RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-00461

	COUNSEL: NONE

	HEARING: NO

APPLICANT REQUESTS THAT:

His entry-level separation be changed to a medical discharge.

APPLICANT CONTENDS THAT:

His discharge is unjust.  He should not have received an entry-level separation because his ACL tear occurred during training and he was on active duty for more than 180 days.  Instead, he should have received a medical discharge.  He attempted to reenlist three times, but an Air Force recruiter informed him he was ineligible and the Veterans Affairs told him he was not eligible for benefits to help pay for his surgery.  The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 19 March 2008.

According to Standard Form 600, Chronological Record of Medical Care, dated 9 July 2008, the applicant was diagnosed with an ACL tear [knee injury] upon his arrival at Basic Military Training School.  Based on the signs, symptoms, and reports of the applicant, the medical provider opined that the applicant had this disqualifying condition prior to enlistment.  The applicant was informed that he could reapply for enlistment after the condition was resolved.  The treating medical provider further stated that the condition was not permanently aggravated by training beyond the normal progression of the ailment and recommended the applicant be administratively separated and to follow-up with a civilian provider.

On 9 July 2008, the applicant indicated that he did not desire a medical waiver.

AETC Form 125a, Record of Administrative Training Action, dated 11 July 2008, indicates the applicant was eliminated from training due to a knee injury with an extended recovery prognosis.

On 4 August 2008, the applicant was notified of his commander’s intent to recommend that he be discharged from the Air Force under the provisions of AFPD 36-32, Military Retirements and Separations and AFI 36-3208, Administrative Separation of Airmen, paragraph 5.14 (Erroneous Enlistment) with an entry-level separation.  The specific reason for this action was that the applicant was diagnosed with an ACL tear, which existed prior to service, and was cleared by the Military Entrance Processing Station.  However, had the Air Force known of this condition prior to his enlistment he would not have been allowed entry into the military.

On 4 August 2008, the applicant acknowledged receipt of the discharge notification, waived his right to consult with counsel and to submit statements in his behalf.

On 11 August 2008, the assistant staff judge advocate found the discharge legally sufficient and recommended the applicant receive an entry-level separation.

On 25 August 2008, the discharge authority approved the recommendation and directed the applicant be discharged without probation and rehabilitation.

On 26 August 2008, the applicant received an entry-level separation, with uncharacterized service.  His narrative reason for separation is “Erroneous Entry (Other)” and he was credited with 5 months and 8 days of active service.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION:

AFPC/DP2STM recommends denying the application.  Medical authorities determined that the applicant’s pre-existing ACL tear would have precluded him from joining the Air Force had this condition been made known.  Furthermore, the injury would require surgery and extended recovery.  Consequently, the applicant was unable to continue training and it was determined he would be administratively separated due to his inability to meet training requirements.  The applicant was only on active duty for 108 days when the discharge action was initiated; therefore, in accordance with AFI 36-3208, he must receive an entry-level separation.  Airmen are given entry-level separation with uncharacterized service when separation is initiated in the first 180 days of continuous active service.  The Department of Defense determined if a member served less than 180 days of continuous active service; it would be unfair to the member and the service to characterize their limited service.  The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 4 October 2017 for comment (Exhibit D), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was not timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2STM and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  Moreover, the applicant has offered no plausible reason for the delay in filing the application.  The Board finds the application untimely and concludes it would not be in the interest of justice to excuse the delay.  Therefore, the Board recommends against correcting the applicant’s records.

THE BOARD RECOMMENDS THAT:

The applicant be informed the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2017-00461 in Executive Session on 17 May 2018:

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 5 January 2017.
Exhibit B:	Documentary evidence, including excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2STM, dated 3 October 2017.
Exhibit D:	Notification of Advisory, AFBCMR to applicant, dated 4 October 2017.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.