RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-02250
            INDEX NUMBER:  104.00
      XXXXXXX    COUNSEL:  Dartt J. Demaree

            HEARING DESIRED:  Yes


MANDATORY CASE COMPLETION DATE:  24 Feb 08


_________________________________________________________________

APPLICANT REQUESTS THAT:

The finding that he violated the  United  States  Air  Force  Academy
(USAFA) (Academy) Cadet Honor Code be voided.

He be granted a diploma from the USAFA with  a  Bachelor  of  Science
degree in biology.

He be granted a commission in the US Air Force in the grade of  first
lieutenant with credit for his time served as an enlisted  member  of
the Air Force.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Applicant represented by counsel submits a 13-page brief  of  counsel
with 16 attachments.   Counsel  argues  there  are  three  bases  for
granting the relief requested by the applicant:

        a.  Lack of Due  Process  at  the  Wing  Honor  Board  (WHB).
Counsel states the applicant did  not  receive  due  process  due  to
violations of cadet honor  code  reference  handbook  procedures  and
other irregularities.  Counsel also  argues  that  bias  against  the
applicant existed  prior  to  the  convening  of  the  WHB.   Counsel
discusses incidents that took place he opines suggest  the  applicant
did not receive a fair hearing.  In particular, counsel  states  that
resentment built up against the applicant because he  had  previously
met more than one honor board without being found in violation.

Counsel also discusses the inappropriate conduct of the  Board  Legal
Advisor (BLA) during the WHB.  He states the BLA stepped outside  his
proper role by aggressively questioning the applicant before the  WHB
convened.  Counsel points out the role of the BLA as  stated  in  the
Honor Code Reference Handbook.

Counsel also asserts the applicant  was  denied  the  opportunity  to
effectively challenge the Honor Board members.  Because the applicant
was only allowed to verbally challenge members in front of the entire
panel, counsel states the applicant was hesitant to  make  challenges
for cause for fear of how it would influence the  remaining  members.
The applicant also believed that one or two of  the  members  on  the
contested WHB had sat on one of his previous honor boards.   However,
he chose not to challenge them because it would require  telling  the
panel he had been to a previous board and risk “their making  adverse
inferences  about  him.”   Counsel  provides   information   on   the
procedures followed by other institutions  of  higher  learning  when
conducting an honor board and contrasts them with procedures used  by
the USAFA (Academy) to show that the procedures used by  the  Academy
impede a cadet receiving an impartial honor board.

Counsel asserts that the investigation process was  not  followed  in
the applicant’s case.  He states that according to  the  Honor  Board
Handbook,  two  members  are  to  be  assigned  to  carry   out   the
investigation, but only one was assigned in this case

Finally, counsel states that the applicant’s appeal  memo,  dated  17
Jun 04, was improperly circulated to various  Academy  personnel  for
comment before getting their explanations  of  various  incidents  to
insure impartiality.

        b.  Board Members Should Have  Received  a  Mistake  of  Fact
Instruction.  Counsel argues that the evidence in  this  case  raises
this type of  defense  because  the  applicant  provided  uncontested
testimony that he mistakenly submitted the wrong paper in his rush to
get it  to  the  instructor.   The  applicant  was  found  guilty  of
violating the honor code by cheating.  Cheating  is  defined  in  the
Honor Handbook, paragraph 1.2.3 as committing an act with the  intent
to receive undeserved credit.  Counsel opines that the  problem  with
the handbook in this section is it oversimplifies the  complexity  of
intent in some cases.  The implication is that if a cadet  submits  a
paper that is not properly documented, because he had the  intent  to
submit the paper, he had the intent to submit an  undocumented  work.
According to the Honor Handwork, submission of an  undocumented  work
clearly implies it is your own work and ideas.   Counsel  states  the
applicant lacked any intent to submit the undocumented draft and  had
intended to submit the final paper he had written.   Counsel  further
opines that the phrase “clearly implies” push honor board members  to
assume improper intent simply because an undocumented paper is turned
in to the instructor.  Counsel states that  on  the  other  hand  the
Honor Handbook more accurately states that cheating is  an  act  with
the intent to receive  undeserved  credit  or  an  unfair  advantage.
Counsel believes that honor boards should rely on evidence and not on
vague or inequitable instructions on intent.   By  not  giving  board
members a  mistake  of  fact  instruction,  the  board  members  were
prevented from properly evaluating the applicant’s intent in light of
the evidence presented.

         c.  The  Evidence  Presented  Is  Not  Sufficient  to  Prove
Violations of the Honor Code by  Proof  Beyond  a  Reasonable  Doubt.
Counsel states  that  a  review  of  the  testimony  and  documentary
evidence in the applicant’s case demonstrates  an  absence  of  proof
beyond a reasonable doubt.  Counsel states that in fact the violation
the applicant is accused of is not supported by the  lesser  standard
of proof by a preponderance of the evidence.  One of the problems  at
the applicant’s honor board was a  complete  lack  of  statements  or
direct evidence of any intent by the  applicant  to  cheat.   Counsel
states that the applicant’s explanation of  what  happened  has  been
consistent from the beginning.  Given the lack  of  evidence  on  the
issue of intent and the requirement  that  wrongful  intent  must  be
established  beyond  a  reasonable  doubt  to  have  an  honor   code
violation, counsel opines it is incomprehensible  the  applicant  was
found to have the requisite intent for a violation.

In support of his appeal applicant provides  16  attachments  to  his
application, which include a  personal  statement,  the  Honor  Board
transcript, letters  of  recommendation,  character  references,  and
other documentation.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is presently serving on active duty  in  the  grade  of
senior airman (SrA).  The applicant entered the Air Force Academy  on
29 Jun 00.  During the Spring Semester 2004, the  applicant,  then  a
first-class cadet, was suspected of violating the  Cadet  Wing  Honor
Code by cheating.   Specifically,  the  applicant  was  suspected  of
directly copying text from published articles without documenting the
original sources, thereby attempting to receive undeserved credit for
a biology paper.  A Wing Honor Board (WHB) was held on 24 May 04  and
found the applicant in violation  of  the  Wing  Honor  Code  on  the
allegation.  On 17 Jun 04, the applicant appealed the decision of the
WHB.  On 21 Jul 04, a  legal  review  of  the  WHB,  to  include  the
applicant’s appeal, found that the WHB  was  conducted  properly  and
that sufficient evidence was presented  to  support  the  presumptive
sanction of disenrollment.  On 27  Jul  04,  the  Academy  Commandant
recommended disenrollment.  On  3  Jun  04,  USAFA  Form  O-299,  AOC
Evaluation of Cadet, was initiated and recommended the  applicant  be
disenrolled from the Academy.  The Training Wing Vice  Commander  and
Commander recommended the applicant  not  be  considered  for  future
officer training without weighing service needs  against  the  reason
for separation.  On 11 Aug 04, the applicant submitted a response  to
the USAFA Form O-299.  A subsequent legal review again found the  WHB
was conducted properly  and  sufficient  evidence  was  presented  to
support the presumptive sanction of disenrollment.  On 1 Sep 04,  the
applicant was notified the  Academy  Superintendent  directed  he  be
disenrolled from the Academy and ordered to active duty for a  period
of three years.  The applicant acknowledged receipt and indicated his
disagreement with the Superintendent’s  decision.   In  Sep  04,  the
applicant submitted a request for a waiver of the Active Duty Service
Commitment (ADSC) to allow him to pursue an AFROTC  commission.   The
Secretary of the Air Force Personnel Council (SAFPC)  considered  and
denied the applicant’s request on  20  Oct  04  and  recommended  the
applicant be ordered to active duty.  SAFPC stated that the applicant
clearly  attempted  to  cheat  and  was  not  honest  about  it  when
confronted.  They further noted that four years at the  Academy  plus
time at the Academy preparatory school should have been sufficient to
establish a sense of honor in the applicant.  They indicated that the
applicant has the intelligence and training that  may  allow  him  to
redeem himself through service to the Air Force and his country as  a
member of the enlisted force.  The applicant entered active  duty  in
the Air Force on 3 Dec 04.  He has received two Enlisted  Performance
Reports (EPRs), the latest closing out  on    9  Jun  06,  both  with
overall ratings of “4.”

_________________________________________________________________

AIR FORCE EVALUATION:

HQ USAFA/JA recommends denial of the applicant’s requests.  JA  notes
that all of the matters  raised  by  the  applicant  were  previously
considered during the Honor process and legal reviews were conducted,
which reviewed the issues raised by the applicant.  The applicant has
provided no newly discovered evidence.  USAFA/JA also  discusses  why
the evidence presented in the  applicant’s  case  amounted  to  proof
beyond a reasonable doubt and why the findings  of  the  Honor  board
should not be overturned.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel responded to the Air Force evaluation in a seven  page  brief
addressing the following points:

        a.  The USAFA/JA advisory makes  erroneous  statements  about
matters raised by applicant and is  a  superficial  analysis  of  the
case.  Counsel states that the first sentence of paragraph  4a,  “All
of the matters raised by the  applicant  were  previously  considered
during the Honor process,” is “blatantly false.”  Counsel states that
the JA advisory would mislead the Board into believing  that  all  of
the matters raised in this  application  were  raised  and  addressed
previously at the Academy.  Counsel states that “only” in the  AFBCMR
application has the applicant specifically  claimed  that  his  honor
board  should  have  included  a  “mistake  of   fact”   instruction.
Secondly, the applicant never raised the “proof beyond  a  reasonable
doubt” issue until his AFBCMR application.  Counsel states  that  the
advisory never addressed the “mistake  of  fact”  issue  and  on  the
“proof beyond a reasonable doubt” failed to address the key issue  of
intent.  In addition,  the  advisory  mistakenly  applied  rules  and
standards from military criminal proceedings.

Counsel indicates that a  further  defect  in  the  advisory  is  the
reference to  “legal  reviews”  without  indicating  when  they  were
conducted and what the  reviews  actually  concluded.   Counsel  also
indicates that a further misstatement of fact is the  assertion  that
the honor board legal advisor “urged” the  applicant  to  redact  any
mention of previous honor boards.  Counsel states that the  statement
that no new evidence was submitted by the applicant and that  he  was
the only person supporting his allegations imply  the  applicant  had
some duty to provide more evidence than existed at the  time  of  his
honor board.  Counsel opines there is no need for new  evidence  when
the old evidence was not properly evaluated  and  was  inadequate  to
support a finding the applicant violated  the  honor  code.   Counsel
states the  applicant  made  every  effort  during  the  honor  board
proceedings to show his case was not handled according to the  normal
honor investigation procedures.

        b.  Errors and Flawed Conclusions in the July  2004  USAFA/JA
legal review completely undermine  the  accuracy  and  value  of  the
USAFA/JA advisory.  Counsel states that the  USAFA/JA  legal  review,
dated 21 Jul 04, is rife with errors  or  incorrect  analysis,  which
undermines the JA advisory since it relies on this  review.   Counsel
indicates that the assertion the applicant denied at his honor  board
copying text from published articles without documenting the original
sources is in error.  If the JA advisory writer had  read  the  honor
board transcript, they would have known that the  foregoing  was  not
the full allegation and that the  applicant  never  denied  that  the
working  copy  submitted  did  have  text  that  was   not   properly
documented.   Counsel  notes  that  the  legal  review   states   the
applicant’s paper was virtually verbatim to what the  instructor  was
able to find on line.  Counsel states this is  false  and  prejudices
the reader into thinking the applicant copied the entire paper from a
website and tried to pass it off as his  own  work.   In  fact,  only
certain sections of the paper are at issue and they only make up part
of the overall  paper.   Counsel  further  states  the  legal  review
contains the bold assertion the applicant’s explanations of  why  his
paper  was  not  documented  are  “totally  unbelievable.”   However,
counsel  states  there  is  no  evidence  provided  to  support   the
assertion.  Counsel  provides  several  more  instances  of  what  he
considers flawed reasoning and prejudicial commentary in the JA legal
review.  Counsel  concludes  that  a  final  problem  with  both  the
advisory and the legal review is a lack of any adequate discussion of
what happened with the paper submitted  by  the  applicant.   Counsel
states that paragraph two of the legal review  gives  the  impression
that  the  applicant  submitted  a  “working  paper”  containing   no
documentation at all, which he states is untrue.  Counsel states  the
paper had documentation in a number of places, but lacked it in  some
because it was an incomplete, working document.  The reviews fail  to
make clear the paper was not supposed to be original  work,  but  was
supposed to be entirely a compilation of other  people’s  work  on  a
particular topic.  The failure to explain  the  true  nature  of  the
paper is another example of the superficial, misleading  comments  in
both the advisory and main legal review.

        c.  Statements Attached to the  USAFA/JA  Advisory  Are  From
Parties With A Predictable Bias Against Applicant.  Counsel indicates
that the statements from the officers and the civilian  serving  with
the Center for Character Development, which is closely  connected  to
the honor  board  proceedings  and  cadets  understandably  would  be
unsympathetic to the claims made by the applicant.  Their credibility
is at stake and they have a bias to protect  the  reputation  of  the
honor board system.  Counsel states the applicant notes that none  of
the statements attached to the advisory is from  independent  sources
or independent observers, but from individuals  with  some  level  of
interest in defending the current honor board system.

Counsel’s complete response is at Exhibit E.

_________________________________________________________________

ADDITIONAL INFORMATION:

A copy of the memorandum prepared by the Secretary of the  Air  Force
Personnel Council (SAFPC) in their consideration of  the  applicant’s
request for a waiver of his three-year active duty service commitment
in order to pursue an AFROTC commission was obtained for the  Board’s
review.  SAFPC recommended denial of the applicant’s request  at  the
time and that he be ordered to active duty.

The complete memorandum is at Exhibit F.

_________________________________________________________________

APPLICANT’S RESPONSE TO ADDITIONAL INFORMATION:

Counsel provided a response to the SAFPC memorandum  in  three  pages
addressing the following points:

        a.  Applicant’s Previous Submissions to the AFBCMR Respond to
Most of the Matters Raised in the  Memo.   Counsel  states  that  the
SAFPC memorandum is mostly a short summary  of  basic  facts  in  the
case.   Unfortunately,  the  last   paragraph   reaches   unwarranted
conclusions about the applicant’s conduct.

        b.  Certain Statements in the  SAFPC  Memorandum  are  Either
Incorrect or Require Clarification.  Counsel  provides  clarification
of some issues covered in the SAFPC memorandum and challenges  others
as untrue.

Counsel’s complete response 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 opinion  and  recommendation  of  the  Air
Force office 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 that  there  is  not  a  sufficient
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-2006-
02250 in Executive Session on 14 November 2006, under the  provisions
of AFI 36-2603:

      Mr. Laurence M. Groner, Panel Chair
      Ms. Kathleen Graham, Member
      Ms. Mary C. Puckett, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 27 Apr 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, HQ USAFA/JA, dated 8 Aug 06.
    Exhibit D.  Letter, SAF/MRBR, dated 25 Aug 06.
    Exhibit E.  Letter, Counsel, dated 16 Sep 06, w/atch.
    Exhibit F.  Memorandum, SAF/MRBP, dated 21 Oct 04.
    Exhibit G.  Letter, AFBCMR, dated 8 Sep 06.
    Exhibit H.  Letter, Counsel, dated 2 Oct 06, w/atch.




                                   LAURENCE M. GRONER
                                   Panel Chair