavior the applicant brought  with  him  to  the
Academy.  Counsel opines the BCMR Medical Consultant’s desire  to  see
the applicant held accountable  for  his  actions  is  understandable.
However, according to  counsel,  the  BCMR  Medical  Consultant’s  own
arguments  support  the  applicant’s  request  for  relief.    Counsel
discusses how the DSM-IV notes that the  behaviors  dismissed  by  the
BCMR Medical Consultant are in fact diagnostic criterion for substance
abuse/dependence.  Counsel notes that the DSM-IV’s first criterion for
a diagnosis of substance abuse is  “recurrent  abuse  resulting  in  a
failure to fulfill major role obligations at work,  school,  or  home.
The second criterion is “recurrent substance abuse  in  situations  in
which it is physically  hazardous  (e.g.,  driving  an  automobile  or
operating a machine when impaired).  The third criterion is “recurrent
substance-related legal problems (e.g. arrests  for  substance-related
disorderly conduct).   The  record  clearly  indicates  the  applicant
exhibited these behaviors.

Counsel disagrees with the BCMR Medical  Consultant’s  conclusion  the
applicant hid his alcoholism from Academy officials and discusses  how
the applicant informed  the  MRC  he  needed  help  for  the  problem.
Counsel states that ‘admittedly, the  applicant  withheld  information
from   the   Academy   doctor   who   assessed   him   for   substance
abuse/dependency.  As noted in his  response  to  the  first  advisory
opinion, he did so because he was intent on remaining at the Academy.

While conceding the applicant’s misconduct, counsel  opines  that  the
Board must look at the underlying medical condition that gave rise  to
the applicant’s unlawful conduct.  This, according to counsel, is  the
dispositive question in the case.  The evidence strongly  demonstrates
the applicant was an alcoholic at the time of  his  unlawful  conduct.
Counsel opines that under  the  Favreau  case  and  the  principle  of
fundamental fairness, the Air Force should not be  allowed  to  recoup
its expenses.  This is supported by the fact the Academy  acted  in  a
grossly  negligent  manner  in  addressing  cadet  alcohol  abuse  and
misconduct.  The applicant reiterates his position that, after several
extensive official investigations of the Academy, the disciplining  of
senior leaders,  and  significant  negative  media  coverage,  Academy
officials bear “very significant” responsibility for  the  development
of his alcoholism and his early discharge from the Academy.

Counsel’s complete  response,  with  attachments,  in  behalf  of  the
applicant is at Exhibit I.

_________________________________________________________________

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 primary basis for our conclusion that the applicant has  not  been
the victim of an error or injustice.   We  reject  counsel’s  argument
that the Air Force Academy bears responsibility  for  the  applicant’s
problems with alcohol and the resulting misconduct to an  extent  that
the cost of his Academy education should be forgiven in  whole  or  in
part.  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-2005-
00091 in Executive Session on 29 November  2005  and  20  March  2006,
under the provisions of AFI 36-2603:

      Mr. Michael J. Novel, Panel Chair
      Mr. Grover L. Dunn, Member
      Ms. Jan Mulligan, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 13 Dec 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, HQ USAFA/JA, dated 21 Sep 05.
    Exhibit D.  Letter, SAF/MRBR, dated 7 Oct 05.
    Exhibit E.  Letter, Counsel, dated 7 Nov 07, w/atch.
    Exhibit F.  Memorandum, HQ USAF/JAA, dated 19 Dec 05.
    Exhibit G.  Memorandum, BCMR Medical Consultant,
                dated 12 Jan 06.
    Exhibit H.  Memorandum, AFBCMR, dated 18 Jan 06.
    Exhibit I.  Letter, Counsel, dated 16 Feb 06.




                                   MICHAEL J. NOVEL
                                   Panel Chair