RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-03587
            INDEX NUMBER:  104.00
      XXXXXXXX   COUNSEL:  Chester H. Morgan, II

      XXXXXXX    HEARING DESIRED:  Yes


MANDATORY CASE COMPLETION DATE:  22 May 07


_________________________________________________________________

APPLICANT REQUESTS THAT:

The decision by the  Secretary  of  the  Air  Force  disapproving  his
release from the active duty service  commitment  (ADSC)  he  incurred
while attending the Air Force Academy be voided to enable him to apply
for enrollment in the Air Force Reserve Officer training Corp (AFROTC)
program.

He be allowed to apply for commissioning through  the  AFROTC  program
or, in the alternative, be allowed to reimburse the cost  of  his  Air
Force Academy education.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The DD Form 785, “Record of Disenrollment From Officer  Candidate-Type
Training,”  prepared  on  him  contains   erroneous   and   misleading
information concerning his cadet record  which  materially  prejudiced
the Secretary of the Air Force’s consideration of his case.

The Superintendent’s disenrollment recommendation  erroneously  refers
to a recommendation from the Commandant of Cadets, which is not in the
file and which, apparently, was never  made.   Both  his  Air  Officer
Commanding (AOC) and Group AOC both recommended commissioning  through
other services.

The narrative summary of the reasons for disenrollment overstates  the
conduct which “informed” his disenrollment.   The  summary  gives  the
impression he lied on two separate  occasions,  but  he  related  both
incidents during the same session with the same AOC.

He was not on academic probation at the time of his  disenrollment  as
indicated in Section IV, “Remarks,” of the DD Form 785.

The reference to conduct probation in Section IV, “Remarks,” of the DD
Form 785 is misleading.  While it is true he was on conduct probation,
the statement that he was  on  both  academic  and  conduct  probation
appears to be intended to add to the gravity of the  reasons  for  his
disenrollment.

The notification  of  disenrollment,  dated  16  May  05,  erroneously
references the recommendation of the Commandant of Cadets.   There  is
nothing  in  the  record  to  indicate  any  recommendation  from  the
Commandant himself.  He notes there are two endorsements from his  AOC
and Group AOC giving him a positive recommendation.   Since  the  Wing
Staff Judge Advocate signed both the  DD  Form  785  and  the  16  May
notification  of  the  Superintendent’s  decision,  and  it   is   his
endorsement that incorrectly states he was on academic  probation,  it
is not unreasonable to assume, as is commonly the practice,  that  the
Superintendent  relied  on  the   USAFA/JA   to   both   process   the
disenrollment, including correctly summarizing his record, and to make
a recommendation to him  based  on  that  record.   He  believes  that
USAFA/JA’s mistake thus affects not only  the  administration  of  the
disenrollment, but the decision itself.

In support of his appeal, the applicant submits a copy of the DD  Form
785, paperwork  related  to  his  disenrollment  and  request  for  an
educational delay, a copy of his transcript, and a copy of the  letter
from SAFPC disapproving his request to reimburse the government.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered the Air Force Academy as a cadet on  28  Jun  01
and was scheduled for commission on 26 May 05.  On 11 Jan 05, a  Cadet
Sanctions Recommendation Panel (CSRP) convened  to  make  a  sanctions
recommendation on allegations  the  applicant  admitted  to  lying  by
creating a false impression he was authorized to be outside the  cadet
area  while  on  probation  and  lying  by  telling  his  Air  Officer
Commanding (AOC) he had  not  been  Over  the  Fence  (OTF)  while  on
probation.  The three members of the CSRP recommended  probation.   On
15 Apr 05, the Commandant of Cadets reviewed their recommendation  and
recommended on the DD Form 785, “Record of Disenrollment From  Officer
Candidate-Type Training,” the applicant be disenrolled with  a  rating
of “3,” should not be considered for other  officer  training  without
weighing  the  needs  of  the  service   against   the   reasons   for
disenrollment.

At the time of his disenrollment  recommendation,  the  applicant  had
received  a  letter   of   reprimand   (LOR)   for   using   indecent,
disrespectful,  inappropriate,  and  unprofessional  language  in  the
presence of female cadets, and two letters of  admonition  (LOA)  for:
(1) Violating AFCWM 36-3501 by possessing  and  purchasing,  while  on
conduct probation, contraband, and (2) Being off  base  and  violating
probation.

The USAFA Superintendent directed the  applicant  be  disenrolled  for
violating the Cadet Wing Honor Code and  ordered  to  enlisted  active
duty for a period of three years.  The applicant elected to appeal the
recommendation of enlisted active duty and asked  for  an  educational
delay to pursue an AFROTC commission.  The  Superintendent  noted  the
violations committed by the applicant, that he  was  on  academic  and
conduct probation when he  committed  the  additional  violations  and
advised the Secretary of the Air Force Personnel Counsel  he  did  not
support giving the applicant an AFROTC commissioning opportunity.

The Secretary of the Air Force through the Secretary of the Air  Force
Personnel Counsel (SAFPC) reviewed the applicant’s request and  on  11
Jul 05 directed he be separated from cadet status, transferred to  the
Air Force Reserves, and ordered to enlisted active duty for  a  period
of three years.

In a letter, dated 16 Aug 05, the applicant requested he be allowed to
reimburse the Air Force for his Air Force Academy education in lieu of
serving on active duty.  The SAFPC responded to the  applicant  on  26
Aug 05 and advised him that the Secretary’s  decision  was  final  and
that the applicant could appeal to the AFBCMR for potential relief.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ USAFA/JA recommends denial of the  applicant’s  request.   However,
they do recommend the applicant’s record be corrected to show that the
time of his disenrollment he was on  conduct  probation  not  academic
probation.

The applicant  maintains  his  DD  Form  785  contains  erroneous  and
misleading information concerning his  cadet  record  that  materially
prejudiced the Secretary’s consideration of his  case.   Additionally,
the applicant claims the Superintendent’s disenrollment recommendation
erroneously refers to a recommendation from the Commandant  of  Cadets
that was not in the file nor ever made and that such a  recommendation
would have been contrary to the recommendations  of  his  Air  Officer
Commanding (AOC) and Group AOC.  HQ USAFA/JA states the  applicant  is
incorrect that the recommendation was never made.  They reference  two
documents that validate the Commandant’s recommendation.

The applicant argues that the narrative reason for  his  disenrollment
overstates the conduct that led to his disenrollment.   The  applicant
states he only lied on one occasion rather than two separate occasions
as indicated.  HQ USAFA/JA states this is untrue, that  the  applicant
did lie on two separate occasions—once on 6 Feb 05 and once on  8  Feb
05.

HQ USAFA notes the applicant states that  but  for  his  admission  of
honor code violations, there would not  have  been  an  honors  board.
They indicate this is not true.  They note that if a  cadet  does  not
admit to an alleged honor code violation, the case is forwarded  to  a
Wing Honor Board.  Since the applicant admitted to violations  it  was
forwarded to a Cadet Sanctions Recommendation Panel.

The applicant states he was not on academic probation at the  time  of
his disenrollment as was claimed in section IV of  the  DD  Form  785.
The applicant is correct in this assertion.   During  his  time  as  a
cadet, he was on several  probations.   They  list  four  periods  the
applicant was  on  probation.   The  applicant  was  not  on  academic
probation at  the  time  of  his  disenrollment  but  was  on  conduct
probation.

HQ USAFA/JA states it is not true that the endorsement by the  Academy
Staff Judge Advocate stating the applicant was on  both  academic  and
conduct probation was intended to add to the gravity  of  the  reasons
considered by the Superintendent in  deciding  if  the  applicant  was
worth a second chance.  They note that nowhere on the DD Form 785 does
it incorrectly mention the applicant being on academic probation.   It
is mentioned in paragraph two of the staff summary sheet, but this  is
administerial in nature and is simply reciting the language that would
appear on the DD Form 785 in the event of a disenrollment decision  by
the  Superintendent.   HQ  USAFA/JA  opines  the  applicant  was   not
prejudiced by the error and that the applicant was disenrolled for his
Wing Honor Code violations

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel states in his response that USAFA/JA concedes that
the applicant’s status was misstated in that he was  not  on  academic
probation at the time of his disenrollment,  but  states  it  is  “not
true” the misstatement added to  the  gravity  of  the  disenrollment.
Counsel states that the reasoning seems to  be  that  the  applicant’s
disenrollment was justified by the honor violation(s) alone.   Counsel
opines “this statement  is  at  once  argumentative,  conclusory,  and
mistaken.”

Counsel discusses the purpose of the history presented on the DD  Form
785 and how it factors into the decision making process of  those  who
review the DD  Form  785.   Counsel  further  argues  that  USAFA/JA’s
discussion is aimed at the wrong issue.  He notes the applicant is not
contesting his disenrollment, but the severity of the sliding scale of
consequences that “attend involuntary disenrollment from the Academy.”
Counsel opines that the USAFA/JA evaluation transgresses from advisory
to advocacy by first speculating whether admittedly false  information
was prejudicial and then making the call itself.  Counsel states  this
is the Board’s decision, particularly when the question  of  prejudice
goes straight to the question of whether  the  applicant  was  a  good
candidate for AFROTC.

Counsel states that the USAFA/JA evaluation “continues” the  confusion
over the nature of the underlying honor offense and insists there were
two lies, one on 6 Feb 05 and a  second  on      8  Feb  05.   Counsel
states that the applicant did not speak to his AOC on  6  Feb  05  and
questions  how  one  can  lie  without  “uttering  a  word.”   Counsel
indicates that the actual lie did take place on  8 Feb 05 when the AOC
asked the applicant an “improper question” under the Cadet Honor  Code
(using the Honor Code to enforce regulations), by asking the applicant
how many times he had left the cadet area without permission.  Counsel
asserts that  the  correct  answer  to  an  improper  question  is  to
respectfully inform the superior that it is an improper  question  and
to politely refuse to answer  it.   Counsel  states  that  the  policy
rationale for this is that the Honor Code cannot  and  should  not  be
hijacked to repeal Article 31 of the UCMJ.

Counsel states that the 11 Feb 05 “skillet” incident was  not  a  lie.
He opines that if the applicant had actually lied, he would have  been
disciplined for having the skillet, but would  have  been  allowed  to
graduate and would be a commissioned officer today.  By resisting  the
temptation to lie and admitting that he had been out  of  limits  more
than once, the applicant knew that he had  guaranteed  he  would  face
honor processing.  However, if he had lied to  his  AOC,  there  would
have been no honor proceeding.

Counsel points out there are documents referenced in the advisory that
he does not have access to.

Counsel concludes that the presence of false  adverse  information  in
the record leading up to the Superintendent’s and the SecAF’s decision
is  alone  sufficient  for  the  Board  to  favorably   consider   the
applicant’s request.  Counsel opines it is  impossible  to  know  what
piece of information might have served as a  “pivot  point”  in  those
decisions and it is unfair and contrary  to  the  Board’s  charter  to
speculate on what may or may not  have  moved  the  Superintendent  or
SECAF.  Counsel further asserts that it is indisputable that, but  for
the applicant’s truthful admission to an improper  question  from  his
AOC, he would have not have gone to an honor board.

Counsel notes that the applicant’s request to pay back his active duty
service commitment has been mooted by the fact he has been called  and
already reported to active duty in an enlisted status.   Nevertheless,
the applicant’s requests remain.

Counsel’s complete response is at Exhibit E.

________________________________________________________________

ADDITIONAL INFORMATION:

The memorandum prepared by the Secretary of the  Air  Force  Personnel
Council (SAFPC), dated 11 Jul 05, which puts forth their rationale for
denying the applicant’s request for an educational delay to attempt to
obtain  an  AFROTC  commission  was  reviewed.   SAFPC  concluded  the
applicant does not possess the necessary maturity level to serve as  a
commissioned officer and has significant integrity issues.

The complete memorandum is at Exhibit F.

Copies of the  information  counsel  indicated  he  was  missing  were
forwarded to him on 15 Feb 06.

The memorandum, with attachments, is at Exhibit H.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE INFORMATION:

A copy of the memorandum prepared by  SAFPC,  dated  11  Jul  05,  was
forwarded to counsel on 25 Jan 06 for review  and  comment  within  30
days.  To date, a response has not been received.   Counsel  also  did
not provide a response based on the additional  information  forwarded
on 15 Feb 06.

_________________________________________________________________

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  warranting  granting  the  relief
requested.   Additionally,  we  are  not  persuaded  the  error   made
regarding the reference to his being on academic probation “materially
prejudiced” the determination made in his  case.   We  note  that  the
memorandum prepared by  the  Secretary  of  the  Air  Force  Personnel
Council  giving  the  rationale  for  their  recommendation  to   deny
essentially the same requests now considered by this Board only refers
to the applicant being on  “conduct”  probation.   In  our  view,  the
overriding compelling reason to deny the applicant’s request  was  and
is his lack of the  considered  qualities  to  become  an  officer  as
exemplified by his  conduct  at  the  Academy.   Further,  we  believe
enlisted service provides  him  the  opportunity  to  demonstrate  the
qualities  essential  to,  possibly,  one  day  become   an   officer.
Therefore, in the absence of evidence to  the  contrary,  we  find  no
compelling basis to recommend  granting  the  relief  sought  in  this
application.

4.  Notwithstanding  our   recommendation   above,   we   accept   the
recommendation of the USAFA/JA to correct the  applicant’s  record  to
reflect that at the time of his disenrollment he was not  on  academic
probation.  Therefore,  we  recommend  his  records  be  corrected  as
indicated below.

5.  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 RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that any and all  records,
to include the DD Form 785,  “Record  of  Disenrollment  from  Officer
Candidate-Type Training,” submitted on 12 May 05, not reflect that  at
the time of his disenrollment from the US Air Force Academy he was  on
academic probation.

_________________________________________________________________

The following members of the Board considered Docket  Number  BC-2005-
03587 in Executive Session on 4 April 2006, under  the  provisions  of
AFI 36-2603:

      Mr. Thomas S. Markiewicz, Chair
      Ms. Mary C. Puckett, Member
      Ms. Janet I. Hassan, Member

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

    Exhibit A.  DD Form 149, dated 27 Oct 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, HQ USAFA/JA, dated 19 Dec 05.
    Exhibit D.  Letter, SAF/MRBR, dated 13 Jan 06.
    Exhibit E.  Letter, Counsel, dated 12 Feb 06.
    Exhibit F.  Memorandum, SAF/MRBP, dated 11 Jul 05.
    Exhibit G.  Letter, AFBCMR, dated 25 Jan 06.
    Exhibit H.  Letter, AFBCMR, dated 15 Feb 06, w/atchs.



                                   THOMAS S. MARKIEWICZ
                                   Chair


AFBCMR BC-2005-03587


MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the  Air
Force Board for  Correction  of  Military  Records  and  under  the
authority of Section 1552, Title 10, United States Code  (70A  Stat
116), it is directed that:

      The pertinent military records of the Department of  the  Air
Force relating to XXXXXXX, XXXXXXX, be corrected to show  that  any
and  all  records,  to  include  the  DD  Form  785,   “Record   of
Disenrollment from Officer Candidate-Type Training,”  submitted  on
12 May 05, not reflect that at the time of his  disenrollment  from
the US Air Force Academy he was on academic probation.






            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency