RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2013-01492
      COUNSEL:                  
	                 			HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT: 

1. His DD Form 785, Record of Disenrollment from Officer 
Candidate – Type Training, be corrected in Section IV to reflect 
a numerical rating of: “1” (Highly Recommended), “2” 
(Recommended as an average candidate, or “3” (Should not be 
considered without weighing the “needs of the service” against 
the reasons for this enrollment), rather than “5” (Definitely 
not recommended).  

2. His reentry (RE) code be changed from “4L” (Separated 
commissioning program) to one that will allow him to reenter the 
military.  

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APPLICANT CONTENDS THAT:

His DD Form 785 contains falsehoods and inflammatory allegations 
that were vindictively selected to create a picture of a sexual 
predator.  In addition, his numerical rating of “5” on his DD 
Form 785, Section IV, is not the appropriate rating.  

In support of his appeal, the applicant provides a statement 
from his counsel, a personal statement; and, copies of his 
Letter of Reprimand (LOR), Air Force Office of Special 
Investigations (AFOSI) Report of Investigation (ROI), 
Parachutist Badge Award order, No Contact Order, Article 15 
documents, disenrollment documentation, DD Form 785, educational 
debt documentation, Wage Garnishment documents, discharge 
documents, Colorado Criminal History Information Sheet, Report 
of Conduct, Memorandum for Record, and numerous character 
references.  

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

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STATEMENT OF FACTS:

On 29 June 2006, the applicant entered the USAFA to begin basic 
cadet training.  On 19 April 2010, he was notified that 
discharge action was being initiated against him for a pattern 
of cadet and Uniform Code of Military Justice (UCMJ) 
infractions.  The allegations included the applicant having 
created inappropriate and offensive emails, multiple allegations 
of him sending offensive emails (to include nude photos) using a 
government server, having a bottle of alcohol in his cadet 
dormitory room, wrongfully engaging in an unprofessional 
relationship, and violation of a no contact order.  The hearing 
officer appointed to investigate these allegations, found by a 
preponderance of evidence, that the applicant had committed five 
of the six allegations that were brought against him.  In June 
2010, the Commandant considered the Hearing Officer’s Report, 
the transcript of the proceedings, and the applicant’s matters; 
and, elected to forward the case to the USAFA Superintendent 
with a recommendation that the applicant should be disenrolled 
with a general (under honorable conditions) discharge.  On 25 
June 2010, after considering the Commandant’s recommendation 
along with the aforementioned documents, the Superintendent 
agreed with the recommended disenrollment.  On 12 August 2010, 
the USAFA Superintendent, after considering the applicant’s 
written matters regarding how he would like to fulfill his 
Active Duty Service Commitment (ADSC), recommended to the 
Secretary of the Air Force (SecAF) that the applicant should 
monetarily reimburse the Government in fulfillment of his ADSC.  
On 14 October 2010, SecAF determined the applicant should be 
ordered to monetarily reimburse the United States Government for 
the cost of his educational expenses incurred while at the 
USAFA.  The applicant was ordered to pay $168,738.00.  

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AIR FORCE EVALUATION:

USAFA/A1A recommends denying the applicant’s request to change 
his RE code.  A1A states that changing the applicant’s RE code 
to anything other than “4L” would conflict with current 
Department of Defense (DoD) and Air Force guidance.  The only RE 
code that applies, by verbiage alone, is “separated 
commissioning program eliminee.”  Since the USAFA is a 
commissioning program, the RE code “4L” is appropriate 
regardless of the reason for separation.  

The complete A1A evaluation, with attachments, is at Exhibit C.  

USAFA/JA recommends denial.  JA states that in this case, 
Section III of the DD Form 785 correctly states the 
circumstances surrounding the applicant’s factual situation at 
the time of his disenrollment from the USAFA.  The applicant was 
in fact disenrolled due to his own misconduct.  Though his 
counsel argues that the applicant emailing nude photographs of 
himself to a thirteen year old girl is an unsubstantiated 
allegation, the fact is the applicant’s commander considered the 
applicant’s written response to his LOR and decided to keep the 
LOR in effect.  Regardless of the recipient’s age, it is 
inappropriate and against regulations for an officer candidate 
to be emailing photos of his genitalia over the government 
server.  While the applicant’s written response may explain his 
confusion about the recipient’s age, the fact remains that he 
emailed explicit material over a government computer server to a 
child.  Further, the applicant did receive an Article 15 action 
for substantiated specifications of his unprofessional 
relationship with a USAFA preparatory cadet candidate and for 
violating a no contact order from his command.  That Article 15 
action was reviewed by USAFA/JA and found to be legally 
sufficient.  It would not be consistent with USAFA’s process and 
procedure to simply state that the applicant received an Article 
15 without stating the specifications as the he proposes.  
Finally, the applicant was on aptitude probation at the time of 
his disenrollment.  Nothing in Section III or IV of his DD Form 
785 is inaccurate.  The language on the form was proposed by the 
USAFA Deputy Staff Judge Advocate (SJA) and approved by the 
USAFA Superintendent in the staff package.  The language was not 
selected because the Deputy SJA was seeking vindictive language 
meant to create a picture of the applicant as a sexual predator, 
but rather because the language succinctly and accurately 
captured an assessment of the facts that led to the applicant’s 
disenrollment that would fit in the limited space on the DD Form 
785.  The processing of his case and DD Form 785 was handled no 
differently than any other cadet disenrolled from the USAFA.  

The applicant also argues that the numerical rating of “5” is 
not the appropriate rating and that he should have his DD Form 
785 amended to reflect a “1,” “2,” or “3.”  The guidance from 
Air Force Instruction (AFI) 36-2012 states a rating of “5” 
should be assigned to those whose aptitude or personal behavior 
have consistently failed to meet the minimum standards.  The 
applicant does have a documented history of serious problems as 
shown by the hearing officer having substantiated five of the 
six allegations brought against the applicant at his 
disenrollment hearing.  Further, substantiated specifications 
for punitive articles of the UCMJ in an Article 15 show the 
applicant’s involvement in some illegal activity and there is 
evidence of sexual misbehavior in that he did email nude photos 
of himself over a government server.  As the applicant was also 
on aptitude probation at the time of the disenrollment, a “5” 
rating is further supported because there was evidence of 
deficiency in conduct or aptitude as part of his record.  His 
entire chain of command supported the “5” rating based on the 
applicant’s entire record.  

The applicant’s attorney states the applicant did not have the 
right to counsel at his hearing officer review.  This simply is 
not true.  While the hearing officer proceedings is an 
administrative, non-adversarial hearing and the applicant’s 
counsel is not physically allowed in this fact-finding venue, 
the counsel has many opportunities to stay engaged in the 
process.  In fact, the applicant was represented by an Area 
Defense Counsel (ADC) throughout the hearing process and all of 
her arguments were addressed by the Hearing Officer and through 
a legal review before the applicant’s case was even presented to 
the Commandant or Superintendent for their disenrollment action.  

The applicant’s attorney also alleges that it was wrong for the 
hearing officer to not consider the over twenty character 
statements the applicant submitted in the course of his hearing 
officer proceedings.  In accordance with AFI 36-2020, the 
hearing officer is the fact finding forum charged to 
substantiate the allegations by a preponderance of evidence.  
Since the character references did not go to the facts, they 
were not relevant to the hearing officer’s findings; however, 
the Commandant and Superintendent did consider each of the 
character references as they use the “whole person” concept 
review when they make their recommendations and decisions on a 
case.  

The applicant, through his counsel, accurately points-out that 
the date on his DD Form 214 and his Request and Authorization 
Reassignment /Separation – Air Force Military Form should be the 
same.  However, the applicant alleges the date on his DD Form 
214 is inaccurate.  In fact, his DD Form 214 is accurate and the 
proper date on both forms is 14 October 2010.  Shortly after 
Special Order of the Air Force (SO-AF) 142, dated 9 May 2011, 
was published, the erroneous 14 October 2011 separation 
effective date was discovered.  An amendment to SO-AF 142, dated 
24 May 2011, was generated to correct the administrative error 
of the wrong year being reflected on the original separation 
order.  

The applicant also notes that his Parachutist Badge he earned 
while at the USAFA is not reflected on his DD Form 214.  
USAFA/A1A has verified that he did in fact earn the badge.  They 
have generated a DD Form 215, Correction to DD Form 214, 
Certificate of Release or Discharge from Active Duty, to correct 
this error.  In addition, they corrected his record to reflect 
his award of the Air Force Organizational Excellence Award.  

The complete JA evaluation is at Exhibit D.  

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COUNSEL'S REVIEW OF AIR FORCE EVALUATION:

It is an unrealistic expectation that his client had to present 
his own case in a hearing of officers.  An attorney is necessary 
to adequately defend a respondent in a hearing like this.  In 
this case, the author of the Air Force advisory asserts the 
allegation that his client sent nude photographs of himself over 
the Government network.  This allegation was substantiated by 
the Hearing Officer despite testimony of an AFOSI Agent 
indicating that AFOSI could not say whether or not the emails 
were sent over the government network.  

In addition, the DD Form 785 is misleading and vindictive.  
Considering the time of the email incident relative to his 
client’s separation from the Academy, 21 months later, it is 
clear that this allegation has no place on the DD Form 785 as a 
reason for disenrollment.  Listing it is simply vindictive.  The 
description on the DD Form 785 lists incidents of misconduct 
that led to his Article 15 punishment and the separate incident 
involving emailing photographs to women out of town.  His client 
received other letters of caution or reprimand while in cadet 
status, but none of them were listed on the DD Form 785.  Simply 
put, there were other incidents of misconduct that could have 
been listed without overreaching like this.  

His client respectively requests that the Board correct his DD 
Form 785, Section III, to reflect only that he was the subject 
of an Article 15 action while in cadet status; and, to alter the 
evaluation in Section IV to reflect either a “2” or “3.”  This 
document, as is, precludes his client from being able to serve 
in the military in any capacity.  His ultimate goal and the 
requested changes may allow him that opportunity.  

The counsel’s complete rebuttal is at Exhibit F.  

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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 an 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 basis for our 
conclusion the applicant has not been the victim of an error or 
injustice.  We note the applicant’s contentions; however, we are 
not persuaded by the evidence and counsel’s arguments that the 
actions taken against the applicant were arbitrary or 
capricious.  It appears the RE code given the applicant is 
correct and that he has not been treated any differently than 
any other similarly situated cadet disenrolled from the Academy.  
Additionally, the Board also concluded the USAF Academy 
Superintendent made a fully qualified decision regarding the 
applicant’s dismissal.  While the impact of these actions on the 
applicant’s career may be regrettable, we do not find the 
actions serve to make the applicant the victim of error or 
injustice.  Therefore, in the absence of evidence to the 
contrary, we do not find it in the interest of justice 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 issue involved.  
Therefore, the request for a hearing is not favorably 
considered.

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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.

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Although              chaired the panel, in view of her 
unavailability -               has agreed to sign as Acting 
Panel Chair.  The following members of the Board considered 
AFBCMR Docket Number BC-2013-01492 in Executive Session on 
16 January 2014, under the provisions of AFI 36-2603:

	                   , Vice Chair
	                   , Member
	                   , Member

The following documentary evidence was considered in connection 
with AFBCMR Docket Number BC-2013-01492:

Exhibit A.  DD Form 149, dated 19 Mar 13, w/atchs.
Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Letter, USAFA/A1A, dated 22 Apr 13, w/atchs.
Exhibit D.  Letter, USAFA/JA, dated 9 May 13.
Exhibit E.  Letter, Counsel, dated 26 Jun 13, w/atch.
Exhibit F.  Letter, SAF/MRBR, dated 6 Jan 14.




                   
Acting Panel Chair



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