RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 	DOCKET NUMBER: BC-2013-05886

			COUNSEL:  

		HEARING DESIRED:  YES 
	


APPLICANT REQUESTS THAT:

1.  His disenrollment from Air Force Reserve Officer Training Corps (AFROTC) be set aside.

2.  In the alternative, Section IV of DD Form 785, Record Of Disenrollment From Officer Candidate - Type Training, be changed to reflect he be recommended for reentry if physical defects are corrected or if such defects are not disqualifying for other programs. 


APPLICANT CONTENDS THAT:

Through counsel, the cadet disenrollment proceedings were done with blatant disregard for applicable instructions; therefore, his disenrollment included both error and injustice.  

	a.  There is no proof his AFROTC Detachment (Det 14) complied with the requirement of AFI 36-2011, Air Force Reserve Officer Training (AFROTC) Program, paragraph 3.2.1.3.1., which states “Detachments must counsel all cadets to report changes in medical status.  Specifically, cadets must be counseled to report any medical treatment (to include prescription medication), illness, injury, or other change in medical status.”  Council’s request for proof the applicant was counseled on this requirement has yet to be answered.  

	b.  He honestly forgot he had been prescribed and had sporadically been taking the medicine Zoloft.  He reported his Zoloft prescription to medical personnel on 5 Aug 13.  It is completely illogical that a cadet would intentionally lie on a form only to entrap himself by telling the truth a few months later. 

	c.  The applicant did not take Zoloft until Aug 12.  The only other prescription medication he took was the drug Fluvoxamine.  In 2008, the applicant was having a difficult time adjusting to puberty and his mother took him to their family physician who prescribed Fluvoxamine for a trial period.  After approximately six months the applicant stopped taking the medication because it was not helping his adjustment to puberty.  It was not until 24 Nov 13 that the applicant learned he had never been prescribed Zoloft while going through puberty.  It is almost incomprehensible the Air Force would seek to end a promising military career, recommend against any other form of commissioning, and seek recoupment of a scholarship because a cadet failed to investigate and report a prescription drug his family physician prescribed while going through puberty.  

	d.  On 22 Aug 13, the applicant was examined by a civilian doctor of adult psychiatry who opined that although the applicant’s doctor prescribed Zoloft “with good intention” he “may or may not have needed it at the time,” the applicant never met a full-fledged anxiety disorder, and his condition was “more of an adjustment disorder with some anxiety.”  He was simultaneously taking the three most difficult courses in his major area of study, was several months away from his impending marriage, and was dealing with the challenges of the AFROTC Program.  

	e.  Det 14 failed to comply with the requirements in AFROTCI 36-2011, Cadet Operations, paragraph 5.7.5., which state “Note: Fairlure (sic) by a Cadet to report a change in medical status will be considered a civil involvement with military authorities and be handled in accordance with paragraph 4.5.”  Det 14 failed to comply with paragraph 4.5 because it did not accomplish AFROTC Form 4, Affidavit-Civil Involvement, and AFROTC Form 35, Certification Of Involvements With Civil, Military Or School Authorities/Law Enforcement Officials, as required by the instruction.  

	f.  The disenrollment authority states the applicant had been reminded of his responsibilities “on numerous occasions.”  He must be referring to the AFROTC Form 16, Officer Candidate Counseling Record, which is the only possible document cadets receive on “numerous occasions.”  However, the AFROTC Form 16 is silent as to prescription drug use.  It requires reporting only if a physical has been administered and is qualified and certified.  The applicant never had a qualified/certified physical as referred to by AFROTC Form 16, Block IV.2.d.  As AFROTC Form 16 is written, Blocks IV.2.d. and IV.5. leave it to the cadet to decide if they have experienced a change in medical status.  The applicant felt he had not experienced a change in his medical status.  

In addition, the applicant was denied his due process right to have a proper disenrollment hearing conducted.  The investigative disenrollment process was mishandled in the following ways:

	a.  During the applicant’s disenrollment hearing, counsel was not allowed to ask questions, even though there are no such restrictions in the regulation.  

	b.  The Investigating Officer’s (OI) Report of Investigation (ROI) was superficial and selectively included only excerpts from AFROTCI 26-2011 which were harmful to the applicant.  Further, the applicant’s personal appearance at the hearing was scheduled after the ROI was completed.  Therefore, the ROI did not initially summarize the applicant’s oral presentation.  The applicant was denied the basic due process right of having his version of events summarized, then included in the package for consideration by the commander.  

	c.  The IO investigated the case prior to his official appointment and therefore, did not meet the “unbiased” characteristic required of IOs per AFROTCI 26-2011, paragraph 3.3.2.5.  The IO also acted unprofessionally at the hearing.  

	d.  The applicant was never sworn-in at the oral hearing as required.  In addition, the IO failed to comply with      AFI 26-2011, paragraph 3.5.2 which requires him to “note all issues raised by the cadet and investigate them if appropriate.”  The ROI is silent as to the issues the applicant raised at the hearing.  

	e.  The Detachment Commander has never heard the applicant’s explanation of what happened.  

The bottom line is the applicant failed to report information he was not aware he need to report.  He did not know he needed to report the information because his detachment failed in their duties to brief him.  Det 14 rushed to judgment and concluded the applicant’s action constituted an intentional lie.  He was disenrolled unjustly.  His commission can be held in abeyance pending completion of the two year waiting period required for his use of Zoloft in 2012 and early 2013.  

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


STATEMENT OF FACTS:

The applicant was a cadet in Air Force ROTC Detachment 14 during the matter under review.  

On 2 Sep 11, while taking his Department of Defense Medical Examination Review Board (DoDMERB) physical examination, he checked block 22 of DD Form 2492, DoD Medical Examination Review Board (DoDMERB) Report of Medical History, and signed said form affirming he never had “depression, anxiety, excessive worry, or nervousness.”  

On 22 Mar 13, the applicant accomplished FAA Form 8500-8, Medical Certificate and Student Pilot Certificate, and in Blocks 17a and 18m answered “No,” affirming he was not currently using any medication (prescription or non-prescription), and that he had no “mental disorders of any sort; depression, anxiety, etc.”   

On 5 Aug 13, during his FAA flight physical, the applicant admitted he had been prescribed Zoloft in Aug 12 by his civilian provider and was still taking the medication (although sporadically). 

On 5 Sep 13, the applicant was issued an AFROTC Form 10, Administrative Disenrollment Action Worksheet, notifying him disenrollment proceedings had been initiated against him for “failure to maintain military retention standard:  specifically, integrity violation, failure to report change in medical status, (and) failure to provide documentation relating to change in medical status.”

On 10 Sep 13, he was determined to be medically disqualified for commission/enlistment.  

On 12 Sep 13, the applicant attended his disenrollment hearing conducted at Det 14, and was represented by counsel. 

On 21 Oct 12, the applicant’s commander recommended he be disenrolled from AFROTC. 

On 23 Oct 12, the discharge authority directed the applicant be disenrolled and, citing the medically disqualifying nature of the incident, recommended recoupment vice extended active duty service.  

On 12 Nov 13, the applicant was disenrolled from AFROTC under the provisions of AFI 26-2011, paragraph 6.1.5 and    AFROTCI 36-2011, paragraph 11.4.2.2.4.3, for failure to maintain military retention standards.  The applicant “failed to maintain military retention standards and showed a lack of integrity when he failed to disclose potentially disqualifying medical information prior to contracting and failed to report a change in his medical status to detachment personnel when reminded on numerous occasions.”  

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.    


AIR FORCE EVALUATION:

AFROTC/CC recommends denial indicating there is no evidence of an error or an injustice.  On 12 Nov 13, the applicant was disenrolled in accordance with guidance outlined in AFI 36-2011 for failure to maintain military retention standards by not disclosing potentially disqualifying medical information prior to contracting and by failing to report a change in his medical status to his ROTC detachment cadre.  On 2 Sep 11, during his DoDMERB physical examination the applicant did not document any past or current medical issues and did not bring any issue to the attention of the physician who performed his examination.  On 22 Nov 11, during his pre-enlistment briefing, the applicant was notified of his duty to tell the cadre about any medical changes to include his taking any prescription drugs and/or any mental health issues.   On 22 Nov 11, he signed an AFROTC contract.  On 22 Mar 13, the applicant filled out his medical flight pre-screening form (FAA Form 8500-8) and still did not annotate any history of medical or mental health treatment or prescription medication usage.  In the Spring of 2013, the applicant started seeing a civilian doctor and began taking prescription medication (Zoloft).  He did not notify any of the cadre of the change in his medical status.  Only months later during a flying class physical did he report his medical condition and his history of medical treatment.  After reporting his condition, he was then reluctant to provide more information that was needed to assess his condition.  

A cadet disenrollment involves an administrative, non-adversarial, fact-finding process outline in AFROTCI 36-2011, Cadet Operations, which does not create any due process rights beyond those listed on the AFROTC Form 10, Administrative Disenrollment Action Worksheet.  The process allows for a personal appearance with the disenrollment investigation officer (IO) and allows the cadet to provide testimonial evidence or to submit written material.  The personal appearance is not a trial or a hearing and the rules of evidence and procedure do not apply.  On 5 Sep 13, the applicant signed the AFROTC Form 10.  The IO complied with the written instructions in carrying out his duties. 

The applicant claims the IO conducted himself unprofessionally and was biased in the investigation.  However, the disenrollment process allows for a cadet to challenge the IO for cause if they believe the IO is biased or cannot act in an impartial manner.  The applicant acknowledged on the AFROTC Form 10 that he could challenge the IO, but he did not challenge the IO in this case.  Unprofessional conduct on the part of the IO could not be confirmed, but regardless, it did not have a material effect on the outcome of the case, which was independently reviewed at multiple levels at the detachment and HQ AFROTC before a final decision was made.  

The medical professionals at AETC/SGPS subsequently determined the applicant was not/is not medically qualified for accession into the Air Force.  Therefore, he cannot re-enter AFROTC.  

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


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 7 Jan 15 for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office.


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.  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 (OPR) and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  While the applicant’s counsel contends the Air Force has not proven the applicant was counseled on his responsibilities to report changes in his medical status, the responsible commander confirms the applicant was briefed of his responsibilities to notify the cadre about medical changes, to include taking any prescription drugs and any mental health issues, on 22 Nov 11.  The Board believes the applicant was given sufficient notification and ample opportunity to report any history of mental health treatment and/or prescription medication use and therefore knew, or should have known, that seeking medical attention for stress from a civilian provider, and being prescribed and admittedly taking Zoloft while enrolled as a cadet in AFROTC required an immediate report to his AFOTC leadership.  In addition, the Board notes the applicant’s multiple concerns with the execution of the disenrollment process, however, the disenrollment process is not a legal procedure but an administrative process.  Given the position of the Board stated above, we believe the ultimate outcome of the process would have been the same regardless of the multiple procedural concerns raised by council.  In other words, any perceived procedural error was harmless error.  Without significant evidence to indicate the applicant did not fail to report his medical status as alleged, the Board will not insert itself in the place of the responsible commander who had responsibility, the authority, and the necessary information at the time to make a reasoned determination.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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 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.


The following members of the Board considered AFBCMR Docket Number BC-2013-05886 in Executive Session on 19 Feb 15 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence pertaining AFBCMR Docket Number BC-2013-05886 was considered:

	Exhibit A.  DD Form 149, dated 16 Dec 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFROTC/CC, dated 28 Jul 14.
Exhibit D.  Letter, SAF/MRBR, dated 7 Jan 15.