RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-01940
		INDEX NUMBER:  110.00
	XXXXXXX	COUNSEL:  None

	XXXXXXX	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

His entry-level involuntary separation not be characterized as “fraudulent entry.”

His Reenlistment Eligibility (RE) code be changed from “2C,” “Involuntarily separated with an honorable discharge; or entry level separation without characterization of service,” to one that will allow him to enlist in the Army National Guard.

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APPLICANT CONTENDS THAT:

His recruiter and Military Entrance Processing Squadron (MEPS) representative told him to omit certain items from his enlistment paperwork.

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

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STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 16 Mar 04.  On 31 Mar 04, the Discharge Processing facility (DPRAA), notified the applicant’s squadron commander that it had interviewed the applicant as a possible erroneous entry for law violations.  DPRAA indicated that the applicant stated that he had informed his recruiter of the charges.  The squadron commander was advised that the applicant would require a waiver to remain in the Air Force.  On 2 Apr 04, the applicant was interviewed by his squadron commander as a possible erroneous entry for law violations and to determine if he would be recommended for a waiver.  The squadron commander recommended to the group commander on 8 Apr 04 that the applicant’s request for a waiver be disapproved.  On 13 Apr 04, the group commander disapproved the applicant’s request for a waiver.

On 16 Apr 04, the applicant’s training squadron commander notified him that he was recommending his discharge from the Air Force for fraudulent entry.  The reason for the action was the applicant’s history of law violations not documented on his SF 86, “Questionnaire for National Security Positions.”  The applicant acknowledged receipt of the notification memorandum on 16 Apr 04.  On 16 Apr 04, the squadron commander recommended to the group commander that the applicant be discharged for fraudulent entry with an entry-level separation.  On 22 Apr 04, the applicant notified the squadron commander that he had consulted counsel and submitted a written statement.  On 30 Apr 04, the wing staff judge advocate reviewed the discharge action against the applicant and found it legally sufficient to support the applicant’s separation.  They recommended that the applicant be separated with an entry-level separation.  On 3 May 04, the group commander approved the applicant’s separation from service with an entry-level separation.  The applicant was separated on 5 May 04 with a “2C” RE code.

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AIR FORCE EVALUATION:

AFPC/DPPRS recommends denial of the applicant’s request.  Based on the documentation in the master personnel records, the discharge was consistent with the procedural and substantive requirements of the discharge regulation.  The discharge was within the discretion of the discharge authority.  The applicant did not submit any evidence or identify any errors or injustices that occurred in the discharge processing and provided no facts warranting a change to his RE code.

The complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force evaluation, the applicant provides a detailed account, with names of those he claims advised him, of why he did not disclose the full list of traffic violations he had received.  The applicant states that although he signed the document stating that everything was factual, to the best of his knowledge, two other individuals also signed the form.  He states that he would be willing to take a polygraph or participate in any other action the Board would find necessary to get at the truth.

The applicant’s complete response 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 regarding the applicant’s request to remove “fraudulent entry into military service” as the narrative reason for his separation from service.  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 Air Force office of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting this portion of the relief sought in this application.

4.  Notwithstanding our determination above, sufficient relevant evidence has been presented to demonstrate the existence of error or injustice regarding the applicant’s request to change his RE code.  While we acknowledge that it was the applicant’s primary responsibility to ensure he provided complete and accurate information at the time of his enlistment, he has created an element of doubt regarding the role his recruiter may have played in his decision not to disclose all relevant information.  As such, we believe he should be given the benefit of the doubt and provided the opportunity to apply for reenlistment in military service.  We believe that the waiverable RE code of “3K” is appropriate because it allows the applicant to reenlist provided he meets required standards and the affected military service desires to grant him a waiver.  Therefore, we recommend that the applicant’s records be corrected as indicated below.

5.  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 issues involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that at the time of his separation on 5 May 2004, he was issued a Reenlistment Eligibility code of “3K.”

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The following members of the Board considered Docket Number BC-2004-01940 in Executive Session on 3 August 2004, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 26 May 04, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPPRS, dated 25 Jun 04.
     Exhibit D.  Letter, SAF/MRBR, dated 1 Jul 04.
     Exhibit E.  Letter, Applicant, dated 7 Jul 04.

AFBCMR BC-2004-01940

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to XXXXXXX, XXXXXXX, be corrected to show that at the time of his separation on 5 May 2004, he was issued a Reenlistment Eligibility code of “3K.”