RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01395
		INDEX CODE:  134.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His records be corrected to remove all references to a civilian arrest for assault and battery and related civilian court proceedings.
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APPLICANT CONTENDS THAT:

The civilian Virginia (VA) court issued an order requiring the expungment of all records relating to his arrest and court proceedings.  His military records should therefore be expunged pursuant to this order.

In support of his request, the applicant submits copies of the VA Expungement, a legal assistant’s statement, the NCIC check by the AFOSI, and a Waiver Request/Authorization.  The applicant’s complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

Applicant enlisted in the Delayed Entry/Enlistment Program (DEP) on 31 May 2002.  He contracted his enlistment in the Regular Air Force on 22 October 2002 in the grade of airman first class (E-3) for a period of six years.

Information extracted from the applicant’s submission reveals that, on 6 April 2002, he was arrested for assault and battery charges.  On 29 July 2002, the charges were dismissed “with accord and satisfaction pay costs/$62.00 costs” and the Circuit Court ordered the expungement of applicant’s records.  An enlistment waiver request was approved by the group commander on 11 September 2002.
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AIR FORCE EVALUATION:

HQ AFPC/JA recommends the application be denied.  JA stated that the applicant’s recruiting record (Waiver Request/Authorization) indicates that the applicant’s pre-enlistment conduct (including law violations, such as the assault and battery and self-admitted marijuana use) made him ineligible for enlistment in the absence of a waiver of such ineligibility factors.  JA believes the information relating to the assault and battery offense is properly a part of the applicant’s military records and should not be removed.  JA notes that the VA court’s order to expunge all records relating to the applicant’s arrest and court proceedings is without effect as regards the Air Force; under the supremacy clause of the federal constitution, such a state order is not binding upon the federal government.  JA states that an Air Force determination of enlistment eligibility is based upon the recruit’s conduct, regardless of whether the conduct resulted in dismissed charges or an expunged arrest record.  State expungement orders typically do not focus upon the question with which the Air Force is most concerned, that is, whether or not a recruit with an arrest record is suitable for military service.  VA law permits a court to dismiss pending criminal charges for assault and battery against a defendant who provides redress to the injured party and to expunge the defendant’s criminal record.  JA believes that the applicant’s expungement order does not justify deletion of information pertaining to his arrest by civilian authorities and related court proceedings.  The Air Force, as a federal executive agency, is not required to honor state court orders with respect to matters which are exclusively reserved to federal control, including the determination of enlistment eligibility and the maintenance of records related to such determination.  Since JA can discern no evidence of an error or injustice requiring AFBCMR action, they believe the information relating to applicant’s arrest and the disposition of the civilian charges against him should be maintained as a part of his military record.  The HQ AFPC/JA evaluation is at Exhibit C.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the advisory opinion and indicated that, if the Air Force found the State of Virginia’s record of arrest relevant, and it found the dismissal relevant, then it, too, should find the State’s expungement relevant.  The fact of the matter is, the State found it in the interest of justice to expunge his record of arrest and court proceedings, and the Air Force has not been given any reason to find the State in error.  AFI 36-2002 (Regular Air Force and Special Category Accessions) does not say that the expungement itself is to be negated and rendered impotent.  Based on the recruiter’s guidance, he enlisted before the expungement was complete.  Had his enlistment taken place just a few months later, when the expungement was complete, this matter would not have been considered in his eligibility.  This is confirmed by the relatively recent OSI background check, which shows that there is no criminal record.  As to the issue of guilt and “questionable moral character,” the Air Force is not in the position to assess this.  The whole question of guilt resided with the accuser and the State of VA, who both had all the information pertaining to his “conduct” and who both found it in the interest of justices to dismiss the charges and the State went further by honorably erasing all record of them.  The charges were dropped because they were bogus; no redress was necessary.  The State of VA was charged with mitigating his case and he believes that if the Air Force is truly interested in justice, it will respect the State’s fair and competent discernment.  Additionally, the Air Force has been given no compelling reason to preclude granting his reasonable request for his military records to justly reflect reality, that is, no criminal record.  If not corrected, the Air Force’s endorsement of the false affirmation in question could wrongly and unjustly inhibit the fulfillment of his true potential in his service to the Air Force.  The applicant’s complete submission, with attachment, is at Exhibit E.
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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.  We took notice of the applicant's complete submission in judging the merits of the case.  However, we agree with the opinion and recommendation of the appropriate Air Force office (HQ AFPC/JA) and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  In this respect, we note that the Air Force, as a federal executive agency, is not required to honor state court orders with respect to matters which are exclusively reserved to federal control, including the determination of enlistment eligibility and the maintenance of records related to such determination.  We therefore agree with HQ AFPC/JA that the information concerning the applicant’s arrest and the disposition of the civilian charges should be maintained as part of his military record.  In view of the above and absent evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this 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 this application in Executive Session on 31 July 2003, under the provisions of AFI 36-2603:

	            Panel Chair
	            Member
	            Member

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2003-01395.

   Exhibit A.  DD Form 149, dated 12 Apr 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/JA, dated 16 May 03.
   Exhibit D.  Letter, SAF/MRBR, dated 30 May 03.
   Exhibit E.  Letter from Applicant, dated 9 Jun 03, w/atch.

                                   
                                   Acting Panel Chair