RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-03373
		INDEX CODE:  110.02, 131.00, 						 135.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  His records be corrected to reflect he was retired in the rank of Master Sergeant (MSgt/E-7) with back pay and points, effective the date of the Board’s decision, rather than administratively discharged for Fraudulent Entry.

2.  His general discharge be revoked.

3.  He be awarded the maximum allowable retirement points he would normally have accrued from 19 Dec 93 through the date of the Board’s decision.

4.  He be awarded all lost pay and allowances based on his promotion to E-6, effective 1 Jan 94, and E-7, effective 1 Jan 98.

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APPLICANT CONTENDS THAT:

When he reenlisted into the Air Force Reserve, he was not given enough time to properly fill out his security clearance forms; nor was he advised that a security investigation would need to take place.  Had he known this was the case, he would have requested the forms to be given to him as soon as the recruiting process began.  He had little time to prepare, and was not in possession of any documentation that he could refer to.  Because his unit wanted him to reenlist the next day and perform drills, he felt rushed to complete the paperwork.

He states that during his first several drills in 1992, he was redlined for promotion because of an ongoing sexual harassment case in the unit.  After informing the commander that those were not grounds for redlining someone for promotion, he later informed his commander also that a pending security clearance was not a reason to deny promotion.

He further states that during his discharge proceedings there were some concerns that he was not receiving the best representation.  His military legal counsel feared for his career and he felt that this raised the possibility of an unwelcome, unintended and intimidating conflict of interest between his counsel and his superiors at the Reserve headquarters.

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

Prior to the period of service under review, the applicant had prior service in the Regular Air Force between 21 Sep 67 and 15 Dec 77; the Air Force Reserve from 22 May 78 until 1 Feb 79; Regular Air Force from 2 Feb 79 until 4 May 79; the Army National Guard from 26 Sep 79 until 11 Nov 80; Regular Air Force from 12 Nov 80 until 15 Jul 82.  He was in civilian status from 16 Jul 82 until 30 Dec 86.  He enlisted in the Alabama Army National Guard (ARNG) on 31 Dec 86 and remained there until his transfer to the Idaho ARNG in 1989.

On 2 Feb 91, he enlisted in the Washington Air National Guard (ANG); he transferred to the Air Force Reserve on 10 Dec 92.

On 15 Sep 93, the squadron section commander initiated administrative discharge action against the applicant for Fraudulent Entry.  The specific reason for the proposed action was the applicant’s intentional omission of numerous incidents of arrests and delinquent debts from a security investigation request (DD Form 398-2) that, if known at the time of enlistment, might have resulted in the applicant being ineligible to enlist.

On 19 Jan 95, the Secretary of the Air Force Personnel Council denied the applicant’s request for Lengthy Service Probation (LSP).  They opined that had the applicant’s falsehoods been promptly discovered, he would not have been permitted to serve any military service in any capacity since at least 1982.  Had this been the case, he would not have been eligible for LSP, let alone near retirement eligibility.

On 19 Feb 95, he was discharged from the Air Force Reserve with a General discharge by reason of Defective Enlistment – Fraudulent Entry.

On 26 Mar 01, HQ ARPC/DPPRB published Reserve Order EK-3668, transferring the applicant to the Retired Reserve, effective 19 Feb 01.  This order was rescinded by Reserve Order EK-1013, on 5 Feb 02.  According to HQ ARPC/DPPRB, the retirement order had been issued in error.

Other relevant facts pertaining to the applicant’s discharge are contained in the letter prepared by HQ AFRC/JAJ, attached to Exhibit D.

Pursuant to the Board’s request, the Federal Bureau of Investigation, Clarksburg, West Virginia, provided an investigative report which is attached at Exhibit C.

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AIR FORCE EVALUATION:

HQ AFRC/DPM reviewed this application and recommended denial.  They concurred with HQ AFRC/JAJ’s recommendation (Attached).

HQ AFRC/JAJ reviewed the applicant’s requests and recommended that no relief be granted.  They noted the following facts from the case file:

     a.  The applicant was recommended for discharge for fraudulent entry with an Under Other Than Honorable Conditions service characterization.  He received the notice of his discharge action in a memo prepared by HQ AFRES/DPA, dated 29 Oct 93.  Applicant requested to have his case heard by an administrative discharge board, which convened on 30 Mar 94 and then was delayed until 1 Jun 94.  He was subsequently represented by military and civilian counsel.  The Board found that a preponderance of the evidence proved the Fraudulent Entry allegation and recommended his discharge with a general (under honorable conditions) service characterization.

     b.  On 5 Jul 94, HQ AFRES/CV approved the findings and recommendations and the case file was forwarded to the Air Force Personnel Board (AFPB) for a determination as to whether the applicant should receive Lengthy Service Probation (LSP).  The AFPB denied the request for LSP.  

     c.  Applicant was discharged on 19 Feb 95, for Fraudulent Entry pursuant to Reserve Order A-076.  He was assigned in the Air Force Personnel Data System (PDS) as a discharged former member since he had over 20 years of satisfactory service at the time of his discharge.  After notification of his discharge action, applicant submitted an AF Form 131, Application for Transfer to the Retired Reserve.  His application was denied on 16 May 94 by the discharge authority.

     d.  Reserve Order EK-3668, published on 26 Mar 01, transferred applicant to the Retired Reserve, effective 19 Feb 01.  This order was rescinded by Reserve Order EK-1013, on 5 Feb 02.  According to HQ ARPC/DPPRB, the retirement order had been issued in error.

In discussing the applicant’s case file, HQ AFRC/JAJ, noted several reasons for denying the applicant’s request.  They stated the applicant was afforded full due process during his discharge action; a board of officers found that a preponderance of the evidence proved the Fraudulent Entry allegation.  They also noted that in the applicant’s narrative statement, the applicant admits that he made material misrepresentations on his DD Form 398-2 when he filled it out on 1 Feb 01, i.e., “left out information regarding civil court convictions, mental health history and other information.”  His only excuse was that he was pressured to fill out the security forms in less than one-half hour, which caused him to omit some information unintentionally.

Applicant denied ever having any property repossessed, in fact he had four vehicles repossessed.  Although, he had time to list that he had received speeding tickets, he somehow “forgot” that he had been arrested at various times for assault, disturbing the peace, resisting a police officer, destruction of property, harassment, felony menacing with a firearm, pistol whipping, first degree felony trespassing, felony larceny, felony conspiracy to violate US copyright laws, and willful failure to pay withholding tax.  Several of these arrests resulted in criminal convictions.  He also forgot having numerous interactions with mental health professionals and even being diagnosed with a personality disorder.  He forgot over $240,000 in debts that he owed to 60 different creditors, including $16,000 to the Department of Justice (DOJ) and $28,000 to the Internal Revenue Service (IRS).  They further state that it was not possible for the applicant unintentionally to have omitted so much material information in his DD Form 398-2, and the only possible explanation is that his omissions were willful and intentional.  Had this information been known, he never would have been allowed to transfer to the USAFR from the Washington ANG.  In fact, he would have been processed for discharge by the Washington ANG since his felony conviction for violation of U.S. copyright laws is a “major offense” and not waiverable in accordance with ANGR 39-9, Table 2-3, Line 1a.  The discharge for Fraudulent Entry was warranted.

As to the applicant’s erroneous assignment to the Retired Reserve after he contacted a technician at HQ ARPC/DPPRB, his retirement was not lawful and the technician had no authority to bind the United States.  According to a legal review by AFRES/JA, dated 19 Dec 94, although applicant met the 20 years of satisfactory service requirement, he did not meet the requirement that the last eight years must have been completed in a Reserve component.  As of 30 Dec 93, the applicant had 20 years, 1 month and 24 days of satisfactory service, however, only the last 7 years were with a Reserve component.  Moreover, the JA memorandum stated that although 10 U.S.C. 1331 was amended to insert “six years” vice “eight years” it did not apply to the applicant, since all of his service was prior to the date the amendment was enacted.  This interpretation of the impact of the amendment was endorsed by an opinion from HQ USAF/JAG in Mar 96, which stated that the 20 years of service must have been completed within a 5-year window between 5 Oct 94 and 30 Sep 99.  However, DOD/GC disagreed in its opinion dated 13 May 96, where they concluded that this 5-year window of eligibility did not apply in order to take advantage of the amendment.  This subsequent DOD/GC opinion may explain why some technician at HQ ARPC/DPPRB took unilateral action to publish a retirement order.

In final, assuming the applicant would have been considered eligible for retirement when he submitted his AF Form 131, they are confident that AFRES/CV would not have approved his request for transfer to the Retired Reserve.  The applicant should not have been permitted to serve in any military capacity as far back as 1982.  He was able to do so only because of his willful deceit.  Strictly on the merits of the past, denying his request for retirement would have been the logical conclusion.  

A complete copy of the Air Force evaluation, with attachment, is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant submitted a 68-page rebuttal, wherein he states that he takes rigorous exception to HQ AFRC/JAJ’s advisory opinion regarding their comments and recommendation that no relief be granted per his application for correction of his military records.  He submitted additional documents to support his claim.  He says he has the utmost respect for this country’s military services, institutions, customs and traditions, however, when a drastic action such as an involuntary discharge is made by the Air Force Reserve against one of its own members, it should be fair, impartial, objective and most of all, base its decision on facts, not distortions, outright falsehoods, or inconclusive/incorrect findings.  As well, the punishment should fit the crime, if there was a crime.  He has been truthful (to the best of his memory) in all statements made, both in the original application and his rebuttal, to the best of his knowledge, belief and experience regarding his discharge from the Air Force Reserve on 19 Dec 95.

Applicant’s complete response to the Air Force evaluation is at Exhibit F.

Applicant also submitted a response to the FBI Report of Investigation, wherein he reiterated his suspicions about the circumstances under which he was removed from the Retired Reserve and says most of the charges mentioned were reduced, dismissed, nolle processed, or part of one incident.

He further states that most of the incidents mentioned in the FBI file, 3 (or possibly 4) of them were disposed of by relatively small fines; one was nolle processed, and possibly one was not prosecuted.

Applicant’s complete response to the FBI Report is at Exhibit H.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  The discharge appears to be in compliance with the governing regulation and we find no evidence to indicate that applicant’s separation from the Air Force Reserve was inappropriate.  We find no evidence of error in this case and after thoroughly reviewing the documentation that has been submitted in support of applicant's appeal, we do not believe he has suffered from an injustice.  Therefore, based on the available evidence of record, and in the absence of evidence to the contrary, we find no basis upon which to recommend favorable action on his request to revoke his administrative discharge.

4.  We took notice of the applicant's requests to be retired in the rank of master sergeant (E-7) and to receive back pay and points; that he be awarded the maximum allowable retirement points that he would have normally accrued from 19 Dec 93 through the date of the Board’s decision, and that he be awarded all lost pay and allowances based on his promotion to E-6, effective 1 Jan 94, and E-7, effective 1 Jan 98.  However, having found no error or injustice with respect to the administrative discharge action, we find no compelling basis to recommend granting this portion of his application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered AFBCMR Docket Number 01-03373 in Executive Session on 26 November 2002, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 24 Nov 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report of Investigation.
    Exhibit D.  Letter, HQ AFRC/DPM, dated 20 Mar02, w/atch
				 HQ AFRC/JAJ ltr, dated 14 Mar 02.
    Exhibit E.  Letter, SAF/MRBR, dated 12 Apr 02.
    Exhibit F.  Letter, Applicant, dated 1 May 02, w/atchs.
    Exhibit G.  Letter, AFBCMR, dated 7 Aug 02, w/atch.
    Exhibit H.  Letter, Applicant Response to FBI Report,
				 dated 20 Aug 02.