Petition for Writ of Certiorari — McCrackin v. United States

—

we

91-235 |

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

JAMES F. MCCRACKIN,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeais

for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

E. WINDELL MCCRACKIN

McCRACKIN, BARNETT & RICHARDSON

1000 21st Avenue North

Post Office Box 1182

Myrtle Beach, SC 29578

August 8, 1991 (803) 448-8405

WILSON - EPES PRINTING CO INc. - 789-0096 - WASHINGTON. D.C. 20001

QUESTIONS PRESENTED

1. Whether the Secretary of the Air Force exceeded

his authority or abused his discretion under 10 U.S.C.,

§ 2005, in determining that Petitioner was not eligible

for enlisted. service.

2. Whether the Secretary of the Air Force had au-

thority under 10 U.S.C., $2005 to disregard and not

abide by AFR 30-2, AFR 33-3 and AFR 53-3 in deter-

mining that Petitioner should be assessed education costs

without first ordering him to active duty.

(i)

TABLE OF CONTENTS

Page

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ESE a e 1

lcd cecatinncibeicnscnibiiunsumnienersstermee 1

STATUTES AND REGULATIONS INVOLVED .......... 2

Need aclecnses oeassenginoureseeraeeseanace 2

REASONS FOR GRANTING THE PETITION .......... 6

SER 14

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A re 6a

8 + ht AEE ee ea E 19a

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(iii)

iv

TABLE OF AUTHORITIES

CASES: Page

Bluth v. Laird, 435 F.2d 1065 (4th Cir. 1970) 7

Brooks v. Clifford, 409 F.2d 700 (4th Cir. 1969)... 7

Day v. United States, 441 F. Supp. 165 (N.D.,

Tex. 1977), reversed in part on other grounds,

611 F.2d 1122 (5th Cir. 1980), cert. den., 101

_ §.Ct. 316, 449 U.S. 919, 66 L.Ed.2d 146 (1980). 7

Harper v. Jones, 195 F.2d 705 (10th Cir. 1952),

cert. den., 73 S.Ct. 19, 344 U.S. 821, 97 L.Ed. 639

(1952) .. po dR ta SR ae rh Sine ee NT 6

Kolesa v. Lehman, (N. D., N.Y. 1984) 597 F. Supp.

ROR SO RID a ce R Ae Lae Ro oN aN Op AE 14

Morton v. Ruiz, 94 Ss. Ct. 1055, “415 U.S. 199, 39

L.Ed.2d 270 (1974) .... ~ 6

Service v. Dulles, 77 S.Ct. 1152, 354 U. Ss. 363, 1

L.Ed.2d 1403 (1957) . Pedi eats acne es on he 6

United States v. Heffner, 420 F.2d 809 (4th Cir.

tee NAT As SRC AIE LCA RA Bice tn SIS 7

Wimmer v. Lehma, (4th Cir. 1983), 705 F.2d

1402, cert. den., 104 S.Ct. 484, 464 U.S. 992, 78

a nee oe 13

STATUTES AND REGULATIONS:

rcs I IO es ctcccveesevessccesenes .....8, 6, 9, 10, 11, 18

pk a Re

10 U.S.C., Section 6959 ............ rae ee $3,138

yaa el AA TARR TE Reh Men cee LIK x

i) & 5 Sane POLST LER EE

Tt" Lagat LDAe | SEE ea A aC eee, 8, 4, 5, 7,9

REFERENCE BOOKS:

Webster’s New Collegiate Dictionary, 1977 ............. 9

Britannica-Webster Dictionary & Reference Guide,

IE Serene SK OI One nie ava See eaeeuderees

IN THE

Supreme Court of the United States

OCTOBER TERM, 199]

No, —————

JAMES F, MCCRACKIN,

“ Petitioner,

UNITED STATES OF AMERICA,

: Res pondent,

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

James F, McCrackin hereby petitions this Court for

a Writ of Certiorari to the United States Court of

Appeals for the Fourth Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fourth Circuit is unpublished. ‘App. A, pp. la-Sa).

The opinion of the United States District Court for the

District of South Carolina is reported in 736 F.Supp.

107. (App. B, pp. 6a-18a).

JURISDICTION

The United States Court of Appeals for the Fourth

Circuit sustained the trial court’s decision by Opinion

dated April 2, 1991. ‘App. A, pp. la-5a). Petitioner’s

timely Petition for Rehearing was denied on May 14,

2

1991 (App. C, p. 19a). This Petition is, therefore, filed

within the time allowed by law. The jurisdiction of this

Court is invoked under 28 U.S.C., § 1254(1).

STATUTES AND REGULATIONS INVOLVED

The statutory and regulatory laws involved are 10

U.S.C., § 2005; 10 U.S.C., § 9348; AFR 30-2; AFR 33-3

and AFR 53-3 (App. D and E, pp. 20a-44a).

STATEMENT

This action was commenced by the United States to

recover from McCrackin education costs for having at-

tended the Air Force Academy, after his disenrollment

from the Academy for misconduct. McCrackin answered

by denying that he was liable for such costs and affirma-

tively pleading that he should have been ordered to active

duty as an enlisted person rather than being discharged

from the Air Force and assessed education costs.

The District Court had jurisdiction under 28 U.S.C.,

§§ 1345 and 1346(2).

There were no issues of fact for decision. McCrackin

was appointed to the Air Force Academy in 1982. On

April 15, 1982, he signed “Cadet Acceptance Record”

(J.A. Exhibit 1, P. H1) consisting of Part I—Statement

of Understanding, and Part II—Obligation to Serve.

Pertinent parts of Part I—Statement of Understanding

are as follows:

In connection with my acceptance of appointment

as a cadet to the United States Air Force Academy,

I am aware that upon entering the Air Force Acad-

emy of the United States I am required by law to

serve in a military status (on active duty or in a

Reserve Component) for a total of six years unless

sooner discharged on grounds of personal hardship,

in accordance with regulations and standards pre-

scribed by the Secretary of Defense. I further under-

stand that the following legal provisions will apply,

3

should my appointment as a cadet be terminated for

reasons other than acceptance of a commission in a

Regular or Reserve Component of the Armed Forces,

or for physical disability:

d. A cadet or midshipman who does not fulfill

his agreement to complete the course of instruction

and accept a commission may be transferred to the

respective Reserve component in an appropriate en-

listed grade and may be ordered to active duty for a

period of time which cannot exceed four (4) years

(Title 10, U.S.C. 4348b, 6959b, 9348b).

He also signed a further “Statement of Understand-

ing” (J.A. Exhibit 2, P. II) on the same date. Applicable

parts thereof are:

I agree, as a condition of receiving advanced edu-

cation as defined in Title 10, United States Code,

Section 2005:

+ * * “

(2) that if I fail to complete the specific educa-

tional requirements, I will serve on active duty for

the specified period, and

(3) that if I voluntarily or because of misconduct,

fail to complete that period of active duty, I will, as

specified by the Air Force, reimburse the United

States for the percentage of the cost of my education

which the period not served on active duty is of the

specified period, and

These two understandings contained the requirements

of 10 U.S.C., §§ 9348 and 2005, respectively. (App. D,

pp. 20a-23a).

McCrackin was notified that the Academy was proceed-

ing to separate him from cadet status for violating Para-

graph 28a.(2), (4) and (6), AFR 53-3. (J.A., Exhibit

11, P. Rl; App. E, pp. 39a-40a!. The charges were ly-

ing on one occasion, use of marijuana on one occasion,

4

and failure to report another cadet for using a drug. He

was given immunity by the Academy for testifying for

the government against another cadet and this immunity

applied to any trial, Article 15, UCMJ action, or proceed-

ings under Paragraph 30, AFR 53-3. (J.A., Exhibit 7,

P. Nl).

Under pressure, McCrackin resigned from the Acad-

emy (not the Air Force) under Paragraph 18, § B, AFR

53-3, in lieu of proceedings under § E. (J.A., Exhibit 4,

P. K1). In his response to the notification of proceedings

he stated that he did not contest the allegations made

against him, and that he understood that the Secretary

would make the final determination of the type of sepa-

ration documents to be issued. In addition to the contents

of attachment 3 to AFR 53-3, (App. E, pp. 43a-44a) the

following sentence was added to his Tender of Resigna-

tion: “My resignation is submitted with the understand-

ing that a recommendation will be made to the Secretary

of the Air Force that my active-duty service commitment

[ADSC] be waived.” There was no statement added to

the Tender of Resignation that a recommendation would

be made to the Secretary that education costs be assessed.

This resignation was submitted upon advice of military

counsel appointed for McCrackin for the proceedings un-

der § E. Counsel did not advise McCrackin that he could

be charged for education costs if his ADSC were waived

(J.A., Affid., P. G4), and McCrackin specifically re-

quested an extension of time in which to enter active

duty so he could complete his education (J.A., Exhibit 5,

P. L1 and Affid. P. G4). He made no request for waiver

of education costs; in fact, AFR 53-3 (12-8-82) did not

provide for or allow such a request, and he was not

advised to make such a request. The 1986 edition of

AFR 53-3 was amended in this regard so that such a

request for waiver may be made now by a cadet. AFR

58-3 (2-6-86), $A 8.(d).

Several documents in the proceedings against Mc-

Crackin indicated that he was eligible for entisted service.

5

1. The Special Order dated May 23, 1985, (J.A. Exhibit

6, P. M1) relieving McCrackin from assignment con-

tained the sentence, “Cadet is authorized leave pending

separation from cadet appointment and call to active

duty.” 2. Record of Disenrollment (J.A., Exhibit 9, P.

P1) for McCrackin contained a statement that he was not

recommended for further officer training but gave no in-

dication that he was not eligible for enlisted service. It

further stated that his military and academic perform-

ance was above average. 3. The recommendation by the

Superintendent to the Secretary (J.A., Exhibit 12, P. $1)

indicated that McCrackin was eligible for enlisted serv-

ice as it suggested that his ADSC be waived. It also

stated that “Cadet McCrackxin does not meet the stand-

ards for enlisted status . . .” but did not refer to any

standards which guided the Superintendent. 4. The Ac-

ceptance of the Resignation (J.A., Exhibit 13, P. T1)

by the Deputy Assistant Secretary stated that “The Sec-

retary of the Air Force waives the requirement for active

duty provided for in AFR 53-3... .” (Emphasis added).

The case was submitted to the trial court on motions

for summary judgment by both parties, the facts not

being in dispute. Judge Hamilton issued his Order dated

April 13, 1990, in which he concluded that the Secre-

tary of the Air Force acted within his discretionary

power in determining that McCrackin was not eligible

for enlisted service. He further held that the government

Was not estopped from assessing education costs by any

action of appointed counsel for McCrackin.

The Court of Appeals for the Fourth Circuit affirmed

the trial judge, stating the following:

(a) “. . . Sinee McCrackin failed to complete his

active duty service commitment because of miscon-

duct, the government may recoup its expenses. .

(App. A. pp. 2a).

”

.

6

(b) “The Secretary’s determination to waive Mc-

Crackin’s service commitment under Section 2005 due

to his misconduct is a matter of discipline... . Be-

cause the Air Force determined that McCrackin’s

misconduct disqualified him from enlisted service,

the Air Force is entitled to recover its expenses under

Section 2005....” (App. A, pp. 3a-4a).

(c) “Regulation 33-3 does not apply to this case,

because it does not govern enlistment of cadets; nor

does it purport to define misconduct under Section

2005....”’ (App. A, p. 4a).

REASONS FOR GRANTING THE PETITION

This case is the first to arise under 10 U.S.C. § 2005

in which the Secretary ordered reimbursement of edu-

cation cost without first ordering the cadet to active duty.

(App. F, p. 45a). Petitioner believes the case to be of

great importance for future actions under § 2005, and

it is certainly of great importance to him.

In addition, the Court below failed to follow precedent

of this Court in holding that the Secretary was not re-

quired to follow AFR 33-3 in determining the qualifica-

tions of Petitioner for enlisted service and in finding that

the Secretary could find that Petitioner was morally dis-

qualified for enlisted service. In reaching these conclu-

sions, the Court below treated Petitioner uniquely in that

he was deprived of rights simply because he was a cadet,

while such rights are afforded both the officers and the

enlisted personnel of the Air Force.

This Court has held that an agency, including the mili-

tary departments, must abide by and follow its duly

promulgated regulations. Service v. Dulles, 77 S.Ct. 1152,

354 U.S. 363, 1 L.Ed.2d 1403 (1957): Morton v. Ruiz,

94 §.Ct. 1055, 415 U.S. 199, 39 L.Ed.2d 270 (1974).

These regulations should be enforced and obeyed until

amended or revoked by the agency. Harper v. Jones, 195

F.2d 705 (10th Cir. 1952), cert. den., 73 S.Ct. 19, 344

' 7

‘

7

U.S. 821, 97 L.Ed. 639 (1952). Duly promulgated reg-

ulations of an agency have the force of law. Day v.

United States, 441 F.Supp. 165, (N.D., Tex. 1977), re-

versed in part on other grounds, 611 F.2d 1122 (5th

Cir. 1980), cert den., 101 S.Ct. 316, 449 U.S. 919, 66

L.Ed.2d 146 (1980).

The Court of Appeals for the 4th Circuit in this ac-

tion did not follow this Court’s decisions in Service and

Ruiz, supra, nor its own prior decisions in Bluth v.

Laird, 435 F.2d 1065 (4th Cir. 1970); Brooks v. Clif-

ford, 409 F.2d 700 (4th Cir. 1969); and, United States

v. Heffner, 420 F.2d 809 (4th Cir. 1969).

AFR 33-3 sets forth enlistment criteria for the Air

Force. Nowhere therein does it describe conduct that

McCrackin was charged with as disqualifying one for

enlisted service. Paragraph 1-8(c) and (d) refer to

moral disqualifications and drug offenses. McCrackin’s

conduct does not fit under any of the terms stated in

these subparagraphs or the Tables and Figures referred

to therein (App. E, pp. 24a-35a).

The Government suggested and the Court of Appeals

noted that McCrackin’s resignation in lieu of action under

8 E of AFR 53-3 could amount to an adjudication of the

charges. This is contrary to the definition of the terms

as set forth in 1-i.i. of AFR 33-3 in effect at the time

(App. E, p. 24a). The definition specifically includes

UCM offenses. It does not allow an adjudication except

by “a court, judge, or other authorized adjudication

authority .. .” Thus, the Secretary’s acceptance of Mc-

Crackin’s resignation cannot be an adjudication as the

Secretary is not “an authorized adjudication authority.”

This Court in Ruiz, supra, stated the purposes of the

Administrative Procedure Act as follows:

The Administrative Procedure Act was adopted

to provide, inter alia, that administrative policies

affecting individual rights and obligations be promul-

a @erw™™,’™—

8

gated pursuant to certain stated procedures so as to

avoid the inherently arbitrary nature of unpublished

ad hoc determinations. See generally S. Rep. No.

752, 79th Cong., Ist Sess., 12-13 (1945); H.R. Rep.

No. 1980, 79th Cong., 2d Sess., 21-23 (1946). That

Act states in pertinent part:

“Fach Agency shall separately state and cur-

rently publish in the Federal Register for the

guidance of the public—

* : * *

(D) substantive rules of general applicability

adopted as authorized by law, and statements of

general policy or interpretations of general ap-

plicability formulated and adopted by the

agency.” 5 U.S.C. § 522(a) (1).

The sanction added in 1967 by Pub. L. 90-23, 81

Stat. 54, provides:

“Except to the extent that a person has actual

and timely notice of the terms thereof, a person

may not in any manner be required to resort to,

or be adversely affected by, a matter required

to be published in the Federal Register and not

so published.” /bid.

In this case the 4th Circuit and the district court have

sanctioned the Secretary’s ad hoc determination of the

eligibility of Petitioner for enlisted service, completely

disregarding regulations containing criteria for enlist-

ment and how Air Force personnel were to be treated

if involved with drugs. The provisions of AFR 33-3,

§ 1-8 c. and d. (App. E, pp. 24a-35a) do not disqualify

Petitioner from enlisted service. Likewise, the provi-

sions of AFR 30-2, §§ 3-31 b. (2) and (4) (App. E,

pp. 36a-38a) do not provide for the discharge of an air-

man or officer for a first offense use of marijuana.

The Academy treated the offenses alleged against Peti-

tioner as not warranting trial by court martial by ap-

pointing an investigating officer, and subsequently, a

9

hearing officer. (See § E, Paragraph 27, AFR 53-3, App.

E, p. 39a). Certainly, one offense under Article 15,

UCMJ, would not disqualify a member of the Air Force

from being eligible for enlisted service or be sufficient to

remove or discharge him from the Air Force. As a cadet,

Petitioner was subject to military law; he therefore,

should have been accorded the benefits of the regulations.

The Secretary used throughout these proceedings the

term “waiver” relating to Petitioner’s ADSC. There be-

ing no definition of “waiver” in AFR 33-3, the usual

meaning of the term should control. “Waiver” is defined

as “the act of intentionally relinquishing or abandoning

a known right, claim, or privilege; also: the legal instru-

ment evidencing such an act.” Webster’s New Collegiate

Dictionary, 1977; “the act of waiving a right, claim or

privilege 2: a document containing the declaration of a

waiver.” Britannica-Webster Dictionary & Reference

Guide, 1981. Thus, the Secretary and the Academy from

the beginning acknowledged that Petitioner was eligible

for enlisted service. Otherwise, they would not have used

the term “waiver.” The Secretary waived the obligation

which Petitioner owed the government. However, the

Secretary could not waive an obligation of Petitioner

without his consent under § 2005 and then order into

effect a duty to pay education costs, which but for the

waiver would not be owed by Petitioner to the govern-

ment. Yet, this is exactly what has occurred in this

case.

The general discretion given to the President and the

military commanders under him authorized by 10 U.S.C.

£16 is not here involved. Petitioner does not question

that discretion. See Harper, supra. However, Petitioner

contends that § 2005 does not give the Secretary discre-

tion in determining the eligibility of a cadet for enlisted

service. This is governed by AFR 33-3.

If Petitioner was not disqualified for enlisted service

by reason of his conduct, then the Secretary had no dis-

ita cei eee

10

cretion under § 2005 to elect whether Petitioner would

serve his ADSC or reimburse for education costs. The

statute required McCrackin first to serve his ADSC, and

if he failed to serve all or part of that commitment, then

he was required to pay the education costs for the period

not served. If the Secretary had any discretion in de-

terming McCrackin’s eligibility for enlisted service, he

abused it under the circumstances of this case.

In 1983, after McCrackin’s contract was executed,

§ 2005 was amended to add subsection (f) as follows:

(f) The Secretary concerned shall require, as a

condition to the Secretary providing financial assist-

ance under section 2107 or 2107a of this title to

any person, that such person enter into an agreement

described in subsection (a). In addition to the re-

quirements of clauses (1) through (4) of such sub-

section, any agreement required by this subsection

shall provide—

(1) that if such person fails to complete the edu-

cation requirements specified in the agreement, the

Secretary will have the option to order such person

to reimburse the United States in the manner pro-

vided for in clause (3) of such subsection without

the Secretary first ordering such person to active

duty as provided for under clause (2) of such sub-

section and sections 2107(f) and 2107a(f) of this

title; and... (Emphasis added).

The emphasized terminology clearly shows that an option

that does not exist under 2005(a) (3) was given to the

Secretary of the Air Force for purposes of 2005 (f) (1)

to require reimbursement for education cost without first

ordering the person (ROTC cadet) to active duty as re-

quired under 2005(a) (2). As no option existed under

2005(a) (3) for the Secretary, he was required to order

McCrackin to active duty if he was eligible for enlisted

service.

In this case the Secretary determined that McCrackin

had breached the contract and forced his removal from

a ee

11

the Academy as a cadet. This triggered the requirement

that Petitioner be ordered to active duty as an enlisted

person. The Petitioners’ conduct, while sufficient to cause

his separation from cadet status, was not sufficient to

keep him from serving his ADSC. He specifically asked

for a delay in the call to active duty in order to complete

his education (J.A., Exhibit 5, P. 11), and he had the

right to enter active duty under the contract. He did not

waive this right. The Secretary waived the government’s

right to such obligation of Petitioner. This waiver should,

Petitioner contends, constitute a waiver of any liability

for education costs.

The terminology contained in 10 USC § 2005 is not

ambiguous, so resort to legislative history is not neces-

sary. However, such history shows the purpose of 2005

as originally enacted and as amended in 1983. In Sen-

ate Report No. 96-850, page 6, we find:

The Committee recommends a change to current

law to reimburse an agreement to serve on active

duty or reimburse the Government for the cost of

education when a person voluntarily withdraws from

the ROTC program.

Under current law, when students in their junior

and senior year drop ROTC voluntarily and in

breach of their contractual agreement, they may be

ordered to active duty as enlisted persons. Accord-

ing to the Department of Defense, “The Services

have been reluctant to invoke this option as it singles

out ROTC students by involuntarily requiring them

to serve on active duty as enlisted members in an

otherwise volunteer force.” Although there may be

merit to the suggestion that such people should be

ordered to active duty, the Committee agrees that if

they are in fact not ordered to active duty that they

tional expenses. (Emphasis added).

At page 7, we find:

The purpose of the legislation is to add a new

Section 2005 to title 10, United States Code, to au-

12

thorize the Secretary concerned to require an appli-

cant for certain advanced education sponsored by

the armed forces to agree in writing to serve on

active duty for a specified period or reimburse the

United States for the cost of the education. Unless a

different period of active duty is prescribed by an-

other law, the period of active duty in an agreement

under this section shall be prescribed by regulation

of the Secretary concerned. (Emphasis added)

If the applicant voluntarily or because of miscon-

duct does not serve on active duty for the specified

period and unless recovery were waived by the Sec-

retary of the military department, or the Secretary

of Transportion, the applicant will reimburse the

United States for that percentage of the cost of the

education that his unfulfilled active duty obligation

is of the total] service obligation incurred as a result

of that education.... (Emphasis added)

Also at page 9 the following is of significance:

It should be noted that this legislative proposal

would create no new substantive rights or obliga-

tions regarding service in the armed forces. This

proposal merely authorizes the Secretaries of the

military departments and the Department of Trans-

portation to enter contracts of the described kind

and allows those contracts to be enforced in the usual

way. The rights and obligations regarding an obli-

gation to serve on active duty would then be deter-

mined under other law and the contracts. (Emphasis

added).

A part of H.R. Rep. 107, 98th Congress, Ist Sess. 214

(1983), is as follows:

The Committee recommends a change to the pro-

visions authorizing recoupment of the cost of finan-

cial assistance if a participant fails to complete the

education requirements specified in the ROTC agree-

ment. The change would authorize the Secretary con-

cerned to order such person to reimburse the United

States for the full cost of assistance he or she re-

= oe

13

ceived plus interest. This provision would not pre-

vent the Secretary from ordering ROTC dropouts to

active duty in enlisted status; rather, it would pro-

vide the Secretary another option from which to

choose in order to best meet the needs of the service.

The quoted portion of the report clearly shows that the

Secretary would be given an option insofar as ROTC

cadets were concerned but not Academy cadets. Before

§ 2005 was enacted, the only recoupment was through ac- -

tive enlisted service. After the 1983 amendment of

§ 2005 by adding (f}, the Secretary had the option to

require reimbursement of education costs from ROTC

cadets without first order’ng active duty. If the Academy

cadets were qualified for active duty when discharged

from the Academy, the cadet had to be ordered to active

duty. This was the situation involving McCrackin.

The U.S. Navy has ordered cadets with worse conduct

than that of McCrackin to serve in the enlisted ranks.

The Fourth Circuit sustained an order of the U.S. Navy

Secretary requiring a cadet to serve on active duty after

he admitted possessing marijuana and sharing it on sev-

eral occasions at the Naval Academy. Wimmer v. Leh-

man, (4th Cir. 1983), 705 F.2d 1402, cert. den., 104

S.Ct. 484, 464 U.S. 992, 78 L.Ed.2d 681 (1983). The

Fourth Circuit stated:

.. . The fact that an individual is discharged from

the Academy, or is found to possess “insufficient apti-

tude to become a commissioned officer in the naval

service,’ does not necessarily mean he could not be

[a] competent seaman. It would be a great waste

for the government to lose its investment in training

what proved to be unsatisfactory midshipmen if it

could not put them in a lesser spot which they were

capable of filling... .

The statutory language pertaining to the U.S. Naval

Academy is found in 10 U.S.C. § 6959 and is effectively

identical to 10 U.S.C. § 9348 applicable to the Air Force

Academy.

14

Another cadet was ordered to active enlisted duty even

though he failed to report drug usage prior to enrolling

in ROTC and forswore the abuse of drugs then and in

the future. Later at a pre-commissioning physical exam-

ination, he admitted having used marijuana, hashish and

and over the counter stimulants. Kolesa v. Lehman,

(N.D., N.Y. 1984) 597 F.Supp. 463. This court cited

Wimmer, supra, in reaching its decision.

What is involved here is really a simple contract. Its

terms are not ambiguous. This was not an enlistment

contract, but rather a contr*°’ to be educated in order to

perform military service. “2 contract was breached by

the cadet, and its plain terms state that he should then

have been called to a term of active duty service in en-

listed status. Only if the term of service were not then

completed would the cadet have been liable for the pay-

ment of education costs.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari to the Fourth Circuit Court of Appeals should

be granted.

Respectfully submitted,

E. WINDELL MCCRACKIN

McCRACKIN, BARNETT & RICHARDSON

1000 2ist Avenue North

Post Office Box 1182

Myrtle Beach, SC 29578

August 8, 1991 (803) 448-8405

BEST AVAILABLE COPY FS

APPENDICES

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 90-1493

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

versus

JAMES F. MCCRACKIN,

Defendant-A ppellant.

Appeal from the United States District Court

for the District of South Carolina, at Florence

Clyde H. Hamilton, District Judge

Argued: January 8, 1991 Decided: April 2, 1991

Before NIEMEYER, Circuit Judge, BUTZNER, Senior

Circuit Judge, and YOUNG, Senior United States Dis-

trict Judge for the District of Maryland, sitting by desig-

nation.

Affirmed by unpublished per curiam opinion.

ARGUED: Earl Windell McCrackin, McCRACKIN,

BARNETT & RICHARDSON, Myrtle Beach, South Car-

olina, for Appellant. John Oldham McGinnis, Deputy

Assistant Attorney General, Civil Division, UNITED

STATES DEPARTMENT OF JUSTICE, Washington,

ae

2a

D.C., for Appellee. ON BRIEF: Stuart M. Gerson, As-

sistant Attorney General, Barbara C. Biddle, Civil Divi-

sion, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C.; E. Bart Daniel, United States Attor-

ney, Henry D. Knight, Jr.

PER CURIAM:

James McCrackin appeals from a summary judgment

entered against him on a claim by the United States to

recoup educational expenses for McCrackin’s nearly three

years of education at the Air Force Academy. Since

McCrackin failed to complete his active duty service com-

mitment because of misconduct, the government may re-

coup its expenses. Consequently, we affirm.

I

James McCrackin enrolled in the United States Air

Force Academy in 1982. As part of his enrollment he

sisned a Statement of Understanding, dated April 15,

1982. In May 1985 the Commandant of the Air Force

Academy charged him with using marijuana, with deny-

ing—while under oath—that he used marijuana, and with

failing to report another cadet’s use of marijuana. Mc-

Crackin subsequently consulted with a member of the

Judge Advocate General’s Corps concerning his rights.

He then tendered his resignation, which he “submitted

with the understanding that a recommendation will be

made to the Secretary of the Air Force that any active-

duty service commitment be waived.”

The Commandant recommended that the Secretary of

the Air Force accept the resignation. The Commandant

also recommended that McCrackin “does not meet the

standards for enlisted status and should be required to

reimburse the United States for the percentage of the cost

of his education as agreed to.” The Secretary, in accord-

ance with 10 U.S.C. § 2005 and McCrackin’s Statement

of Understanding, accepted McCrackin’s resignation and

3a

required him to pay for his educational expenses. The

Statement of Understanding to which the Secretary re-

ferred provided in part:

I avree as a condition of receiving advanced edu-

cation as defined in Title 10, United States Code,

Section 2005:

* * &

(3) that if I voluntarily or because of misconduct,

fail to complete that period of active duty, I will, as

specified by the Air Force, reimburse the United

States for the percentage of my cost of my education

which the period not served on active duty is of the

specified period. ...

In July, the Secretary discharged McCrackin under

honorable conditions. The government subsequently sued

for $41,064.50 in educational expenses; McCrackin coun-

terclaimed for $807.85 in educational expenses withheld

from his pay as a cadet.

IT

McCrackin alleges in this appeal that he is entitled to

complete his service commitment in place of reimbursing

the Air Force for educational expenses.

The Secretary has broad discretion under 10 U.S.C.

§$ 2005 to determine the eligibility of cadets for service

and to require reimbursement. 10 U.S.C. § 2005(a) (3)

provides:

[I]f such a person, voluntarily or because of mis-

conduct, fails to complete the period of active duty

. Such person will reimburse the United States in

an amount that bears the same ratio to the total

cost of advanced education provided such persons as

the unserved portion of the active duty bears to the

total period of active duty such person agreed to

serve.

The Secretary’s determination to waive McCrackin’s serv-

ice commitment under § 2005 due to his misconduct is

4a

a matter of discipline. As such it is entitled to great

deference. See Chappell v. Wallace, 462 U.S. 296, 300-02

(1983); Berry v. Bean, 796 F.2d 7138, 716 (4th Cir.

1986). Because the Air Force determined that Mc-

Crackin’s misconduct disqualified him from enlisted serv-

ice, the Air Force is entitled to recover its expenses under

§ 2005.

McCrackin relies upon Air Force regulations to estab-

lish that he is entitled to complete his service commitment.

Under Air Force Regulation (AFR) 33-3, civilians are

barred from enlistrnent because of arrest for marijuana

usage only when the arrest results in “conviction or ad-

verse adjudication.” AFR 33-3(1-8) (d) (1) (b) (1). Me-

Crackin argues that he was never convicted and that,

therefore, he cannot be excluded from enlisted service.

Regulation 33-3 does not apply to this case, because it

does not govern enlistment of cadets; nor does it purport

to define misconduct under § 2005. The government also

points out that even if AFR 33-3 were applicable, the Sec-

retary could still have found McCrackin ineligible because

the drug charges resulted in an “adverse adjudication”:

the charges were dropped only in return for his resigna-

tion. Moreover, AFR 33-3(1-8) (c) disqualifies a can-

didate of “questionable moral character’; the Secretary

could reasonably determine that McCrackin’s sworn

denial of the use of marijuana and his failure to report

drug abuse of a fellow cadet satisfied that condition. It

is unnecessary to reach these issues, because 10 U.S.C.

§ 2005, the Statement of Understanding, and McCrackin’s

resignation sustain the Secretary’s discretion to require

reimbursement of educational expenses.

Finally, MeCrackin alleges equitable estoppel, because

the counsel provided to him by the Air Force did not

inform him of the consequences of requesting waiver of

his service commitment. The Supreme Court recently

foreclosed estoppel arguments against the government

Lee ee of

-

oa

“where public monies are at stake.” Office of Personnel

Management v. Richmond, 110 S.Ct. 2465, 2473, 2475-76

(1960). The principle is the same when the government

seeks to recover money improvidently expended. United

States v. Fowler, 913 F.2d 1382, 1885-86 (9th Cir. 1990).

Accordingly, the district court’s judgment is affirmed.

AFFIRMED

6a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

FLORENCE DIVISION

C/A No. 4:88-3125-15

UNITED STATES OF AMERICA,

Plaintiff,

vs.

JAMES F. MCCRACKIN,

Defendant.

ORDER

[Filed Apr. 13, 1990] _

The United States of America (government)- seeks

reimbursement of the educational cost required to enroll

James F. McCrackin (McCrackin) at the United States

Air Force Academy (Academy) for three years because

of the administrative determination that McCrackin was

ineligible to fulfill his active duty service commitment

(ADSC) upon his resignation from the Academy on May

16, 1985. The matter is before the court upon cross-

motions for summary judgment. Rule 56, Fed. R. Civ.

Proc. The court has concluded that the government’s mo-

tion for summary judgment should be granted.

The instant action arises out of McCrackin’s appoint-

ment to the Academy in 1982. As a prerequisite to ad-

mission to the Academy, McCrackin signed a “Statement

of Understanding,” which provided:

i

&

Fe

&

é

is

F

%

®

3

Ta

STATEMENT OF UNDERSTANDING

I agree as a condition of receiving advanced edu-

cation as defined in Title 10, United States Code,

Section 2005:

(1) to complete the educational requirements

specified in this agreement and to serve on

active duty for the period specified in this

agreement, and

(2) that if I fail to complete the specific edu-

cational requirements, I will serve on active

duty for the specified period, and

(3) that if I voluntarily or because of miscon-

duct, fail to complete that period of active

duty, I will, as specified by the Air Force,

reimburse the United States for the percent-

age of the cost of my education which the

period not served on active duty is of the

specified period, and

(4) that only the Secretary of the Air Force or

this designee may excuse me from my ob-

ligations to serve on active duty for the

period specified in this agreement.

Defendant’s Motion for Summary Judgment (Defendant’s

Motion), Exhibit 2. Under the terms of the Statement

of Understanding, if a cadet voluntarily or because of

misconduct failed to complete his or her ADSC, the Air

Force could require reimbursement of education costs

incurred by that cadet.

On May 9, 1985, McCrackin received a letter from

Brigadier General Marcus A. Anderson, the Commandant

of Cadets at the Academy. In this letter, General Ander-

son accused McCrackin of using marijuana, maintaining

under oath that he had not used marijuana, and failing

to report a fellow cadet’s use of marijuana as required

by the Academy Honor Code. McCrackin was also in-

8a

formed that action would be instituted against him “with

a view of affecting [his] separation from cadet status.”

Defendant’s Motion, Exhibit 11.

Rather than contest disenrollment under Section BE,

Air Force Regulation (AFR) 538-3, McCrackin tendered

his resignation from appointment to the Academy on

May 16, 1985, after consultation with appointed counsel,

Captain Scott W. Singer. McCrackin tendered his resig-

nation with the “understanding that a recommendation

will be made to the Secretary of the Air Force that [his]

active-duty service commitment be waived.” Defendant’s

Motion, Exhibit 4. MceCrackin executed a second “State-

ment of Understanding” on May 21, 1985, in which he

requested a delay in his call to active duty to permit

completion of undergraduate degree requirements at a

civilian college or university. Defendant’s Motion, Ex-

hibit 5. McCrackin was also granted testimonial immu-

nity to secure his truthful testimony in a military justice

action involving Cadet Third Class Andrew F. Smith.

Defendant’s Motion, Exhibit 17. Apparently, McCrackin

was also promised an honorable discharge in exchange for

his cooperation.

On May 23, 1985, Lieutenant General Winfield W.

Scott. Jr., Academy Superintendent, recommended to the

Secretary of the Air Force (Secretary) that Cadet Mc-

Crackin be discharged under honorable conditions and

that his ADSC be waived. Because McCrackin did not

meet the standards for enlisted status, according to Gen-

eral Scott, he also recommended that McCrackin be re-

quired to reimburse the government for the cost of his

three years at the Academy. Defendant’s Motion, Exhibit

12. The Secretary accepted McCrackin’s resignation in

July 1985. He also directed that McCrackin “reimburse

educational costs in accordance with Title 10, United

States Code, Section 2005 and the Statement of Under-

standing [McCrackin] signed on April 15, 1982.” De

fendant’s Motion, Exhibit 13. On October 4, 1985, Me-

9a

Crackin’s indebtedness for three years at the Academy

was calculated at $41,064.50. The Air Force subsequently

deducted $807.85 from McCrackin’s final pay and cred-

ited this amount against the government’s claim for re

imbursement of educational costs.

The government brings the present action seeking re-

imbursement for $41,064.50. McCrackin has counter-

claimed for the amount deducted from his pay, $807.85.

The parties have filed cross-motions for summary judg-

ment. In his motion for summary judgment, McCrackin

alleges that the terms of his appointment contract require

the Secretary to order him to active duty prior to requir-

ing reimbursement. McCrackin also contends the Secre-

tary has waived the defendant’s ADSC. He also argues

that the Secretary should be estopped from collecting

educational costs, allegedly because of advice by counsel

which caused him to take action to his detriment. Spe-

| cifically, MeCrackin alleges that counsel did not advise

| him of the consequences of waiving his ADSC, and, in

addition, that Captain Singer should not have been ap-

pointed as his attorney.’ McCrackin also contends that

reimbursement should not be required because he was

eligible for enlistment at the time of the Secretary’s

| determination. Finally, McCrackin urges the court to ex-

clude the Declarations of Lieutenant Colonel George J.

Guyer (Guyer), November 30, 1989, and Captain Scott

W. Singer (Singer), December 7, 1989, because they are

not “sworn to” as allegedly required by Rule 56(e), Fed.

R. Civ. Proc., and also contends that a letter of May 16,

1 McCrackin’s contention that Captain Singer should not have

been appointed as counsel is summarily rejected by the court. Al-

though McCrackin objected to the appointments of Captain Babinski

as his counsel, he never objected to Captain Singer’s subsequent

: appointment at any stage of the administrative proceedings. Also,

: Captain Singer did not serve as “hearing officer” in any Section E

disenrollment proceeding because no such hearing ever occurred in

McCrackin’s case. Rather, McCrackin resigned and agreed to co-

operate with Academy officials in lieu of contesting the allegations.

10a

1985, produced by the government, should be excluded on

grounds that it is not properly authenticated.

In support of its cross-motion for summary judgment,

the government asserts that both the controlling statute,

10 U.S.C. § 2005(a) (3), and the Statement of Under-

standing signed by McCrackin on April 15, 1982, require

reimbursement of education costs. The government also

contends that considerable deference should be accorded

to the Secretary’s policy to require reimbursement only

where a cadet fails to complete his or her ADSC volun-

tarily or because of misconduct. The Secretary’s policy to

require reimbursement when he determines that cadets

are not qualified for active duty, according to the govern-

ment, is also consistent with the intent of Congress when

§ 2005 was added to Title 10 in 1980. The government

also maintains that equitable estoppel is not applicable

under the present facts and circumstances, noting that

the Secretary would have ultimately determined Mc-

Crackin was ineligible to fulfill his ADSC, and thus re-

quired reimbursement, even if McCrackin had not re

signed but rather had been separated from cadet status

under Section E, AFR 538-3. Additionally, the govern-

ment argues that a government agency is not equitably

estopped absent a. showing of “affirmative misconduct.”

As a threshold matter, the court must address Mc-

Crackin’s contentions under Rule 56(e), Fed. R. Civ.

Proc. That provision requires that “[s]upporting and

opposing affidavits {] be made on personal knowledge, []

set forth such facts as would be admissible in evidence,

and [] show affirmatively that the affiant is competent

to testify to the matters stated therein.” The following

paragraph is contained in both declarations:

I declare under the penalty of perjury under the

laws of the United States of America that the fore-

going is true and correct.

Declaration of Lieutenant Colonel George J. Guyer, para.

10, November 30, 1989; Declaration of Scott W. Singer,

pin

lla

para. 5, December 7, 1989. The court concludes that the

form of these declarations complies with both the letter

and spirit of Rule 56(e). See 28 U.S.C. $1746. Ad-

dressing the issue of the May 16, 1985, letter, it suffices

to say that McCrackin has produced the identical letter

as an exhibit to his motion. In any event, the declara-

tions of Guyer and Singer, as well as the contested letter,

are not material to the court’s determination in this

matter.

The statutory authority for the Secretary’s decision

to require reimbursement from McCrackin is found in

10 U.S.C. § 2005, which provides:

§ 2005. Advanced education assistance: active duty

agreement ; reimbursement requirements

(a) The Secretary concerned may require, as a

condition to the Secretary providing advanced edu-

cation assistance to any person, that such person

enter into a written agreement with the Secretary

concerned under the terms of which such person shall

agree—

(1) to complete the educational requirements spec-

ified in the agreement, and to serve on active duty

for a period specified in the agreement;

(2) that if such person fails to complete the edu-

cation requirements specified in the agreement, such

person will serve on active duty for a period speci-

fied in the agreement;

(3) that if such person, voluntarily or because of

misconduct, fails to complete the period of active

duty specified in the agreement, such person will re-

f imburse the United States in an amount that bears

the same ratio to the total cost of advanced educa-

tion provided such person as the unserved portion of

active duty bears to the total period of active duty

such person agreed to serve; and

12a

(4) to such other terms and conditions as the Sec-

retary concerned may prescribe to protect the in-

terest of the United States.

(c) Subject to the provisions of subsection (d) of

this section, the obligation to reimburse the United

States under an agreement described in subsection

(a) of this section is, for all purposes, a debt owing

the United States.’

In addition to express statutory authorization to re-

quire reimbursement, § 2005 also authorizes the Secre-

tary to have each cadet sign a Statement of Understand-

ing, which includes, among other things, an ADSC obli-

gation if a cadet fails to complete the specific educational

requirements, and the reimbursement obligation if a

cadet, voluntarily or because of misconduct, fails to com-

plete his or her ADSC. Defendant’s Motion, Exhibit 2.

Apparently, the reimbursement provision of AFR 53-3,

which is congressionally authorized in § 2005, is triggered

in cases where, as here, the nature of the cadet’s miscon-

duct acts as a bar to enlistment and renders him ineligi-

ble to serve on active duty. The Office of the Secretary

considers the facts in each case to determine whether a

2 Section 2005 was amended in 1983, and under subsection (f) (1),

“the Secretary will have the option to order [R.O.T.C. Cadets] to

reimburse the United States in the manner provided for in clause

(3) of such subsection without the Secretary first ordering such

person to active duty as provided for under clause (2)... .” By

its express terms, however, this provision applies only to R.O.T.C.

Cadets, and not Cadets enrolled at United States Military Academies.

Thus, subsection (a)(3) remains the operative provision where an

academy cadet voluntarily or because of misconduct fails to fulfill

his or her ADSC. Because the court has concluded that the plain and

unambiguous language of subsection (a}(3) requires reimburse-

ment under the present facts and circumstances, the court need not

reach McCrackin’s argument that the addition of the 1983 amend-

ment demonstrates that the Secretary cannot require reimbursement

in the case of academy cadets. Indeed, the amendment itself is not

even addressed to agreements executed by academy cadets.

SESE

13a

cadet is qualified to serve on active duty as an enlisted

member.*

The Secretary’s policy to require reimbursement when

he or she reasonably believes a separated cadet is in-

eligible to fulfill the ADSC is also consistent with the

intent of Congress when § 2005 was added to Title 10 in

1980, See S. Rep. No. 96-850, 96th Cong., 2d Sess.

(1980) (Senate Report). The legislative history states

that, before the enactment of § 2005, the Secretary lacked

the authority to recover, in whole or in part, the

expense of the education received by that person who

fails to complete his course of education or his active

duty obligation. This has led to situations in which

the United States does not receive a fair return on

its investment....

Id. at 8. The report also reveals the purpose behind en-

actment of § 2005:

The purpose of the legislation is to add a new

Section 2005 . . . to authorize the Secretary con-

cerned to require an applicant for certain advanced

education by the armed forces to agree in writing to

serve on active duty for a specified period or reim-

burse the United States for the cost of the educa-

Cem...

If the applicant voluntarily or because of miscon-

duct does not serve on active duty for the specified

period and unless recovery were waived by the Sec-

§ Significantly, AFR 53-3(C3)8.a.(1)(d) provides that each “sep-

arating cadet may submit a written request stating the reasons

active duty commitment, and/or reinstatement, should be waived.

This request, together with the recommendation of the Superin-

tendant is forwarded to the Secretary of the Air Force for final ac-

tion consistent with the best interests of the Force.” MeCrackin

has not demonstrated that he availed himself of this administrative

opportunity to be heard, and thus arguably has waived his right to

subsequently attack the Secretary’s ultimate determination.

l4a

retary ... the applicant will reimburse the United

States for that percentage of the cost of the educa-

tion that his unfulfilled active duty obligation is of

the total service obligation incurred as a result of

that education. ...

Id. at 7. Accordingly, it is clear that the Secretary’s

policy is consistent with § 2005 and the legislative his-

tory behind that provision.

It is also universally recognized, as noted by the plain-

tiff, that considerable deference is to be accorded to the

military to resolve ‘uniquely military matters,” such as

the type of personnel decisions at issue presently. Cf.

Chappell v. Wallace, 462 U.S. 296 (1983); Gilligan v.

Morgan, 413 U.S. 1 (1973); Orloff v. Willoughby, 345

U.S. 83 (1945). This policy is similar to the deference

accorded administrative determinations generally. As

stated by the Supreme Court:

The Secretary’s interpretation may not be the only

one permitted by the language of the [regulations],

but it is quite clearly a reasonable interpretation ;

courts must therefore respect it.

Udall v. Tallman, 380 U.S. 1, 4 (1964). Thus, assuming

the Secretary’s determination is a reasonable interpre

tation of the applicable regulations, this court is pre-

cluded from reevaluating the issue of whether McCrackin

was eligible for enlistment at the time of the Secretary’s

determination.

AFR 30-2, para. 3-2, promulgated on June 22, 1981,

and in effect when McCrackin was discharged, provided

Air Force policy on illegal drug use:

The Air Force objective is to maintain standards of

behavior, performance, and discipline necessary for

completing the mission. The illegal or improper use

of drugs by Air Force members can seriously dam-

age physical and mental] health; may jeopardize their

l5a

safety and the safety of others; and can lead to

criminal prosecution and discharge under other than

honorable conditions. Drug abuse is not compatible

with Air Force standards. .. .

“Drug abuse” is defined in the same regulation as “[a]ny

illegal or improper use or possession, sale, transfer, or

introduction on a military installation of drugs. .. .” Jd.,

para, 3-2(c) (5).

In the present case, the Secretary’s determination that

McCrackin was ineligible to fulfill his ADSC was a rea-

sonable discretionary decision which will not be disturbed

by this court. The allegations against McCrackin, which

included charges of illegal drug use and lying under oath,

were not contested by McCrackin under the procedures

governing disenrollment proceedings under Section E,

AFR 53-3. Rather, he chose to resign and not contest the

allegations. For purposes of the Secretary’s decision,

however, these allegations were necessarily the basis

from which any decision as to McCrackin’s fitness to ful-

fill his ADSC had to be evaluated. Under the facts and

circumstances of the present case, the Secretary’s decision

to elect reimbursement. is supported by § 2005, its legisla-

tive history, and regulations promulgated pursuant to

4 McCrackin’s reliance on regulations which govern enlistment of

recruits with no previous military experience has no application to

cadets who are disenrolled or voluntarily separated from their

Academy appointment because of misconduct. First, the premise of

McCrackin’s argument, that a separated cadet is entitled to the same

treatment as an enlisted recruit, does not necessarily follow from the

practical considerations involved in deciding whether a separated

cadet should be permitted to serve his or her ADSC. For instance,

in addition to McCrackin’s alleged marijuana use, the Secretary

also was constrained to consider his alleged lying under oath and

refusal to report illegal activity by a fellow cadet. All of these

considerations are relevant to the determination of whether Mc-

Crackin was fit for enlisted service. Indeed, arguably the allega-

tions going to McCrackin’s truthfulness and veracity are more rele-

vant than his alleged drug use. Under these circumstances, a blind

application of “waiver” rules for new recruits is not appropriate.

a

l6a

that provision. Accordingly, McCrackin’s argument that

reimbursement is not authorized under these circum-

stances must be rejected.°

Notwithstanding the clear and unambiguous applica-

tion of § 2005 and the applicable regulations to the pres-

ent case, McCrackin nonethe’ess argues that the govern-

ment should be equitab!y estopped from collecting the

cost of educating McCrackin for three years at the

Academy. Initially, as noted by the government, it would

be erroneous to conclude that McCrackin’s counsel, Cap-

tain Singer, was vested with authority sufficient to usurp

the statutory authority of the Secretary to enforce agree-

ments entered into pursuant to § 2005. See United States

v. Vonderau, 8387 F.2d 1540 (11th Cir. 1988) (govern-

ment not estopped from collecting indebtedness because of

V.A. employee’s oral assurances); United States v.

Killough, 848 F.2d 1523 (11th Cir. 1988) (government

not estopped from bringing civil action under False

Claims Act despite alleged promise by Assistant United

States Attorney to take no further action if individuals

pled guilty and fully cooperated). In any event, the doc-

trine of equitable estoppel is only available where the

allegedly injured party is ignorant of the true facts.

Preferred Risk Mutual Ins. Co. v. Thomas, 372 F.2d 227,

230 (4th Cir. 1967); Lavin v. Marsh, 644 F.2d 1378,

1382 (9th Cir. 1981). Application of equitable estoppel

to restrain administrative action against an individual

also requires a showing of “affirmative misconduct’ on

the part of the agency. Lavin, 644 F.2d at 1382.

5 McCrackin’s argument that the Secretary somehow “waived” his

right to seek reimbursement must also be rejected by the court.

In short, the Secretary’s decision to seek reimbursement in lieu of

ordering an allegedly unfit cadet to complete his ADSC constituted

an election of alternatives under the statute and Statement of

Understanding, and not a waiver of either statutory option. See

Senate Report, supra p. 9, at 7.

17a

Neither of these prerequisites to the application of

estoppel is present here. As an initial matter, McCrackin

can reasonably be charged with the knowledge of the

Statement of Understanding he signed April 15, 1982.

To hold otherwise would render such agreements unen-

forceable whenever a party has subjectively failed to re-

member his obligations thereunder. Moreover, Mc-

Crackin’s allegation that Captain Singer failed to advise

him of the consequences of waiving his ADSC falls far

short of establishing ‘affirmative misconduct” on the part

of the Air Force. In any event, the Secretary had the

authority under the present circumstances to seek reim-

bursement—regardless of any purported “election of op-

tions” McCrackin intended to make after his resignation.

Put simply, the doctrine of equitable estoppel has no ap-

plication in the present case.

McCrackin received the benefit of nearly three years

of college education at the taxpayers’ expense. The Sec-

retary’s determination to seek reimbursement due to Mc-

Crackin’s failure to complete his ADSC is well supported

by § 2005, its legislative history,® and the applicable regu-

lations. Accordingly, the court is constrained to grant the

government’s motion for summary judgment. Defend-

ant’s motion for summary judgment is denied. Rule 56,

Fed. R. Civ. Proe.

The Clerk is directed to enter judgment in favor of

the plaintiff, United States of America, and against the

defendant, James F. McCrackin, in the amount of forty-

one thousand sixty-four and 50/100 ($41,064.50) Dol-

lars.’ The Clerk is also directed to enter judgment in

favor of the plaintiff, United States of America, and

6 The Senate Report lists several instances where the government

failed to receive a fair return on its investment prior to the en-

actment of § 2005. See Senate Report, supra p. 9, at 8.

7 The total cost of McCrackin’s Academy education is not disputed.

See Declaration of Ronald L. Latreille, February 22, 1990, para. 2.

iia a eee

18a

against the defendant, James F.. McCrackin, on the de-

fendant’s counterclaim.

IT IS SO ORDERED at Columbia, South Carolina,

this 13th day of April, 1990.

/s/ Clyde H. Hamilton

CLYDE H, HAMILTON

United States District Judge

19a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 90-1493

Filed May 14, 1991

UNITED STATES OF AMERICA,

Plaintiff-A ppellee

JAMES F’, MCCRACKIN

Defendant-Appellant

On Petition for Rehearing with

Suggestion for Rehearing In Banc

The appellant’s petition for rehearing and suggestion

for rehearing in banc were submitted to this Court. As

no member of this Court or the panel requested a poll on

the suggestion for rehearing in banc, and

As the panel considered the petition for rehearing and

is of the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and

suggestion for rehearing in banc are denied.

Entered at the direction of Judge Butzner with the

concurrence of Judge Niemeyer and Judge Young, Dis-

trict Judge, sitting by designation.

For the Court,

/3/ John M. Greacen

Clerk

20a

APPENDIX D

Title 10 U.S.C.

§ 2005. Advanced education assistance: active duty

agreement; reimbursement requirements

(a) The Secretary concerned may require, as a con-

dition to the Secretary providing advanced-education as-

sistance to any person, that such person enter into a

written agreement with the Secretary concerned under

the terms of which such person shall agree—

(1) to complete the educational requirements spe-

cified in the agreement and to serve on active duty

for a period specified in the agreement;

(2) that if such person fails to complete the edu-

cation requirements specified in the agreement, such

person will serve on active duty for a period speci-

fied in the agreement;

(3) that if such person, voluntarily or hecause of

misconduct, fails to complete the period of active

duty specified in the agreement, such person will

reimburse the United States in an amount that bears

the same ratio to the total cost of advanced education

provided such person as the unserved portion of ac-

tive duty bears to the total period of active duty

such person agreed to serve; and

(4) to such other trems and conditions as the Sec-

retary concerned may prescribe to protect the inter-

est of the United States.

(b) The Secretary concerned shall determine the pe

riod of active duty to be served by any person for ad-

vanced education assistance to be provided such person

by an armed force, except that if the period of active

duty required to be served is specified under another

provision of law with respect to the advanced education

assistance to be provided, the period specified in the

agreement referred to in subsection (a) shall be the same

as the period specified in such other provision of law.

* * * *

2la

(f) The Secretary concerned shall require, as a con-

dition to the Secretary providing financial assistance

under section 2107 or 2107a of this title to any person,

that such person enter into an agreement described in

subsection (a). In addition to the requirements of clauses

(1) through (4) of such subsection, any agreement re-

quired by this subsection shall provide—

(1) that if such person fails to complete the edu-

cation requirements specified in the agreement, the

Secretary will have the option to order such person

to reimburse the United States in the manner pro-

vided for in clause (3) of such subsection without

the Secretary first ordering such person to active

duty as provided for under clause (2) of such sub-

section and sections 2107(f) and 2107a(f) of this

title; and

(2) that any amount owed by such person to the

United States under such agreement shall bear inter-

est at the rate equal to the highest rate being paid by

the United States on the day on which the reimburse-

ment is determined to be due for securities having

maturities of ninety days or less and shall accrue

from the day on which the member is first notified of

the amount due to the United States as a reimburse-

ment under this section.

* * * *

§ 9348. Cadets: agreement to serve as officer

(a) Each cadet shall sign an agreement with respect

to the cadet’s length of service in the armed forces. The

agreement shall provide that the cadet agrees to the fol-

lowing:

(1) That the cadet will complete the course of in-

struction at the Academy.

ie

22a

(2) That upon graduation from the Academy the

cadet—

(A) will accept an appointment, if tendered,

as a commissioned officer of the Regular Air

Force; and

(B) will serve on active duty for at least five

years immediately after such appointment.

(3) That if an appointment described in para-

graph (2) is not tendered or if the cadet is permitted

to resign as a regular officer before completion of the

commissioned service obligation of the cadet, the

cadet—

(A) will accept an appointment as a commis-

sioned officer as a Reserve in the Air Force for

service in the Air Force Reserve; and

(B) will remain in that reserve component

until completion of the commissioned service obli-

gation of the cadet.

(b) (1) The Secretary of the Air Force may transfer

to the Air Force Reserve, and may order to active duty

for such period of time as the Secretary prescribes (but

not to exceed four years), a cadet who breaches an agree-

ment under subsection (a). The period of time for which

a cadet is ordered to active duty under this paragraph

may be determined without regard to section 651(a) of

this title.

(2) A cadet who is transferred to the Air Force Re-

serce under paragraph (1) shall be transferred in an

appropriate enlisted grade or rating, as determined by

the Secretary.

(3) For the purposes of paragraph (1), a cadet shall

be considered to have breached an agreement under sub-

section (a) if the cadet is separated from the Academy

under circumstances which the Secretary determines con-

VX

23a

stitute a breach by the cadet of the cadet’s agreement to

complete the course of instruction at the Academy and ac-

cept an appointment as a commissioned officer upon grad-

uation from the Academy.

(c) The Secretary of the Air Force shali prescribe

regulations to carry out this section. Those regulations

shall include—

(1) standards for determining what constitutes,

for the purpose of subsection (b), a breach of an

agreement under subsection (a) ;

(2) procedures for determining whether such a

breach has occurred; and

(3) standards for determining the period of time

for which a person may be ordered to serve on ac-

tive duty under subsection (b).

* * > *

24a

APPENDIX E

AIR FORCE REGULATION 33-3

Chapter 1

QUALIFICATIONS FOR ENLISTMENT

IN THE REGULAR AIR FORCE

1-1. Explanation of Terms. This paragraph explains

terms and abbreviations used in this directive. Others

not explained here are used according to AFR 11-1, vol-

ume 1 and AFR 11-2.

* * * *

‘. Conviction or Adverse Adjudication. A conviction is

the act of finding a person guilty of a crime, offense, or

other violation of the law by a court, judge, or other

authorized adjudication authority and includes fines and

forfeiture of bond in lieu of trial. An adverse adjudica-

tion (adult or juvenile) is a finding, decision, sentence, or

judgment, other than unconditionally dropped, dismissed,

or acquitted. If the adjudicating authority places a con-

dition or restraint that leads to dismissal, dropped

charges, or acquittal, the adjudication is adverse. Suspen-

sion of sentence, pardon, not processed, or dismissal after

compliance with imposed conditions is adverse adjudica-

tion. If a person is charged and convicted with violating

any federal (including Uniform Code of Military Justice

(UCMJ) offenses), state, or municipal law or ordinance,

that conviction is considered an adverse adjudication.

* * * *

1-8. Waivers of Enlistment Eligibility Criteria:

* * * *

ce. Moral Disqualification. Applicants convicted or ad-

versely adjudicated of offenses as indicated in table 1-3

are ineligible to enlist without waiver. On applicant’s

request, recruiter submits a documented application for

waiver to the approval authority indicated.

25a

d. Illegal Drug Usage. Applicants who are drug

abusers or diagnosed as alcoholics are not eligible for

enlistment.

(1) Drugs:

(a) Narcotics and Dangerous Dirngs. Applicants

are not eligible for enlistment if they have ever:

1. Been arrested for possession, use, sale, or

transfer of narcotics or dangerous drugs that resulted in

a conviction or adverse adjudication.

2. Used lysergic acid diethylamide (LSD),

phencyclidine (PCP-“Angel Dust”) or any other halluc-

inogen,

8. Used narcotics, cocaine, or dangerous drugs

illegally, or

4. Ever been a supplier of narcotics or dan-

gerous drugs.

(b) Marijuana. Applicants are not eligible for

enlistment if they:

1. Have ever been arrested for possession, sale,

use or transfer of marijuana which resulted in a con-

viction or adverse adjudication.

2. Are psychologically dependent or chronic

users of marijuana, or

8. Have been a supplier of marijuana.

(2) Waiver policy concerning drug abuse is out-

lined in AFR 30-2,

= * * *

26a

Figure 1-1

UNIFORM GUIDE LIST FOR TYPICAL OFFENSES

A. Minor Traffic Offenses (see note) :

Blocking or retarding traffic.

Careless driving.

Crossing yellow line, driving left of center.

Disobeying traffic lights, signs, or signals.

Driving on shoulder.

Driving uninsured vehicle.

Driving with blocked vision.

Driving with expired plates or without plates.

Driving without license or with suspended or revoked

license.

Driving without registration or with improper regis-

tration.

Driving wrong way on one-way street.

Failure to comply with officer’s directions.

Failure to have vehicle under control.

Failure to keep to right or in line.

Failure to signal.

Failure to stop for or yield to pedestrian.

Failure to yield right-of-way.

Faulty equipment (defective exhaust, horn, lights, mir-

ror, muffler, signal device, steering device, tailpipe, or

windshield wipers).

Following too closely.

Improper backing: backing into intersection or high-

way; backing on expressway; backing over crosswalk.

Improper blowing of horn.

Improper parking restricted area, fire hydrant, double

parking, (excluding overtime parking).

tee

27a

Improper passing; passing on right, in no-passing zone;

passing parked school bus, pedestrian in crosswalk

(when not treated as reckless driving).

Improper turn.

Invalid or unofficial inspection sticker; failure to dis-

play inspection sticker.

Leaving key in ignition.

License plates improperly displayed or not displayed.

Operating overloaded vehicle.

Racing, dragging, contest for speed (when not treated

as reckless driving).

Reckless driving (fine under $100).

Speeding (when not treated as reckless driving).

Spinning wheels; improper start, zigzagging or weav-

ing in traffic (when not treated as reckless driving).

NOTE: The above list is a guide; consider as minor,

offenses of a similar nature and traffic 6ffenses treated

as a minor by local law enforcement agencies.

B. Minor Misdmeanor Offenses (see note) :

Abusive language under circumstances to provoke

breach of peace.

Carrying concealed weapon (other than firearm) ; pos-

session of brass knuckles.

Curfew violation.

Committing nuisance.

Damaging road signs.

Discharging firearm through carelessness.

Discharging firearm within municipal limits.

Disobeying summons.

Disorderly conduct; creating disturbance, boisterous

conduct.

}

a

28a

Disturbing peace.

Drinking liquor on train (other than club bar).

Drunk in public; drunk and disorderly.

Dumping refuse near highway, littering.

Fighting, participating in a brawl.

Fornication.

Illegal betting or gambling: operating illegal handbook,

raffle, lottery, punch board, watching cockfight.

Juvenile noncriminal misconduct: beyond parental con-

trol, incorrigible, runaway, truant, or wayward.

Killing domestic animal.

Liquor: unlawful manufacture, sale, or possession, or

consumption in public place.

Loitering.

Malicious mischief: painting water tower, throwing

water-filled balloons, throwing rocks on highway, throw-

ing missiles at athletic contests, or throwing objects at

vehicle.

Possession of indecent publications or pictures.

Purchase, possession, or consumption of alcoholic bev-

erages by minor.

Removing property under lien.

Removing property from public grounds.

Shooting from highway.

Shooting on public road.

Simple assault.

Trespass on property.

Unlawful assembly.

Vagrancy.

Vandalism: injuring or defacing public property or

property of another; shooting out streetlights.

!

29a

Violation of fireworks law.

Violation of fish and game laws.

NOTE: The above list is a guide; consider offenses of a

similar nature as minor. In doubtful cases, apply the

following rule: if the maximum confinement under_local

law is 4 months or less, treat the offense as minor.

C. Nonminor Misdemeanor Offenses (see note):

Adultery.

Assault consummated by battery.

Breaking and entering vehicle.

Check, worthless, making or uttering, with intent to de-

fraud or deceive $100 or less.

Conspiring to commit misdemeanor.

Contempt of Court (includes nonpayment of child sup-

port or alimony required by court order).

Contributing to delinquency of minor.

Desecration of grave.

Driving while drugged or intoxicated.

Failure to stop and render aid after accident.

Indecent exposure.

Indecent, insulting, or obscene language communicated

directly or by telephone.

Leaving scene of accident (hit and run).

Looting.

Negligent homicide.

Petty larceny (value $100 or less) ; stealing hub caps,

shoplifting.

Reckless driving (fine of $100 or over).

Resisting arrest.

Selling or leasing weapons to minor.

30a

Slander.

Stolen property, knowingly receiving (value $100 or

less).

Unlawful carrying of firearms; carrying concealed

firearm.

Unlawful entry.

Unlawful use of long distance telephone lines.

Use of telephone to abuse annoy, harass, threaten, or

torment another.

Willfully discharging firearms so as to endanger life;

shooting in public place. Wrongful appropriation of

motor vehicle; joyriding; driving motor vehicle without

owner’s consent (if intent is to permanently deprive

owner of vehicle, consider as grand larceny under (D

Below).

NOTE: The above list is a guide; consider offenses of

comparable seriousness as nonminor misdemeanors. In

doubtful cases, apply the following rule: If the maximum

confinement under local law exceeds 4 months but not

1 year, treat the offense as a nonminor misdemeanor.

D. Felonies (see note):

Aggravated assault; assault with dangerous weapon;

assault intentionally inflicting great bodily harm; assault

with intent to commit felony.

Arson.

Attempt to commit felony.

Breaking and entering with intent to commit felony.

Bribery.

Burglary.

Carnal knowledge of female under 16.

Check, worthless, making or uttering, with intent to

defraud or deceive (over $100).

Conspiring to commit felony.

3la

Criminal libel.

Draft evasion.

Extortion.

Forgery; knowingly uttering or passing forged instru-

ment.

Grand larceny ; embezzlement (value over $100).

Housebreaking.

Indecent acts or liberties with child under 16.

Indecent assault.

Kidnapping abduction.

Mail matter: abstratcing, destroying, obstructing, open-

ing, secreting, stealing, or taking.

Mails: depositing obscene or indecent matter.

Maiming; disfiguring.

Manslaughter.

Murder.

Narcotics or habit forming drugs; wrongful possession,

use or sale.

Pandering.

Perjury.

Rape.

Riot.

Robbery.

Sedition; soliciting to commit sedition.

Sodomy.

Stolen property, knowingly receiving (value over

$100).

NOTE: The above list is a guide; consider offenses of

comparable seriousness as felonies. In doubtful cases,

apply the following rule: If maximum confinement under

local law exceeds 1 year, treat the offense as a felony.

or

6

32a

TABLE 1-1

CONDITIONS WHICH MAKE APPLICANT

INELIGIBLE TO ENLIST

STATUS

Applicants are ineligible when one of the following

conditions exists:

Intoxicated or under the influence of alcohol or drugs

at any time during enlistment processing.

Has questionable moral character; history of anti-

social behavior, alcoholism, sexual perversion, homo-

sexual activity, frequent difficulties with law enforce-

ment agencies, history of psychotic disorders.

Has moral disqualification listed in table 1-3, re-

ceived a presidential pardon for draft evasion, or has

been involved with narcotics, marijuana, or other

dangerous drugs (see note 1).

Enlistment is not clearly consistent with interest of

national security (AFR 205-32).

Conscientious objector or person with personal be-

liefs or convictions which preclude’ unrestricted

assignments.

Under restraint imposed by civil or criminal court or

subject of a subpoena ordering attendance on some

specified future date (includes those released from

restraint on the condition of enlistment). See para-

graph 1-lw for definition of restraint.

Civil or criminal charges filed or pending (includes

those released from charges on condition of enlist-

ment).

Receiving disability compensation from any federal

or other agency.

Applicant has disqualifying physical impairment,

disease, or medical condition (including history of

psychosis).

83a

10 On AD or ADT with any branch or component of

the US Armed Forces.

11 Has any dependents under age 18 and without a

spouse in household, or who is married to a military

member or has a common-law spouse (see note 1).

12 Has more than one dependent under age 18 and not

entitled to enlistment pay grade E-4 or above (see

note 1).

13 Separated from active duty with the Regular Air

Force for a period less than 93 calendar days.

14 Separated with Reenlistment Eligibility (RE) code

that bars reenlistment (see notes 1 and 2).

15 Separated as a result of having been nonselected for

reenlistment under the Selection Reenlistment Pro-

gram (SRP) or having noncommissioned officer

(NCO) status denied or vacated.

16 Separated while undergoing a period of observation

on the Control Roster or while serving punishment

(suspended or unsuspended) pursuant to Article 15,

Uniform Code of Military Justice (UCMJ).

17 Separated with other than an Honorable Discharge

Certificate (General Discharge), or with a DD Form

214 that reflects ‘“‘other than honorable” (see note 2).

18 Separated for failure to meet acceptable standards of

conduct or duty performance, unsuitability, miscon-

duct, personal abuse of drugs, for the good of the

service, national security, or conviction by court-

martial (see note 2).

19 Separated because of physical disability or medical

reasons (see note 1).

20 Separated in pay grade E-3 or lower after 6 months

or more active duty (see note 1).

21 Discharged before completing 6 months active duty

(see note 1). EXCEPTION: Members separated for

failure to complete OTS or for underage.

——

34a

22 Separated and charged with 5 or more days time lost

(see note 1). |

23 Separated with 16 or more years total active federal

miliary service (TAFMS) (see note 1).

24 Retired, eligible for retire? pay under any provision

of law, or retired and serving on extended active

duty (EAD) in a Reserve status.

25 Separated from a Regular component of the armed

forces 5 or more years (adjust date of separation by

years of satisfactory service with ANG or USAFR).

26 Separated from active duty in pay grade E-4 or

lower after 6 years or more active duty.

27 Separated with 5 years or more active service in an-

other branch of the armed forces (see note 3).

28 Has held a commission as an officer or warrant offi-

cer in any Regular or Reserve component except as

provided in paragraph 3-7 (see note 4).

29 Separated with 6 or more months active duty in a

Regular component of the armed forces and is not a

US Citizen.

NOTES:

1. For exceptions, see paragraph 1-8.

2. Applicants with a General Discharge and whose RE code has

been ungraded to “1” are exceptions to this rule and may be con-

sidered for enlistment if not otherwise ineligible by this table. Be-

fore processing applicants claiming this status, USAFRS will verify

eligibility with HQ AFMPC/MPCMAE.

3. Exception is considered for applicants who have served satis-

factorily with the ANG or USAFR for 2 preceding continuous years

and posses a critical AFSC and enlist for directed duty assignment.

See paragraph 1-1x for definition of “satisfactory service.”

4. Warrant officers are eligible to apply for an Air Force com-

missioning or appointment program; however, if he or she fails to

complete the program, enlistee is ineligible to revert to entisted

status in the Air Force. Warrant officers are not eligible for the

College Senior Engineering Program (CSEP).

* * * a

35a

TABLE 1-8

PROCESSING APPLICANTS WITH

MORAL DISQUALIFICATIONS

RULE A B Cc

If applicant has a conviction and applicant wants to en- then approval is

or an adverse adjudication list in the Reg AF and the delegated to

for (see note 1) number of offenses is (see note 2)

1 multiple minor traffic of- six or more in any l-year USAFRS

fenses (figure 1-1, para A) period

2 multiple minor misdemeanor two or more

offenses (figure 1-1, para B)

8 nonminor misdemeanor of- one or more

fenses (figure 1-1, para C)

4 Felony (figure 1-1, para D)

NOTES:

1. Waiting periods after civilian restraint are as follows:

a. No waiting period is required following termination of

parole, probation, or suspended sentence.

b. A 3-month waiting period is required after termination of

confinement of 15 days or more for those convicted. (Does not apply

to juvenile with an adverse adjudication. )

c. A 3-month waiting period after termination of confinement of

15 days or more for juvenile offenders is authorized when considered

necessary by the Recruiting squadron commander or operations

officer for Regular Air Force applicants. :

d. A 2-month waiting period after termination of confinement

of less than 15 days for those convicted or subject to adverse adju-

dication is authorized when considered necessary by the Regular

or Reserve squadron commander or operations officer.

2. Disapproval authority is delegated to the USAF Recruiting

squadron commander or operations officer for Regular Air Force

applicants. Refer questionable cases to next higher headquarters

within Recruiting Service. Figure 1-1 provides a uniform guidelist

of typical offenses, mior traffic offenses, minor misdemeanor offenses

(nontraffic) and felonies.

36a

AFR 30-2—SOCIAL ACTIONS PROGRAM

PART TWO

DRUG AND ALCOHOL ABUSE CONTROL PROGRAM

3-2. Air Force Policy:

a. Policy on Drug Abuse. The Air Force objective is

to maintain standards of behavior, performance, and dis-

cipline necessary for completing the misison. The illegal

or improper use of drugs by Air Force members can

seriously damage physical and mental health; may jeop-

ardize their safety and the safety of others; and can lead

to criminal prosecution and discharge under other than

honorable conditions. Drug abuse is not compatible with

Air Force standards. The Air Force is responsible for

preventing drug abuse among its members; for identify-

ing, treating, and restoring drug abusers to duty when

feasible; for controlling duty assignments; and for dis-

ciplining or separating (or both) those who use or pro-

mote illegal or improper use of drugs.

* * * *

3-3. Terms Explained:

* o * ”

e. Drug Terms Explained:

* ae * *

(5) Drug Abuse. Any illegal or improper use or pos-

session, sale, transfer, or introduction on a military in-

stallation of drugs as explained in this regulation.

(6) Drug Abuser. One who has illegally or improp-

erly used, possessed, transferred, or sold any narcotic

substance, marijuana, or dangerous drug. Categories of

abuse are determined, with the exception of (d) below,

by the commander, usually in consultation with the RC.

Categories of abuse are:

* * * «

37a

(b) Drug Experimenter. One who has illegally or im-

properly taken any narcotic substance, marijuana, or

dangerous drug as explained in this regulation for rea-

sons of curiosity, peer pressure, or other similar reasons.

* * * *

SECTION B—PROHIBITIONS, PENALTIES,

AND CONTROLS ON DRUGS

3-4. Using, Possessing, Selling, Transferring, and In-

troducing Drugs:

a. Air Force military members and civilian employees

who are subject to the Uniform Code of Military Justice

(UCMJ) must not use, possess, sell. transfer, or intro-

duce into a military unit, base, station, post, ship, or air-

craft any dangerous drugs (including nonnarcotic drugs)

as specified in paragraph 3-3c(3). Violations of these

prohibitions are chargeable under two separate UCMJ

articles as follows: Article 92 applies to dangerous drugs

(including nonnarcotie drugs) ; and Article 134 applies to

marijuana or any habit forming narcotic drugs.

* * * *

3-31. Standards for Separating Members for Drug or

Alcohol Abuse:

* aa * *

b. Drugs:

(2) Because drug abuse is not compatible with Air

Force standards, it is essential that careful consideration

always be given befcre keeping verified drug abusers in

the Air Force. NCOs, in particular, are responsible for

enforcing discipline standards according to AFR 39-6.

NCO have responsibilities inherent in their status as lead-

ers and manazers, in many instances as first-time super-

visors, to deter druy abuse and set an appropriate ex-

ample. Accordingly, commanders are required to weigh

those responsibilities carefully when determining the

proper action to take in cases when NCOs are involved

38a

in drug abuse. Each case must be determined on the

specific circumstances, with full consideration given to

Air Force policy of treating and restoring drug abusers

to duty when feasible.

* * * *

(4) In most circumstances, commanders should nor-

mally withhold discharge action for first drug-related

offenses. Subsequent failure to meet standards of conduct

and duty performance may be a basis for discharge.

Drug abusers who demonstrate an inability or unwilling-

ness to take part in or complete a drug rehabilitation

program are subject to discharge (see paragraph 4-1 for

Air Force policy regarding initial refusals to cooperate).

* * * *

89a

AIR FORCE REGULATION 53-3

DISENROLLMENT OF UNITED STATES

AIR FORCE ACADEMY CADETS

Section E—Disenrollment for Conduct Incompatible With

Exemplary Standards of Personal Conduct, Character,

and Integrity, or for Other Reasons

27. Requirement for Investigaton. When information is

received indicating that cadets have conducted themselves

in a manner which, if the information is confirmed, would

make their qualifications for continuation as a cadet

doubtful but would not warrant trial by court-martial,

the Superintendent will cause the case to be investigated.

If, in the opinion of the Superintendent, the investigation

discloses evidence indicating by reason of specific conduct

that a cadet is disqualified for continued cadet status, the

Superintendent will appoint either a Board of Officers

according to AFR 11-31 or a hearing officer to hear the

case. This course of action may be pursued notwith-

standing any other administrative procedures which may

apply to the case.

28. When a Hearing Is Considered Appropriate. Action

under paragraph 30 is appropriate if the evidence indi-

cates that any of the circumstances in this paragraph or

similar circumstances exist:

a. Conduct is or has been incompatible with exemplary

standards of personal conduct, character, and integrity.

This is evidenced by the existence of one or more of the

following or similar circumstances:

(1) Advocacy of political or ethical beliefs that

would prevent fulfillment of the commissioning oath.

(2) Lying, cheating, or stealing, or toleration

thereof.

40a

(3) Repeated and dishonorable failure to meet fi-

nancial obligations.

(4) The use, possession, transfer, or introduction

into a military unit or installation of narcotics, danger-

ous drugs, or marijuana; or excessive or illegal use of

alcoholic beverages.

(5) Willful failure to meet minimum standards of

academic or military proficiency.

(6) Repeated failure to meet required formations

or other military duties, either willfully or through gross

indifference.

(7) Loss, destruction or waste of Government prop-

erty under circumstances showing a gross disregard for

public property.

(8) Repeated commission of minor offenses under

either the UCMJ or the Commandant’s disciplinary

system.

(9) Commission of a serious offense triable by court-

martial.

(10) Sexual misbehavior. This includes, but is not

limited to:

(a) Lewd and lascivious acts.

(b) Homosexual acts, or attempts to engage in

homosexual acts, or soliciting another to engage in a

homosexual act. A board of officers convened according

to AFR 11-31 is required in all cases. See AFM 39-12,

Section H, for policy, definitions, and basis and type of

discharge.

(ce) Sodomy.

(d) Indecent exposure.

(e) Indecent acts with or assault upon a child.

4la

(f) Transvestism or other aberrant sexual be

havior.

(g) Other indecent acts triable by local, state,

federal, or military jurisdictions.

b. Conviction by a civil court of any offense for which

confinement for one year is an authorized punishment in

the table of maximum punishments in the MCM, 1969

(Rev.), paragraph 127, or if a cadet is committed or con-

fined to a state or federal medical institution by civil

authorities.

e. Conviction by court-martial for any offense when

confinement for one year is an authorized punishment

and when a dismissal was not included within the ap-

proved sentence.

d. Information received shows that retaining a cadet

may not be consistent with the interests of national se

curity. The Academy will report the facts and circum-

stances to the local Office of Special Investigation (OSI)

and will request an investigation. When the report of

investigation is received, action will be taken as outlined

in AFR 205-382.

e. Conduct prohibited by AFR 36-2.

f. Hazing. Cadets who request in writing a trial by

general court-martial may not be separated except under

sentence of the Court (10 U.S.C. 9352).

g. Paternity or maternity established by self-

admission, court adjudication or other sufficient evidence,

when the cadet has not tendered a resignation.

h. Fraudulent entry.

i. Pregnancy. When the cadet has not tendered a res-

ignation or volunteered for leave-without-pay status.

29. Type of Hearing. If the Superintendent, or, in his

absence, the Commandant of Cadets, determines the case

42a

could result in no worse than an honorable or general

discharge recommendation to the secretary of the Air

Force, the case may be processed using the hearing officer

procedure. If the Superintendent, or, in his absence, the

Commandant of Cadets, determines the case could result

in recommending a discharge under other than honorable

conditions, or if other sufficient reason exists. a board

of Officers will be convened according to AFR 11-31.

+ * 7 *

43a

DEPARTMENT OF THE AIR FORCE

The Air Force Cadet Wing

USAF Academy, Colorado 80840

Reply to

Attn of: Cadet [SEAL]

Subject: Tender of Resignation

To: Commandant of Cadets

1. Under the provisions of paragraph —— Section ;

AFR 53-3 I hereby voluntarily tender my resignation

from appointment to the United States Air Force Acad-

emy now held by me for reason stated in paragraph 5,

below.

2. I fully understand that if this resignation is accepted,

I may be separated or discharged from my appointment

to the United States Air Force Academy under other than

honorable conditions and will be barred from future re-

appointment and/or readmission to the United States Air

Force Academy; and, further, may be declared ineligible

for further officer training.

3. I understand that if this resignation is accepted it

will in no way affect any obligation I may have to service

under the Universal Military Service Act or other pro-

visions of law that may now or hereafter require my

service to the United States.

4. I have consulted a Judge Advocate officer prior to

making my decision, and he has advised me of the rights

and privileges available to me, explained resignation and

its possible effects, court-martial procedures, my rights to

counsel, and the effects of various forms of separation.

44a

5. Reason for submission:

(Cadet Signature Block)

The preceding statement of (cadet’s name) was his/her

decision, signed by him/her after he/she was fully coun-

seled by me and after he/she was advised of his/her

rights and privileges.

(Signature of Counsel)

(Typed name, SSAN, grade, USAF)

= |

45a

APPENDIX F

DEPARTMENT OF THE AIR FORCE

Headquarters United States Air Force Academy

Colorado Springs, Colorado 80840

[SEAL] 4 Oct. 85

Reply to

Attn. of: ACF

Subject: Indebtedness—McCrackin, James Franklin,

248-94-0090, For $41,064.50

To: HQ AFAFC/AJCR

Attn: G. Harris

Denver, Colorado 80279-5000

1. A review of the Cadet Pay account of Mr. James F.

McCrackin has been completed. All itemized entitlements

and deductions were examined and validated.

2. The letter at Attachment 1 reflects Mr. McCrackin’s

indebtedness for education costs for years 1983-1985 as

$41,872.35. A credit of $807.85 is reflected on his final

cadet worksheet (Atch 2). This credit is to be applied to

the educational indebtedness. Therefore, the net indebt-

edness due to the Air Force is $41,064.50 and should be

collected as instructed by the Secretary of the Air Force

(Atch 3).

3. As previously discussed by telephone, we are sub-

mitting this indebtedness account to your office for reso-

lution and collection because this is the first case which

involves Title 10, Section 2005. Should you have any

questions, please feel free to contact me at autovon

259-3160.

46a

‘s/ John E. Henry

JOHN E. HENRY, Lt Col, USAF

Director. Accounting and Finance

Deputy Chief of Staff, Comptroller

4 Atchs

1. Ltr, USAFA/ACM w/Atch

2. Cadet Pay Worksheet

38. Ltr, USAF/MPPA w/Atch

4. Section E, AFR 53-3

ec: USAFA/JA

USAFA/DPY

J. F. MeCrackin (w/W-2 and

CPITF Statement only)