RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-01482

XXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His record be corrected to remove his narrative reason of “Fraudulent Entry Into Military Service.” 

APPLICANT’S CONTENTIONS

He struggled with alcoholism while in service and was dismissed shortly after receiving a driving under the influence (DUI) on base. He served honorably and has stopped drinking, but now suffers from multiple sclerosis.  He is unsure why his discharge was documented as fraudulent.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman first class (E-3).

On 18 Jul 00, the applicant entered the Regular Air Force.

On 1 Apr 03, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of AFPD 36-32, Military Retirements and Separation, and AFI 36-3208, Administrative Separation of Airmen, paragraph 5.13.4., for Fraudulent Entry. The specific reasons for the action were as follows:

a.	On 31 Jan 02, a security clearance investigation determined that upon entry into the Air Force, the applicant failed to disclose he had civilian criminal charges, specifically on 3 Jun 00, the applicant was charged with aggravated assault (class 3 felony).

b.	On 22 May 97, 3 Jun 00 and 31 Dec 00, the applicant was charged with alcohol related incidents.

On 1 Apr 03, the applicant acknowledged receipt of the discharge action and on 7 Apr 03, he consulted counsel and provided statements for consideration.

On 17 Apr 03, the discharge authority approved the recommendation.

On 22 Apr 03, the applicant received an Under Honorable Conditions (General) discharge with narrative reason, “Fraudulent Entry Into Military Service,” and was credited with 2 years, 9 months and 5 days of active service.

On 10 Jan 08, the Air Force Discharge Review Board (AFDRB) denied the applicant’s request to upgrade his discharge, change reason and authority for discharge, and change the reenlistment code.  The DRB determined the discharge was consistent with the procedural and substantive requirements of the discharge regulation, was within the discretion of the discharge authority and the applicant was provided full administrative due process.

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

APPLICABLE AUTHORITY

On 3 Sep 14, the Secretary of Defense issued a memorandum providing guidance to military correction boards regarding liberal consideration for Vietnam veterans claiming Post Traumatic Stress Disorder PTSD (Hagel Memo).  In addition, time limits to reconsider decisions would be liberally waived for applications covered by this guidance. 

Subsequent guidance expanded liberal consideration protections to include all veterans who requested a modification of their discharge, to include character of service, narrative reason for discharge and reenlistment code, due in whole or in part to any mental health condition rather than just PTSD or Traumatic Brain Injury, and included those veterans who were victims of sexual assault or sexual harassment.  Liberal consideration would be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on the aforementioned conditions.

Under Consideration of Mitigating Factors, it is noted that PTSD is not a likely cause of premeditated misconduct.  Correction Boards will exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct.  Liberal consideration does not mandate an upgrade.  Relief may be appropriate, however, for minor misconduct commonly associated with the aforementioned mental health conditions and some significant misconduct sufficiently justified or outweighed by the facts and circumstances.

Boards are directed to consider the following main questions when assessing requests due to mental health conditions including PTSD, TBI, sexual assault, or sexual harassment:

a. Did the veteran have a condition or experience that may excuse or mitigate the discharge?
b. Did that condition exist/experience occur during military service?
c. Does that condition or experience actually excuse or mitigate the discharge? 
d. Does that condition or experience outweigh the discharge?

Copies of all guidance memoranda can be found at Exhibit F.

AIR FORCE EVALUATIONS

BCMR Psychological Advisor finds no evidence his DUI or mental health condition mitigated his discharge and does not outweigh his original discharge.  A review of the applicant’s records found no evidence of fraudulent entry based on a mental health condition due to no service treatment records or evidence of any reported mental health issues at the snapshot in time of service.  The Board may elect to apply liberal consideration to the applicant’s requests due to a contended mental health condition of alcohol issues.

The complete advisory opinion is at Exhibit C.

AFPC/DP2SSR recommends denying the application.  The discharge documentation is absent from the record.  Based on the presumption of regularity, the commander and base discharge authority would have received documentation from a competent authority to support separation and the character of service.  Based on the presumption of regularity, the discharge authority would have determined that the negative aspects of the applicant’s misconduct outweighed any positive aspects of the applicant’s military career and would have directed discharge with the lesser character of service.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS

The Board sent copies of the advisory opinions to the applicant on 2 Dec 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 the BCMR Psychological Advisor and AFPC/DP2SSR and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board obtained a copy of the applicant’s discharge documentation and concludes the discharge was consistent with the substantive requirements of the discharge regulation and was within the commander’s discretion.  Nor was the discharge unduly harsh or disproportionate to the offenses committed.  The Board considered liberal consideration and finds there is no evidence his contended mental health condition mitigated his discharge.  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).  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-2020-01482 in Executive Session on 17 Mar 21:

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 25 Feb 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Notification of Clarifying Guidance, dated 24 Apr 20.
Exhibit D:	Advisory opinion, BCMR Psychological Advisor, dated 17 Nov 20.
Exhibit E:	Advisory opinion, AFPC/DP2SSR, dated 23 Nov 20.
Exhibit F:	Notification of advisory, SAF/MRBC to applicant, dated 2 Dec 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings pertaining to Docket Number BC-2020-01482, as required by AFI 36-2603, paragraph 4.11.9.