RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2002-03493
		INDEX CODE: 110.02 110.03  						108.01
	 	COUNSEL:  

	 	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

Her 2000 general discharge for fraudulent entry into military service be changed to an honorable discharge for service-connected medical disability.

Or in the alternative, reinstate her if necessary to carry out dual processing for physical disability.

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APPLICANT CONTENDS THAT:

Counsel argues his client accurately related her pre-service conduct to her recruiter, her “false official statement” was an inadvertently incorrect statement, her back pain was service connected, and her performance warranted an honorable discharge. 

Her recruiter told her not to mention or list her pre-service drug use on her application. The recruiter made a material misrepresentation to her--don’t tell and you’ll be okay. Her entry into service did not hinge on any fraud by her but on the widely known and acknowledged practice of recruiters who encourage potential enlistees to stay silent so the recruiters can reach their performance goals. This premise was accepted when the Air Force gave her a waiver of the discharge. The Air Force was stopped from subsequently holding her compliance with the recruiter’s instructions against her. She was overwhelmed by having her rights read to her and did not recall all of the incidents of pre-service drug use. She initially was told her discharge would be honorable. Her enlistment physical in May 00 showed no spinal or other musculoskeletal abnormalities. She injured her back while carrying a backpack filled with 30 pounds of Chinese language books used in her job as a linguist. She should have been allowed dual processing for service-connected physical disability.

Counsel’s complete submission, with attachments, is at Exhibit A. 

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STATEMENT OF FACTS:

On 20 May and 22 Jun 00, the applicant completed and signed AF Form 2030, USAF Drug and Alcohol Abuse Certification, indicating she had not experimented with, used, possessed, supplied or distributed marijuana or other illegal drug or narcotic. She signed a DD Form 1966/1, Record of Military Processing, on 23 May 00, also asserting no illegal drug use.

She indicated on her 23 May 00 entrance physical that she did not have back pain or recurrent back pain. 

The applicant enlisted in the Regular Air Force on 22 Jun 00 for six years and in Aug 00 was assigned to the 311th TRS at the Presidio of Monterey, CA, as a Far East cryptologic linguist (Chinese Mandarin). 

The applicant completed and signed an SF 86, Security Clearance Application, on 18 Jul 00. She again denied any illegal drug use or activity since the age of 16 or in the last seven years.  

On 18 Sep 00, applicant was notified of her commander's intent to impose nonjudicial punishment for underage consumption of alcoholic beverages on or about 31 Aug 00. After consulting with counsel, applicant waived her right to a trial by court-martial. She did not request a personal appearance but did submit a written presentation. On 25 Sep 00, her commander found her guilty and imposed punishment in the form of forfeiture of $465.00 pay per month for two months and 21 days of extra duty. The applicant did not appeal. The Article 15 was found legally sufficient and filed in her Unfavorable Information File (UIF).

On 21 Nov 00, in the process of being investigated for sensitive compartmented information (SCI) clearances, the applicant provided a voluntary signed statement to a special agent of the Defense Security Service (DSS) describing her pre-service drug use. She indicated she used marijuana approximately 30 times, mainly at parties, snorted cocaine once, tried ecstasy on five occasions, and whippets (inhalant) on two occasions. She was never arrested. She asserted she did not tell her recruiter or report her drug use on her security form because she felt she would not be able to enlist in the Air Force. She claimed she chose to reveal her prior drug use because she wanted to obtain the special clearances needed for her job. 

A 1 Dec 00 medical entry reported the applicant presented with upper back pain after carrying her backpack, apparently on her left side. Examination was normal. She was given an anti-inflammatory and muscle relaxant. The physician’s assistant (PA) indicated the applicant should lift no more than five pounds and could carry the backpack on the right shoulder. A 9 Dec 00 follow-up indicated she still experienced upper back pain that became sharp with any movement. The pain on the left side had been resolved but was now on the right side. The PA estimated the backpack weighed about 30 pounds when filled with books and other articles. The applicant was advised to lighten the backpack load and to wear the pack in normal fashion to more evenly distribute the load.

A 23 Jan 01 physical therapy consultation reported the applicant continued to experience intermittent pain depending on the activity. She revealed a similar episode two-three years ago while dancing. Follow-up visits on 13-15 Feb 01 reflected continued back pain.  No clinical signs of inflammation or mechanical breakdown were noted and X-rays of her cervical spine on 28 Feb 01 were normal. The applicant refused offers of anti-inflammatory and muscle relaxant medications. She was referred to orthopedics for long-term profile or Medical Evaluation Board (MEB).

A referral for civilian medical care, dated what appears to be 26 Feb 01, indicated a provisional diagnosis of cubital tunnel syndrome.

The applicant continued to experience back pain. A 3 May 01 medical entry reported the applicant complained of right hip pain over the last two months. She denied trauma and advised she was treated for a urinary tract infection in Apr 01. 

On 23 Jul 01, X-rays of the applicant’s thoracic spine were normal. On 1 Oct 01, X-rays of her lumbosacral spine were normal. She continued to complain of upper and lower back pain in Aug 01.

On 19 Oct 01, magnetic resonance imaging (MRI) of the lumbar and cervical spine by a civilian provider were normal.

On 1 Nov 01, the applicant indicated on AF Form 2519, SCI Pre-Screening Interview (PSI) Checklist, that she had experimented with marijuana around 15 times and ecstasy around three times in a three-year period. After being advised of her rights, she waived counsel and provided a sworn statement on 2 Nov 01 to the NCOIC of the 311th TRS/Security Forces (SF), claiming that when she was in the process of enlisting she informed her recruiter of her previous drug experimentation. He allegedly told her she would not be able to enter the Air Force if she admitted to using these drugs and advised her not to say anything and nobody would find out. Later, she realized that lying was the wrong thing to do and she told her interviewer of her past drug experimentation history. She had not used any type of illegal drug for about a month before she went to the processing center the first time. She stated she used marijuana at parties around 15 times and Ecstasy on three occasions. She asserted she did not want to engage in drug use since joining the military. She added she told the DSS interviewer of her past drug history because she was being investigated for clearances and did not want to lie. She asserted she had not used drugs since shortly before or after entering the service.

A 19 Nov 01 medical entry reported the applicant complained of pain in her entire back and hips. The entry indicates the applicant hurt her back a year ago with a backpack and had intermittent backaches ever since.

An MRI follow-up visit on 30 Nov 01 indicated the applicant stated her lower back pain had resolved but her upper back still hurt. A 30 Nov 01 physical profile for back pain restricted her from running, jumping, or sitting for longer than 30 minutes without changing position. She was permitted to lift up to 15 pounds. (The profile expired on 30 Dec 01.)

On 17 Dec 01, the 311th TRS commander requested the 17th TRW commander to approve a waiver of discharge action for fraudulent entry on the applicant. He advised that the applicant’s marijuana use probably would not have prevented her enlistment or required a waiver if she had disclosed this on her enlistment papers. However, her Ecstasy use would have been questioned and required a waiver. The squadron commander added that the applicant was an outstanding airmen and her retention was in the best interests of the Air Force. He believed she would not use drugs again and would excel if given the chance to stay.

A legal review dated 19 Dec 01 recommended that the waiver be approved and the applicant be retained. The 17th TRW commander approved the waiver/retention on 20 Dec 01.

A 7 Feb 02 medical entry noted the applicant’s symptoms were improved, that she was now doing push-ups without problems but sit-ups still hurt, and she was running better but was not conditioned. An MRI of her thoracic spine on 28 Feb 02 was normal. However, a 15 Mar 02 entry reported her chronic mid/low back pain with walking, running and sit-ups had not improved despite waivers and physical therapy. The physician noted no surgical findings on the MRI and referred her to Orthopedics at Travis AFB for a possible MEB. 

According to a statement from the 311th TRS/SF NCOIC, a request for additional information from the Air Force Central Adjudication Facility (AFCAF) was made on 13 Mar 02. The records do not indicate what triggered the request. As a result, on 18 Mar 02, the applicant waived her right to counsel and made another sworn statement. She indicated when she was interviewed on 2 Nov 01, she did not mention her prior service cocaine use because she did not remember it and it was a one-time usage. She stated she was “overwhelmed” with being read her rights and that it slipped her mind. She added she was told her prior service drug use was waived but, due to the ongoing stress related to this issue, she no longer wished to continue with her military service. 

On 3 Apr 02, the 311th TRS commander notified the applicant of his intent to recommend discharge for fraudulent entry. The commander indicated a discrepancy had been found during a review of the statement the applicant made to the DSS on 21 Nov 00. In this statement, she admitted to using marijuana around 30 times, twice her previously admitted amount, Ecstasy three times, cocaine once and whippets twice. She failed to disclose this information before her waiver was granted. The commander indicated that when the applicant was interviewed on 18 Mar 02, she acknowledged using Marijuana around 30 times, cocaine once, and whippets twice. The commander also cited the Article 15 and the following incidents for which the applicant was counseled: being late on 30 Aug 00 for a third phase test, having her hair outside of regulations on 10 Sep 00, being late for a bay meeting on 24 Oct 00, not checking in for accountability on 27 Oct 00, and failing a room inspection on 17 Jan 01.

The applicant acknowledged receipt and, on 3 Apr 02, her commander recommended a general discharge for the reasons cited in the notification letter. The commander added the applicant was ineligible for probation and rehabilitation (P&R) [because of the fraudulent entry]. He had considered another waiver, but did not believe retention would be in the best interests of the applicant or the Air Force. The applicant waived her right to counsel and to submit statements.

A legal review on 8 Apr 02 recommended the applicant be discharged with a general characterization. On 12 Apr 02, the discharge authority approved the applicant’s general discharge without P&R.

A physical exam on 15 Apr 02 noted the applicant had chronic mid/low back pain for more than one year. Symptoms persisted despite nonsteroidal anti-inflammatory drugs (NSAIDs), physical therapy, activity modifications, X-rays and MRIs. The orthopedic workup at Travis yielded no objective findings to date. 

On 22 Apr 02, the applicant was discharged in the grade of airman first class, with a general characterization, for fraudulent entry. Her DD Form 214 reflected one year, ten months and one day of active service.

On 19 Jun 03, HQ AFPC/DPPRSP forwarded to the applicant a DD Form 215 correcting her DD Form 214 to show she had no active service (based on the fraudulent entry). 

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AIR FORCE EVALUATION:

The AFBCMR Medical Consultant advises that the applicant’s neck and back pain did not interfere with the performance of her primary duties. Her pain remained unchanged in the months after her Dec 01 retention leading to her ultimate discharge for fraudulent enlistment. However, in mid-Mar 02, when repeat discharge action was imminent, referral for orthopedic surgery evaluation for a possible MEB was made based on continued pain and the requirement for physical limitations. The events of her administrative discharge action overcame any medical administrative process. Had she not been discharged for fraudulent enlistment and an MEB conducted, she may likely have been recommended for retention with a permanent physical limitation or she may have been found unfit and recommended for disability discharge with severance pay at no more than 10%.  This point is moot, however, as airmen being discharged under provisions that allow for a characterization of service as under-other-than-honorable-conditions (UOTHC), regardless of the actual characterization of service received, are not eligible for entry into the Disability Evaluation System (DES). AFI 36-3208 indicates that UOTHC discharge is the usual characterization for fraudulent enlistment when the airman is no longer in entry-level status. The applicant received a general discharge, acknowledging the positive aspects of her service. The case should be denied because action and disposition were proper and equitable.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPD notes that, although the applicant’s medical records show she was being treated for various medical conditions during her short military career, her administrative discharge apparently preempted the finalization of these treatments. The mere presence of a physical defect or condition does not automatically qualify a member for a disability discharge or retirement. The defect or condition must render the member unfit for duty. The applicant was reasonably capable of performing the duties of her office, grade, rank or rating right up until her release from active duty. Her military career was not curtailed as a result of any physical limitations at the time of her discharge. The medical aspects of the case are thoroughly reviewed by the Medical Consultant, with which they wholeheartedly agree. Denial is recommended.

A complete copy of the evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In accordance with requests from the applicant and her counsel, the case was temporarily withdrawn on 13 Jun 03.

Copies of the applicant and counsel’s letters are at Exhibit F. 

Based on counsel’s 10 Apr 04 response, the applicant’s case was reopened. Counsel asserts the AFBCMR Medical Consultant is speculating that an MEB would have retained the applicant because of her critical specialty, while ignoring the fact that her ability to keyboard for extended periods of time as a cryptologist was impaired by her radiculopathy and cubital tunnel syndrome. An MEB had been recommended for the applicant before the administrative separation. The Air Force’s failure to convene that board deprived the applicant of due process by giving her no opportunity to determine whether she was fit for duty. 

Counsel provides copies of the applicant’s military medical records in support. His complete response, with attachments, 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 a thorough review of the evidence of record and the applicant’s submission, we are not persuaded her general discharge for fraudulent enlistment should be changed to an honorable discharge for service-connected disability, or that she should be reinstated for medical disability processing. Counsel’s contentions are duly noted; however, we do not find these assertions, in and by themselves, sufficiently persuasive to override the evidence of record or the rationale provided by the Medical Consultant and the Air Force. The waiver granted to the applicant in Dec 01 was based on her admitting to using marijuana 15 times and ecstasy three times prior to military service. However, information from an earlier disclosure of more serious and significantly more frequent drug use subsequently came to light. In one instance, the applicant contended her recruiter advised her not to reveal her drug history. In another statement, she specifically indicated she did not reveal her drug use history to her recruiter but concealed it to gain entry into the Air Force. While we can easily believe an aggressive recruiter might suggest an enlistee not reveal infrequent minor drug use, we find it difficult to accept any recruiter would be so reckless as to suggest concealment of a frequent and varied drug history such as the applicant’s.  Regardless of whether the recruiter told her to conceal her drug history, the decision to obscure her drug use was ultimately hers to make. Consequently, the applicant’s credibility appears somewhat questionable and, coupled with the Article 15 and other minor infractions, we agree with the Air Force’s decision to discharge her. As for the medical issues, the applicant has not established to our satisfaction that, at the time of her separation, an unfitting condition had curtailed her career. MRIs, X-rays, and the orthopedic workup at Travis for “possible MEB” yielded no objective findings. The disability evaluation process begins only when examination, treatment, hospitalization or substandard performance results in actual referral to an MEB. In any event, as noted by the Medical Consultant, AFI 36-3208 indicates the usual characterization for fraudulent enlistment is a UOTHC characterization of service. Airmen being discharged under provisions that allow for a UOTHC characterization, regardless of the actual service characterization received, are not eligible for entry into the Disability Evaluation System. The applicant was given a general discharge in acknowledgement of the positive aspects of her service.  We agree with the Consultant and the Air Force that disposition in the applicant’s case appears proper and equitable and she was not a victim of an error or an injustice. In view of the above and absent persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

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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 12 May 2004 under the provisions of AFI 36-2603:

			Panel Chair
			Member
			Member

The following documentary evidence relating to AFBCMR Docket Number BC-2002-03493 was considered:

   Exhibit A. DD Form 149, dated 1 Oct 02, w/atchs.
   Exhibit B. Applicant's Master Personnel Records.
   Exhibit C. Letter, AFBCMR Medical Consultant, dated 17 Mar 03.
   Exhibit D. Letter, HQ AFPC/DPPD, dated 5 May 03.
   Exhibit E. Letter, SAF/MRBR, dated 9 May 03.
   Exhibit F. Letters, Applicant, undated, & Counsel, dated 
				19 Jun 03.
   Exhibit G. Letter and Email, AFBCMR, dated 13 & 30 Jun 03.
   Exhibit H. Letter, Counsel, dated 10 Apr 04, w/atchs.