RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00555 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: 1. His DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected to reflect the information contained in his original DD Form 214. 2. By letter, dated 27 Jan 13, the applicant amended his request to change his DD Form 214 to reflect a medical disability with an honorable character of service to coincide with his Department of Veterans Affairs (DVA) ratings. _________________________________________________________________ APPLICANT CONTENDS THAT: His original signed DD Form 214 differs from the one currently filed in his personnel records. He was given a general discharge from the Air Force for Fraudulent Enlistment after 2 years, 6 months, and 3 days for not stating that he had been in trouble for drug possession. His case was placed on a deferred entry of judgment to be dismissed and never resulted in a conviction. Because the case was not a conviction and it was to be dismissed by the court, his recruiter stated the initial disclosure and all additional questions regarding drug use should all be listed as "NO." He was convinced by his recruiter that because there was no conviction, he was not concealing or falsifying information. Unfortunately, he was young and too naive to know that was not the correct course of action. At the time of his discharge, he had missed a significant amount of work and had just undergone a wrist surgery that has left him with only partial movement of his left wrist (classified as a 10% disability with the Department of Veterans Affairs (DVA). After he was discharged, he was advised by a lawyer at Barksdale Air Force Base that "a waiver should have been issued for the Fraudulent Enlistment" and that it "probably had to do with my medical conditions.” He was recently diagnosed with Hypothyroidism which has also been rated by the DVA at 10%. The injuries he suffered while on active duty have resulted in a 20 percent disability rating from the DVA. Since his discharge he has graduated Cum Laude with a B.S. in Engineering and continues to volunteer in his community. He was actively involved in school as the student chapter president of the International Society of Automation, a member of the Associated Engineering Student Body and provides other post- service information. In support of his request, the applicant provides a personal statement, copies of his DD Form 214, AF Form 422, Physical Profile Serial; his Air Force Achievement Medal Certificate, DVA Rating Decision memorandum, college diploma and transcripts, newspaper article and other various documents associated with his request. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 18 Oct 00, the applicant enlisted in the Regular Air Force. On 1 Apr 03, the applicant was notified of his commander’s intent to recommend he be discharged from the Air Force under the provisions of AFI 36-3208, Administrative Separation of Airmen. The applicant acknowledged receipt of the discharge notification and after consulting with counsel, submitted a statement on his own behalf. For a full accounting of the offenses, please see the commander’s notification letter at Exhibit B. The Staff Judge Advocate reviewed the case and found it legally sufficient to support discharge and recommended the applicant receive a general (under honorable conditions) discharge with the offer of probation and rehabilitation. On 18 Apr 03, the discharge authority approved the applicant’s discharge. On 21 Apr 03, the applicant was discharged for fraudulent entry into military service with service characterized as general (under honorable conditions). He served two years, six months and 3 days of total active service. On 9 Sep 05, the DVA granted the applicant service-connection for status post left wrist ganglion cyst, with tender scare and limited range of motion and hypothyroidism with a 20 percent disability rating. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which are attached at Exhibits C and D. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOR recommends denial of the applicant’s request to change his character of service, separation code, reentry code, and narrative reason for separation. The applicant should not have been allowed to join the Air Force because of pleading guilty to possession of drugs. Had the Air Force known of this condition at the time of his enlistment, he would not have been allowed entry into the military. Based on the documentation on file in the applicant’s personnel records, the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority. The base legal office reviewed the case and found it legally sufficient to support the discharge. DPSOR states that the applicant did not submit any evidence or identify any error or injustices that occurred in the discharge processing. He provided no facts warranting an upgrade to his character of service, separation code, and narrative reason for separation. The complete DPSOR evaluation is at Exhibit C. The BCMR Medical Advisor recommends denial of the applicant’s request for a medical disability rating. The Medical Advisor states that based upon the supplied medical documentation, there is no evidence to support an injury or medical condition that interfered with the applicant’s military service to the extent or sustained duration that warranted a Medical Evaluation Board (MEB) and processing through the military Disability Evaluation System (DES) for a medical separation or retirement. The applicant was able to reasonably perform the duties of his office, grade, rank, and rating. The Medical Advisor opines that the military departments, operating under Title 10, United States Code (USC), can only offer compensation for an illness, disease, or injury that is the cause of career termination; and then only to the degree of impairment present at the time of separation and not based on future occurrences. Whereas, operating under a different set of laws, Title 38, USC, the DVA is authorized to offer compensation for any medical condition determined service-incurred, without regard to its proven or demonstrated impact upon a service member’s retainability, fitness to serve, or narrative reason for release from military service. This is the reason why an individual may be released from military service for one reason, yet receive compensation ratings from the DVA for conditions that were service-connected, but not found militarily unfitting for continued military service. The complete BCMR Medical Advisor evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 20 Apr 13, for review and comment within 30 days (Exhibit E). As of this date, no response has been received by this office. _________________________________________________________________ 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. We took notice of the applicant's complete submission in judging the merits of the case; however, we find no basis to warrant changing his DD Form 214 to reflect the information contained in his original DD Form 214. In this respect, we note that on 18 Mar 13, AFPC/DPSIPV notified the applicant that his DD Form 214 issued at the time of discharge was determined to be incorrect and was voided and reissued on 20 May 03. Specifically, DPSIPV noted that time spent in an enlistment determined to be fraudulent and has been specifically terminated by reason of fraud is not creditable service in accordance with AFI 36-3202, Separation Documents and the Department of Defense (DoD) Financial Management Regulation Volume 7A, chapter 1. Therefore we find no basis to disturb the record. Regarding his request to change his DD Form 214 to reflect an honorable character of service, based on the available evidence of record, it appears the discharge was consistent with the substantive requirements of the discharge regulation and within the commander's discretionary authority. The applicant has not provided sufficient evidence which would lead us to believe the characterization of the service was contrary to the provisions of the governing regulation, unduly harsh, or disproportionate to the offenses committed. As such, we find no evidence of an error or injustice that occurred in the discharge processing. Moreover, there has been no showing that he had an unfitting medical condition that would have required his processing through the Military Disability Evaluation System – a prerequisite to a medical discharge. In the interest of justice, we considered upgrading the discharge based on clemency; however, we do not find the evidence presented is sufficient to compel us to recommend granting the relief sought on that basis. Accordingly, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion the applicant has failed to sustain his burden that he has been the victim of an error or injustice. In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. _________________________________________________________________ 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. _________________________________________________________________ The following members of the Board considered Docket Number BC-2013-00555 in Executive Session on 19 Nov 13, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 28 Jan 13, w/atchs. Exhibit B. Applicant’s Available Master Personnel Records. Exhibit C. Letter, AFPC/DPSOR, dated 4 Apr 13. Exhibit D. Letter, BCMR Medical Advisor, dated 18 Apr 13. Exhibit E. Letter, SAF/MRBR, dated 20 Apr 13. 4 5 6