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Know the risks before you go: The Air Force Academy will disenroll a cadet with less due process than either the Army or Navy Academies.

Military Law

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The United States Air Force Academy located in Colorado Springs, Colorado is the Air Force’s most prestigious and esteemed officer commissioning university program in the country. Several senior Air Force Generals serving today in leadership positions across the globe began their career at the Air Force Academy. The Army has its distinguished academy commissioning officers at West Point, New York. History knows the names of both General Grant and General Lee from the Civil War as distinguished graduates of West Point. Likewise, the Naval Academy commissions Midshipmen to become future navy officers from its location in Annapolis, Maryland. Several historically impressive Admirals graduated from Annapolis. Many other future officers’ commission through various university facilitated commissioning programs known as the Reserve Officer Training Program across the country. Others commission through enlistment then selection for Officer Candidate School. The ranks of senior leaders are populated in this order, first the pinnacle of commissioning is considered graduation from a service academy; then ROTC is generally considered prestigious depending on the specific university and its ratings and then the bottom of the officer corps is filled out by Officer Candidate School. Specialized professionals often commission through what is known as the “direct commission program” which is reserved for religious clergy, doctors and lawyers only.

What the Air Force fails to disclose to potential future cadets looking at the Air Force Academy as an option in pursuing a military career among the ranks of highly qualified high school graduate applicants is that if you get in trouble at the Air Force Academy you face due process lacking summary disenrollment and expulsion. You read that correctly. Every single year a large percentage of Air Force Cadets are dismissed often pretextually over very minor infractions and without any even basic minimal due process. The due process they claim they utilize is often a sham and scam. Arguably the Air Force by failing to disclose to parents and future students the fact that you could be arbitrarily dismissed on flimsy grounds with minimal due process protections after a significant investment in life and after having turned down other viable options is equivalent to common law fraud.

Why is it fraud? The elements of common law fraud are: A representation to plaintiff, the representation is material, the representation was false and the defendant made the representation to the plaintiff and knew it was false or made the representation recklessly without knowledge of its truth. Here, the Air Force is representing to parents and future students false claims that commissioning though its program is better than its competitors when it is clearly much more risky since if you have any blemishes or are accused of any mistakes you may be summarily dismissed in contradistinction to the protections offered by both the Navy and Army service academies. This is common law fraud primarily because across the Department of Defense in commissioning programs utilized by both the Army and Navy students and cadets facing dismissal are entitled to a neutral detached board of independent officers to holistically examine the purported merits of any alleged misconduct or basis for removal from the program. The Air Force Academy DOES NOT offer cadets facing removal a neutral detached separate board to holistically examine the merits of being removed. They simply notify the cadet in writing, offer a minimal number of days to respond and then rubber stamp them out the door unless you bring significant legal firepower to launch an aggressive counter attack to save your career. The Army holds what is known as a “disenrollment board” usually with three senior officers to conduct a fair hearing. The Navy holds what is known as a PRB, (Performance Review Board). The Air Force skips this step entirely and just tosses cadets out left and right with minimal due process. The failure of the Air Force to explain the lack of protections to its cadets or the far less generous due process rights of its cadets in comparison to Army cadets and Navy Midshipman is both unethical and fraudulent and not in accordance with fundamental tenants of basic due process.

ROTC cadets in the Army and Navy are afforded certain safeguards concerning investigations and disenrollment proceedings in order to comport with the United Sates Constitution and judicial precedent. In the Army, a cadet facing involuntary disenrollment is afforded the following: the right to personally appear before a Board of Officers; the right to assistance in preparation of the hearing; the right to be furnished a copy of all documentary evidence that supports the disenrollment action; the right to be notified of the proposed disenrollment action; an opportunity to rebut any investigatory findings; and the right to be heard by an impartial board. See Army Regulations 145-1, 15-6, and CC Pam 145-4.  These same or similar rights are afforded to Navy ROTC Cadets and Midshipmen.  Naval Service Training Command Regulation M-1533.2c, CH-2 sets forth the rights of cadet’s subjected to involuntary disenrollment from any Naval ROTC program or the U.S. Naval Academy. A cadet or Midshipman facing involuntary disenrollment has the following rights: the right to appear before a Performance Review Board; the right to provide a written statement to the Board; the right to present documents and witnesses on their own behalf; the right to be notified at least five full business days prior to the convening of a Board; the right to be presented with a copy of all documentation presented for consideration prior to the convening of said Board. See NSTC M-1533.2c, CH-2, Chapter 6.

The rights of a USAFA and ROTC cadet facing involuntary separation are outlined in USAFAI 36-3504. That regulation affords cadets facing disenrollment certain rights, but those rights are only triggered when disenrollment is based on specific violations. Simply put, the regulation affords some cadets basic due process rights, while simultaneously denying those rights to others. Specifically, a cadet who has demonstrated a deficiency will be afforded the following rights pursuant to USAFAI 36-3504: the right to receive notice of the reasons for disenrollment; the right to be furnished a copy of all documentation forwarded to the disenrollment authority; the right to consult with counsel; the right to submit statements in rebuttal; and the right to a personal appearance with the initiator of the discharge and/or Commandant of Cadets when the basis for disenrollment is conduct and/or aptitude deficiencies. See USAFAI 36-3205, 23.5.  Nowhere in the regulation is a cadet provided with an opportunity to present his or her matter to a neutral and impartial board. Rather, a Cadet is only allowed an opportunity to submit initial rebuttal matters. This is in stark contrast to the rights afforded to cadets of other service academies who not only have the right to submit rebuttal materials, but also have the right to contest the proposed action before a board. Further, a cadet who is facing involuntary disenrollment for any deficiencies, to include honor infractions, may request a personal appearance with the USAFA Superintendent before he/she takes final action. However, this right is not absolute and requests to meet with the Superintendent are “at the USAFA Superintendent’s discretion.” See USAFAI 36-3504, 23.4.

In Andrews v. Knowlton, 509 F.2d 898, (2d Cir. 1975), the Court affirmed previous decisions which held that a cadet must be notified of the specific charges against him or her; must be given an adequate opportunity to present his or her defense; and must be afforded a hearing before he or she can be dismissed or disenrolled from a service academy. Id at 905. See Wasson v. Trowbridge, 382 F.2d 807 (2d Cir. 1967)(holding that the service academies are subject to the fifth amendment and that cadets must be afforded due process before separation); Hagopian v. Knowlton 470 F.2d 201 (2d Cir. 1972) (holding that a cadet must be allowed to appear and present evidence, including witnesses, on his or her own behalf).

The Air Force is simply not following very persuasive case law and the Supreme Court has never decided this specific issue: How much due process does a service academy cadet get per the basic contours of constitutional law protections? In the meantime, parents and potential future students be warned: joining the Air Force academy puts you at risk of career ruin with minimal due process protections. The Army and Navy at least have more checks and balances to root out blatant corruption.

I have visited more than 46 states representing cadets and midshipman across more than 200 commissioning programs across the country and fight for young adults daily to save their hope and dream of commissioning as a military officer. Do not give up your dream of commissioning without a strong fight!

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