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TULLY v. ORR

May 14, 1985

KEVIN TULLY, Plaintiff, against VERNE ORR, SECRETARY OF THE AIR FORCE, Defendant.


The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge

Plaintiff is in his final semester as a Cadet at the United States Air Force Academy (the "Academy"). He has been "disenrolled," i.e., expelled, for various academic offenses and misconduct, and he brings this action for a declaratory judgment that the Academy's disenrollment procedures violate Due Process. He now seeks a mandatory preliminary injunction directing defendant to: 1) permit plaintiff to sit for his final examinations; and 2) grade those examinations. Defendant has cross-moved to dismiss plaintiff's complaint for failure to exhaust administrative remedies.

 Because of the imminence of the final examination period at the Academy, the ruling on plaintiff's request for injunctive relief must issue before defendant's cross-motion is fully briefed. The parties agreed that plaintiff's motion would be decided without an evidentiary hearing.

 Accordingly, the Court has reviewed the affidavits and memoranda submitted by the parties, as well as the lengthy administrative record from Cadet Tully's numerous disciplinary hearings. For the reasons developed below, the application for a preliminary injunction is denied.

 Facts

 The Academy's disciplinary system is embodied primarily in Air Force Cadet Wing Regulation 111-1 ("Regulation 111-1") and in Air Force Regulation 53-3 ("Regulation 53-3"). Regulation 111-1 defines, in great detail, the numerous classes of offenses that may be committed by cadets, and the various punishments that may be imposed for those offenses. Regulation 53-3 establishes a Cadet Disciplinary System and sets forth the procedures for disenrolling cadets from the Academy. Under Regulation 111-1, disciplinary violations are punishable by combinations of demerits, confinements or tours, and periods of restriction. The maximum number of demerits that may be awarded for a single incident in 75; each cadet has a 100-demerit allowance for any six-month period.

 Any cadet who exceeds 50 demerits in one period may be placed on conduct probation. Exceeding the 100-demerit limit causes a cadet to be deemed deficient in conduct. A cadet who is deficient in conduct after being on conduct probation "will normally be considered for disenrollment." Regulation 111-1, [PP] 2h, 3.

 For the majority of offenses, punishments are imposed by various Academy officers. A cadet charged with more serious offenses, or with continuing misconduct, may be brought before the Commandant's disciplinary Board ("CDB"). The CDB reviews the incident and recommends suitable demerits and punishments to the Commandant for his approval.

 In addition to the disciplinary system, the Academy adheres to an Honor Code: "We will not lie, steal, or cheat, nor tolerate among us anyone who does." Prior to June, 1984, allegations of Honor Code violations were considered by honor boards made up entirely of cadets. Because the Academy's administrators believed honor boards were not functioning properly, they were suspended as of June 18, 1984. On June 25, 1984, all cases pending before honor boards or under investigation were referred to CDBs. From that date until January 6, 1985, honor cases were handled by the Cadet Disciplinary System, through the use of CDBs, pending implementation of a new honor system.

 Plaintiff's troubles began in the Spring of 1984, as he neared completion of his third year. On April 27, 1984, plaintiff attended a "Dining-Out" at a neighboring Air Force base. There he insulted a superior officer, Major Garvey. As a result of his actions that evening, plaintiff was charged with misconduct.

 Several days later, plaintiff submitted a term paper in his Behavioral Science 332 course (the "BS paper"). Plaintiff was later charged with plagiarism, an Honor Code violation. The day after submitting the BS paper, plaintiff violated a direct order from Major Garvey not to drive his car back to the Academy.

 On May 10, 1984 a CDB was convened to review plaintiff's conduct at the Dining-Out and his violation of Major Garvey's order. Plaintiff was given 70 demerits and other punishments, and placed on conduct probation. On June 1, 1984 a cadet Honor Board was convened to review plaintiff's alleged plagiarism of the BS paper. After plaintiff told the Board he had previously used the same paper in his English 330H course (the "English paper"), the Board recessed to investigate whether plaintiff should be charged with a second count of plagiarism.

 Before the cadet Honor Board could reconvene, it was abolished, and plaintiff's case was referred to a CDB. The CDB was made up of four officers and one cadet. Plaintiff was found guilty of plagiarizing both the BS paper and the English paper, and of lying about the references he used in those papers. He was given ...


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