RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-05482

		COUNSEL:  

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

1.  His records be corrected to reflect that he was not disenrolled from the Air Force Reserve Officer Training Corps (AFROTC), and that he be reinstated in order to be commissioned as an Air Force Officer.

2.  His AFROTC debt be eliminated.  

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APPLICANT CONTENDS THAT:

1.  His arrest for public intoxication was based on to the results of a portable breathalyzer test (PBT), which is inadmissible in court.  As a result, these charges were later dismissed and should not form the basis of his disenrollment from AFROTC.

2.  The subsequent investigation was faulty as it did not consider the fact that these charges were dismissed, nor were his other offenses considered in the proper context.  

3.  The principle of equity should compel the Board to grant the requested relief since his punishment far exceeds the gravity of his alleged indiscretion.  In addition, a great deal of ambiguity surrounds his level of alleged intoxication since he was not tested on a reliable machine.  

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

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STATEMENT OF FACTS:

On 5 September 2008, the applicant attended the University of Kentucky in cadet status with a graduating date of 4 May 2012.  

On 20 January 2009, an AFROTC Form 16, Officer Candidate Counseling Record, was initiated by the applicant’s counselor, unit admissions officer, because the applicant received a total grade point average (TGPA) of less than 2.5.  This was the applicant’s first conditional event for which he received a 2.42 TGPA for Fall 2008, effective 14 January 2009.  

On 26 January 2009, the applicant acknowledged receipt of the action.  

On 28 July 2010, an AFROTC Form 16, was initiated because the applicant was cited possession of alcohol as a minor, effective 14 July 2010.  This was the applicant’s second conditional event in which the applicant had six 1.75 liter bottles of whiskey in his vehicle on 12 March 2010.  His AFROTC scholarship was suspended.  

On 18 August 2010, the applicant acknowledged receipt and the unit commander concurred with the action.  

On 15 October 2011, the applicant was issued a uniform citation for alcohol intoxication.  

On 17 October 2011, an AFROTC Form 16, was initiated by the applicant’s counselor for being cited for alcohol intoxication.  This was the applicant’s third conditional event for failure to maintain military retention standards as a result of a civil involvement.  

On 17 October 2011, the unit commander concurred with the action and the applicant’s scholarship entitlements were terminated.  

On 8 November 2011, the applicant’s commander initiated AFROTC disenrollment action against him for failure to maintain military retention standards.  Specifically, he received a citation for alcohol intoxication.  

On 8 November 2011, an investigating officer (IO) was appointed to prepare a Report of Investigation (ROI) in regards to the facts relevant to the disenrollment action.  

On 8 November 2011, the applicant acknowledged receipt of the disenrollment action and did not waive his right to a disenrollment investigation. 

On 21 November 2011, the applicant was entered into a diversion program by the Fayette County prosecuting office, which resulted in the expungement of his alcohol intoxication charge.  

On 22 November 2011, the IO completed the ROI surrounding the disenrollment action initiated against the applicant.  It was found that the only inconsistency in the disenrollment investigation was the validity of the breathalyzer test.  Also, the applicant did not dispute the fact that he consumed alcohol or the fact that he tried to assist a friend who was being arrested.  However, he did dispute the level of alcohol impairment that was reported.  

On 1 December 2011, the applicant acknowledged receipt of the ROI and waived his right to respond.  

On 6 December 2011, an AFROTC Form 22, Cadet Personnel Action Request, was initiated by the applicant’s unit commander wherein he requested a waiver to retain the applicant.  

On 15 December 2011, a DD Form 788, Record of Disenrollment from Officer Candidate – Type Training, was initiated by the Air Force ROTC Registrar, for the applicant’s failure to maintain military retention standards when he was involved in his second alcohol related incident (ARI).  The registrar indicated the applicant was definitely not recommended to be considered in the future for acceptability for other officer training.  

On 27 January 2012, the applicant was disenrolled from AFROTC and discharged as a cadet. 

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AIR FORCE EVALUATION:

HQ AFROTC recommends denial indicating there is no evidence of an error or injustice.  The applicant contends an inadmissible portable breathalyzer test (PBT) that was expunged from his records should not have been used as evidence in his AFROTC disenrollment proceedings.  However, in this case, AFROTC took into consideration the applicant’s history and record as a cadet, observations of his judgment and potential as an Air Force officer, as well as the particular facts of his alcohol-related incidents involving civil authorities, prior to making a final determination on disenrollment.  Only after a careful review of the disenrollment records and the report of investigation, it was determined by a preponderance of evidence that the applicant failed to maintain military retention standards.  His records were properly reviewed through all levels at HQ AFROTC and his disenrollment and scholarship recoupment were fair, consistent, and impartially evaluated against all AFROTC cadets on a national level.  Specifically, the applicant was disenrolled as a result of two separate alcohol-related offenses, both of which involved civil authorities.  In the applicant’s first alcohol related incident, he acknowledged that any future alcohol-related incidents would result in investigation for disenrollment or dismissal from AFROTC if a RRFP waiver is not granted.  Nevertheless, he was involved in a second alcohol-related incident, in which he was cited for alcohol intoxication in a public place.  It is immaterial whether the PBT results were deemed inadmissible in court.  AFROTC’s investigation and final determinations were based on a preponderance of the evidence standard (i.e., “more likely than not”).  AFROTC is not bound by the same admissibility standards or heightened burden of proof required in state criminal courts.  AFROTC properly considered the PBT results, as well as the arresting officer’s observations and the applicant’s own admissions.  A preponderance of the evidence showed the applicant indeed was intoxicated with an excessive BAC and his arrest for alcohol intoxication served as an appropriate contributing basis for his disenrollment from AFROTC.  Regardless of the determination of “excessive” BAC, what must not be lost is the fact that the applicant placed himself in a problematic situation involving civil authorities on more than one occasion.  In accordance with AFI 36-2002, Regular Air Force and Special Category Accessions, and AFROTCI 36-2011, waiver decisions are based on the original charges that were levied against the individual, not necessarily the adjudicated results of the case.  Therefore, acquittals, dismissal of charges, nolle prosequi (to not pursue), expunged record, or pretrial diversion does not negate the significance of the underlying conduct.  In order to protect the interests of the Air Force, the available information concerning a person’s conduct and actions are used in determining the basis of eligibility rather than the legal outcome of a criminal proceeding.  Despite the applicant’s subsequent expungement of his criminal records, his alcohol-related offenses formed the legitimate basis of his disenrollment action.  As a result of the applicant’s second alcohol-related offense and his disenrollment from AFROTC, his scholarship was properly terminated in accordance with the terms of his AFROTC contract.  

A complete copy of the HQ AFROTC evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel argues the advisory opinion fails to fully engage each argument in the applicant’s submission:

		1.  While AFROTC Instruction 36-2011, paragraph 4.6.2, indicates that an investigation will commence, it does not specify that a dismissal must occur.  Consideration was not given to the fact that the applicant’s March 2010 minor in possession citation was expunged from his record.   Nor that the applicant’s October 2011 arrest was seventeen months after his first alcohol-related counseling.  The circumstances surrounding each incident as described in the advisory opinion or Report of Investigation does not support or substantiate the applicant’s failure to maintain military retention standards.  

		2  Contrary to the brief police report which indicated the applicant interfered with an arrest and was a danger to himself and others, witnesses stated the applicant was merely showing concern as a friend and was not a danger to himself or others.  
		3.  The applicant’s breathalyzer test was not questioned, even though portable breathalyzer test (PBT) results are not admissible in court.  This is due to several factors (i.e. inappropriate administration, calibration, breathing pattern of individual being tested, and the time lapse since alcohol consumption) which cause PBTs to provide false and overestimated blood alcohol content (BAC) levels.  As such, the applicant’s BAC could have been over stated and consideration should have been focused on why PBTs are inadmissible.  Also, the applicant’s statement that he drank as many as eight beers and two mixed drinks prior to his arrest was taken out of context.  He consumed these beverages over the course of approximately seven hours and there are statements to contest to his behavior and level of intoxication.  

		4.  The applicant’s BAC was never accurately recorded because he was not administered a stationary breathalyzer test or a field sobriety test.  Because the AFROTC investigation and final determination were based on a preponderance of the evidence, HQ AFROTC is setting an arbitrary standard that could allow disenrollment with potentially dubious and suspect evidence.  If AFROTC investigations are based on a preponderance of the evidence, there must be assurance that the evidence used is legitimate and not arbitrarily selected.  However, because the PBT is inadmissible, the only remaining evidence is the tersely written police report, which does not meet the preponderance of the evidence standard. 

		5.  The applicant’s equity argument was not considered nor was a holistic approach taken in regards to his disenrollment action.  An objective assessment of his entire career would have found a disenrollment action unjust and unfair.  He was fully supported by leadership for retention and his potential as an officer.  A holistic approach would have taken in account the mishandling of the applicant’s arrest; specifically, the failure to test his BAC with approved devices, the expungement of the incidents from his record, four years of service and his potential as an officer.  

A complete copy of the applicant’s response is at Exhibit E.  

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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 an error or injustice.  The applicant’s complete submission, including his response to the Air Force evaluation, was thoroughly reviewed and his contentions duly noted; however, in our view, the Air Force office of primary responsibility (OPR) has conducted a thorough review of the evidence of record and addressed the issues presented by the applicant.  We agree with the opinion and recommendation of the OPR and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice.  We are not persuaded that his disenrollment action was inappropriate, unduly harsh, or disproportionate to the circumstances of the applicant’s service as a cadet.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application.  

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THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered AFBCMR Docket Number BC-2012-05482 in Executive Session on 10 September 2013, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 9 November 2012, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, HQ AFROTC, dated 25 January 2013,
                 w/atchs.  
     Exhibit D.  Letter, SAF/MRBR, dated 3 February 2013.
     Exhibit E.  Letter, Applicant, dated 26 February 2013.




                                   
                                   Panel Chair

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