RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-01335

	COUNSEL: 

	HEARING: YES

APPLICANT REQUESTS THAT:

His discharge be invalidated and that he be compensated $3,850,000 in lost wages.

APPLICANT CONTENDS THAT:

He was a 17-year old child when he decided to enter the Air Force; therefore, parental consent was required before he was allowed to enlist.  Neither he, nor his mother was informed that he could be separated for occasional bedwetting.  Nevertheless, he was 17 years old at the time of his discharge, yet the Air Force did not require his mother to sign the discharge documents.  A child cannot ratify a discharge contract; therefore, his discharge should be invalidated.  He intended to become a fighter pilot and had he been allowed to remain in the Air Force, he would have accrued over 38 years of active duty service, which amounts to approximately $3,850.000.  The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The applicant was discharged from the Regular Air Force in the grade of airman basic (E-1).

On 2 Mar 79, the applicant was notified of his commander’s intent to recommend that he be discharged under the provisions of AFR 39-10, Administrative Separation of Airmen, for Enuresis, a condition that interferes with the performance of duty.  The applicant acknowledged receipt and indicated that he declined retention and military legal counsel.  He also elected not to submit statements in support of retention.  On 7 Mar 79, the discharge authority approved the recommendation.

On 13 Mar 79, the applicant was honorably discharged and was credited with 24 days of active service.  His separation code and corresponding narrative reason for separation is JFV (Conditions that Interfere with Military Service – Not Disability – Other).

On 17 Oct 17, a request for post-service information was inadvertently forwarded to the applicant for review and comment within 30 days (Exhibit C).  The applicant replied on 13 Nov 17, reiterated his initial contentions regarding his invalid discharge, and argued that he did not request clemency.  The applicant’s complete response is at Exhibit D.  For more information, see the excerpt of the applicant’s records at Exhibit B and the advisory at Exhibit E.

AIR FORCE EVALUATION:

AFPC/DP2TSM recommends denying the application.  The applicant has not filed a timely application.  It has been approximately 39 years since his discharge and he did not provide a valid reason for the failure to timely file.  Furthermore, the discharge was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority.  The applicant contends that he signed a “contractual agreement” to separate from the Air Force, which should be invalidated because he was 17 years old at the time of his separation.  However, he was administratively discharged and any signatures he provided were administrative in nature.  Administrative discharges are not contractual agreements.  The applicant signed a letter acknowledging receipt of the discharge notification and his signature on the DD Form 214, Report of Separation from Active Duty, was required to verify that information on the DD Form 214 was accurate.  The complete advisory is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 7 Jan 18, for comment (Exhibit F), and the applicant replied on 27 Feb 18 and 22 May 18.  He continues to argue that his discharge should be invalidated because he was underage and should not have been allowed to sign a contractual agreement to separate from the Air Force.  Furthermore, as a minor he should not have been allowed to decline counsel during the separation process; therefore, his constitutional right to counsel was violated.  In addition, contrary to AFPC/DP2STM’s recommendation, his request is timely because ignorance of the law is an excuse for his failure to timely file.  He requests permission to address the Board and requires transportation to attend a Board hearing.  The applicant’s complete submission, with attachment, is at Exhibit G. 

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).  While the applicant asserts a date of discovery less than three years before the Board’s receipt of the application, the Board does not find the assertion reasonable.  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.

4.  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 the Board’s understanding of the issues involved.

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-2017-01335 in Executive Session on 28 Jun 18:

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 22 Mar 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Post Service Clemency Letter, w/atch, dated 17 Oct 17.
Exhibit D:	Applicant’s response, dated 13 Nov 17.
Exhibit E:	Advisory opinion, AFPC/DP2STM, dated 5 Jan 18.
Exhibit F:	Letter, SAF/MRBC, dated 7 Jan 18. 
Exhibit G:	Applicant’s responses, dated 27 Feb 18 and 22 May 18.

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