RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2002-02620
		INDEX CODE 110.02
	 	COUNSEL:  None

	 	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

The narrative reason on his DD Form 214 not reflect “Fraudulent Entry” and he be reinstated into the Air Force.

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APPLICANT CONTENDS THAT:

His enlistment was not fraudulent. The South Carolina Solicitor, Fifth Judicial Circuit, told him all charges against him were dropped or dismissed. He voluntarily attended a state drug program; he was not ordered or required to participate. He provides a statement from the Solicitor to that effect, as well as a South Carolina Law Enforcement Division Records Check indicating he has no record.

The applicant’s complete submission, with 11 attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The following information was extracted from the applicant’s military personnel records.

On 7 Sep 01, the applicant signed AF Form 2030, USAF Drug and Alcohol Certificate, indicating he had never used, experimented, possessed, supplied or distributed marijuana or other illegal drugs/narcotics or undergone rehabilitation for drug or alcohol abuse.
 
The applicant completed DD Form 1966/1, Record of Military Processing, on 12 Oct 01, indicating he had not tried, used, sold, supplied or possessed any narcotic, hallucinogen or cannabis.

On 12 Nov 01, he again signed AF Form 2030 (re-certification at time of enlistment) indicating he had not used any drug, including marijuana, since originally completing the form. He was subsequently enlisted in the Air Force Reserves on 12 Nov 01 in the rank of airman first class (A1C) and assigned to Charleston AFB, SC.

On 9 Apr 02, he was ordered to active duty at Lackland AFB, TX, for basic military training (BMT) from 13 May thru 21 Jun 02 and technical training from 26 Jun through 6 Aug 02. 

The applicant’s BMT records reflect he struck another trainee during an altercation in the dormitory on 23 May 02. He received a Letter of Reprimand (LOR) on 24 May 02 for this incident. The applicant acknowledged receipt on 24 May 02 but did not rebut. 

On 24 May 02, the applicant was interviewed by a senior master sergeant, an AFRC liaison. In statements, the applicant indicated that in 1994-95 he and his brother-in-law were arrested for possession of marijuana; however, his brother accepted responsibility and he had no knowledge of the drug in his brother-in-law’s possession. In one statement he also indicated that in 1997 he was pulled over when driving from a party but did not know the passengers had cannabis in the car. One month later when he was driving a co-worker to work he was arrested for possession with intent to distribute cannabis within a half mile of a school. He contended the drug was in the co-worker’s backpack. In another statement, he admitted he got caught twice trying to sell cannabis in Feb and Mar 97. He indicated he thought that five years after getting his record expunged he did not need to tell his recruiter or obtain a waiver.  He added that his recruiter was not at fault and that he had lied to get into BMT. [A copy of the actual criminal charges is not included in the applicant’s submission (Exhibit A) or his records (Exhibit B). A letter from the South Carolina Solicitor, Fifth Judicial Circuit, dated 18 Jun 02 and provided by the applicant at Exhibit A, indicates he voluntarily entered the Richland County Drug Court Program in May 97, that he was not ordered or required to participate, and he successfully completed the program in Aug 98. All charges against the applicant were dismissed at that time.]

On 28 May 02, the applicant was classified as a fraudulent enlistee.  

On 31 May 02, the commander notified the applicant he was to be discharged for fraudulent entry. This was based on the applicant’s failure to inform his recruiter of a previous moral violation (possession with intent to distribute). The applicant acknowledged receipt of notification on 31 May 02 and, after consulting counsel, waived his right to submit statements. The applicant was subsequently recommended for discharge for fraudulent entry. The case was found legally sufficient on 12 Jun 02 and approved on 13 Jun 02.

On 17 Jun 02, the applicant was given an entry level separation (uncharacterized) for fraudulent entry and discharged in the grade of A1C.

On 24 Oct 02, the applicant’s DD Form 214 was corrected to remove the 1 month and 10 days of active service reflected in Section 12c because it was nullified by his fraudulent enlistment.
 
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AIR FORCE EVALUATION:

HQ AFPC/DPPRS provides their rationale for recommending denial.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/JA indicates “the applicant states his recruiter advised him that since his case had been dismissed he should not indicate on the form he had used marijuana.”  AFPC/JA does not find it plausible that the recruiter would have advised the applicant to lie on that or any other part of the form, nor has the applicant provided any evidence to support this contention.  Most likely, the applicant did not reveal the full extent of his drug involvement to his recruiter. “Now that it has come to light, the applicant is trying to shift to his recruiter the responsibility he himself held for answering truthfully on the form.” By his own admission, the applicant was involved with drugs prior to entering the Air Force. When his drug history came to light, the commander took proper steps in recommending discharge according to AFI 36-3208. AFI 36-3208 also allows a commander to request a waiver in cases of fraudulent entry. Apparently the commander did not believe the applicant was a “good risk” since in his short time in the Air Force he had already received an LOR and had other derogatory comments in his training. The applicant’s DD Form 214 should not be changed nor should he be reinstated.

A complete copy of the evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the Air Force evaluations were forwarded to the applicant on 22 Nov 02 for review and comment within 30 days.  As of this date, this office has received no response. 

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AMENDED AIR FORCE EVALUATION:

On 14 Jan 03, the AFBCMR Staff pointed out to HQ AFPC/JA that, although their advisory asserts the applicant was trying to shift responsibility for his untruthful answers to the recruiter, no evidence of such an attempt could be found in the applicant’s available records.  In fact, his statements in his military personnel records reveal that he was not blaming the recruiter and that he lied to get into BMT. As a result, HQ AFPC/JA reaccomplished their advisory, omitting their comments with regard to the recruiter. The amended advisory is otherwise identical to their original evaluation and still recommends denial.

A copy of the amended evaluation is at Exhibit F.

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APPLICANT’S REVIEW OF AMENDED AIR FORCE EVALUATION:

The applicant asserts he was arrested only once for selling cannabis in 1997; however, there was another charge put against him earlier that year for possession. He is not proud of what he did or the company he kept. It has taken a long time for him to change the errors of his ways. He indicates he was never told there could be a waiver for [fraudulent entry] as indicated in the advisory. He claims he received the LOR three days after he was notified of his impending separation, that he received the LOR because he got upset with an airman after he was notified of his discharge. [Note: The applicant acknowledged receipt of the LOR on 24 May 02 for the 23 May 02 incident and acknowledged receipt of the Notification of Discharge Letter on 31 May 02--See Statement of Facts.]

The applicant’s complete response 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 timely filed.

3.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After carefully considering all the available documentation, we are not persuaded the narrative reason for the applicant’s discharge should be changed. His contentions are duly noted; however, we do not find these uncorroborated assertions, in and by themselves, sufficiently persuasive to override the evidence of the record and the rationale provided by the Air Force.  In this regard, the applicant signed documents indicating he had never used, experimented with, possessed, supplied or distributed marijuana or other illegal drugs, or had undergone rehabilitation for drug or alcohol use. However, these assertions were later discovered to be untrue. Further, the commander apparently believed the applicant was not a good risk and his retention would not be in the Air Force’s best interests. The applicant has failed to demonstrate that the commander exceeded his authority or that the reason for the discharge was inaccurate or unwarranted. We therefore adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of having suffered either an error or an injustice. In view of the above and absent persuasive evidence to the contrary, we conclude this appeal should be denied.  

4.	The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved. Therefore, the request for a hearing is not favorably considered.
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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 this application in Executive Session on 3 April 2003 under the provisions of AFI 36-2603:

The following documentary evidence relating to AFBCMR Docket Number BC-2002-02620 was considered:

   Exhibit A.  DD Form 149, dated 8 Aug 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPRS, dated 22 Oct 02.
   Exhibit D.  Letter, HQ AFPC/JA, dated 19 Nov 02.
   Exhibit E.  Letter, SAF/MRBR, dated 22 Nov 02.
   Exhibit F.  Letter, HQ AFPC/JA (amended), dated 19 Nov 02.
   Exhibit G.  Letter, SAF/MRBR, dated 7 Mar 03.
   Exhibit H.  Letter, Applicant, dated 13 Mar 03.