RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02366 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: He be reinstated to active duty and receive an honorable discharge with current date, full back pay and retroactive benefits associated with an honorable discharge. APPLICANT CONTENDS THAT: Because he was under the age of 18 when he signed his DD Form 214, Report of Separation from Active Duty, the document is nullified, the separation is nullified, which means he is still on active duty with the Air Force. He was assaulted and raped by forced sodomy during basic training at Lackland Air Force Base, Texas while on dorm guard duty by a Training Instructor (TI). He informed the mental health counselor about what had occurred and was told to keep quiet it was his word against the TI. The counselor told him he would be court martialed for lying about his age to join the military. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 24 Aug 76. On 21 Sep 76, the applicant was released from active duty and was credited zero active service due to the fact that his enlistment was rendered void due to the fact he was under 18 years of age when he enlisted. The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C. AIR FORCE EVALUATION: AFPC/DPSOR recommends denial indicating there is no evidence of an error or an injustice. The applicant’s commander processed him for immediate separation upon learning that the applicant was only 16 years of age when he signed his enlistment contract to join the military. The applicant was under the legal age of enlistment therefore the contract was void and the applicant was processed for separation. The applicant’s DD Form 214 states his character of service was honorable; however, the enlistment was void so the applicant was not credited with any active service. Air Force Regulation 39-10, Section C states, “a person under 17 years of age is barred by law from enlistment.” An enlistment may be void if an individual is underage. He used falsified documentation to gain entry into the Air Force. The applicant was not subject to discharge under fraudulent entry because “Airman who are minors at the time of entry are not subject to discharge under this section if they misrepresent their age or consent of their parents or guardians.” The only option for the commander once he learned the facts about the applicant’s age was to void the enlistment. The applicant stipulates that his signature on the DD Form 214 invalidates his discharge, since he was a minor child when he signed it. In accordance with AFR 35-6, Separation Documents, the signature on the DD Form 214, is not required and the document can be completed with or without the applicant’s signature. Furthermore, this application is untimely; it has been more than 38 years since the applicant was discharged. A complete copy of the AFPC/DPSOR evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 27 Oct 14 for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office. FINDINGS AND CONCLUSIONS OF THE BOARD: After careful consideration of applicant’s request and the available evidence of record, we find the application untimely. Applicant did not file within three years after the alleged error or injustice was discovered as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603. Applicant has not shown a plausible reason for the delay in filing, and we are not persuaded that the record raises issues of error or injustice which require resolution on the merits. Thus, we cannot conclude it would be in the interest of justice to excuse the applicant’s failure to file in a timely manner. THE BOARD DETERMINES THAT: The application was not timely filed and it would not be in the interest of justice to waive the untimeliness. It is the decision of the Board, therefore, to reject the application as untimely. With regards to the contentions made by the applicant on his application we will report this to the appropriate authority. The following members of the Board considered AFBCMR Docket Number BC-2014-02366 in Executive Session on 19 Mar 15, under the provisions of AFI 36-2603: The following documentary evidence pertaining AFBCMR Docket Number BC-2014-02366 was considered: Exhibit A. DD Form 149, dated 2 Jun 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSOR, dated 9 Sep 14. Exhibit D. Letter, SAF/MRBR, dated 27 Oct 14.