RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04087

XXXXXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His DD Form 214, Report of Separation from Active Duty, Block 10, Reenlistment (RE) Code  2P, which denotes “Separated under AFR 39-10, Administrative Separation of Airmen, as marginal performer or to preserve good order and discipline, Basic Military Training (BMT) eliminees discharge due to erroneous enlistment, concealment of civilian convictions, etc), be changed to RE code 2Q, which denotes “Personnel [medically] retired or discharged under AFM 35-4, Administrative and Personnel Actions For Failing to Attain Physical Fitness Standards).

APPLICANT’S CONTENTIONS

He was discharged after having a seizure and needs his DD Form 214 to reflect the correct medical reason for his discharge.    

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

STATEMENT OF FACTS

The applicant is an honorably discharged airman basic (E-1).

On 13 Feb 79, the applicant initially entered the Regular Air Force.

According to a memorandum dated 28 Feb 79, the applicant requested he be discharged from the United States Air Force under the provisions of AFR 39-10.  In addition, he acknowledged a medical board determined that at the time of his entry into military service, he did not meet the minimum medial standards for enlistment in the Air Force.     

On 1 Mar 79, the applicant was honorably discharged under the provisions of AFR 39-10, para 3-8g, and ATCR 39-6, Discharge of a First-Term Airman who is not Medically Qualified for Enlistment.  

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

APPLICABLE AUTHORITY

AFR 35-16, USAF Reenlistment and Retention Program, dated 4 Feb 77:

Table 6-2 Conditions Barring Immediate Reenlistment (RE-2 Series) Item 14_Separated under AFR 39-10 as marginal performer or to preserve good order and discipline, Basic Military Training (BMT) eliminees discharge due to erroneous enlistment, concealment of civilian convictions, etc. Reenlistment Eligibility Status Code Entry in PDS is 2P (Exhibit B).

AIR FORCE EVALUATION

AFPC/DP2SSM recommends denying the application.  The applicant was discharged on 1 Mar 79 under AFR 39-10 with an honorable character of service after serving 19 days on active duty.  Specifically, applicant was separated under AFM 39-10 [sic] with a Separation Program Designator (SPD) of KFU which means “Voluntary Discharge: Member failed to meet Physical Standards for Enlistment, Authority AFR 39-10 Para 3-8g”.  

On 1 Mar 79, the separation authority directed the applicant be discharged under AFM 39-10 [sic], paragraph 3-8g.  The applicant’s RE code was updated to the correct RE code of 2P based on his discharge being under AFM 39-10 [sic].  To receive a RE code 2Q as applicant is asking he had to be separated under AFM 35-4, authority/guidance.  

The complete advisory opinion is at Exhibit C.

BCMR Medical Advisor defers to the assessment and recommendation of AFPC/DP2SSM, with respect to changing the applicant’s RE code, but offers additional rationale for the recommended denial.  Medical evidence has not been provided to explain the suspected reason, circumstances, type, frequency, history, or characterization of the applicant’s alleged seizure that would support further analysis of his petition.  However, the Medical Advisor noted that the applicant signed a memo, dated 28 Feb 79, attesting that he had been advised by his commander, that a medical board determined at the time of his entry into the military service, he did not meet minimum medical standards for enlistment.  

A service member may be administratively discharged, even though related to a medical condition, when, (1) in the case of an active duty member it has been determined that a disqualifying medical condition existed prior to service (EPTS) and has not been permanently aggravated by military service [and, under current law, when the member has not achieved at least 8 years of active service], and, (2), for the Reserve component member, when the disqualifying medical condition has been found to be non-duty related or Not In Line of Duty.  Therefore, under the presumption of regularity, referring to the medical board’s determination that at the time of entry into the military service, the applicant did not meet the minimum medical standards for enlistment, the Medical Advisor has no evidence to refute the decision to administratively separate the applicant.  

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 21 Jul 20 for comment (Exhibit E), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed.

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

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2SSM and the BCMR Medical Advisor and finds 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 of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery within the three-year limit, the Board does not find the assertion supported by a preponderance of the evidence.  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2019-04087 in Executive Session on 16 Sep 20:

, Panel Chair 
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 6 Aug 18.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SSM, dated 10 Apr 20.
Exhibit D:	Advisory opinion, BCMR Medical Advisor, dated 11 May 20.  
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 21 Jul 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings pertaining to Docket Number BC-2019-04087, as required by AFI 36-2603, paragraph 4.11.9.