RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02974

XXXXXXXXXXXX	COUNSEL:   XXXXXXXXXXXX

	HEARING REQUESTED:  NO 

APPLICANT’S REQUEST

His DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, be corrected to reflect a Reenlistment (RE) Code of RE-1 instead of RE-2.

APPLICANT’S CONTENTIONS

He had several conversations with the Air Force recruiter regarding enlisting.  Topics included, but were not limited to, his education, interests, criminal history (if any), and what to expect at basic training.  He had no criminal record but did admit that he had smoked marijuana, specifically telling the truth about drug usage to the recruiter.  The Air Force recruiter told him not to mention his drug use, and specifically directed him to lie about his drug usage and falsify a government document by listing “no” under drug usage.  It was not evident why the recruiter told him to do so.  He was 18 years old, impressionable, and respected what adults told him to do.  He signed it with the answer to drug usage as no, just as the recruiter told him to do, and relied on the honesty and integrity of the recruiter, who failed him.

He mentioned that he had used drugs prior to entering the Air Force during a conversation with other recruits.  When questioned by his drill instructor, he again told the truth.  This is not about taking drugs during basic training.  He is not sure why a comment on previous drug usage with no signs of current drug use or misconduct would cause him to be referred to an Air Force Drug officer by his drill instructor.

The Air Force Drug officer interviewed him, and after a short discussion that could best be described as condescending and threatening, he was informed he had two choices: (1) six months hard labor, or (2) immediate discharge.  The Air Force Drug officer’s actions were not in accordance with law or Air Force regulations.  This proposed action comes under administrative law.  An offer of six months hard labor can only be handed out under court-martial jurisdiction as a criminal matter; not an option for administrative remedy.  With one of two choices eliminated, it left him with no real choice at all.  This amounts to a violation of his due process rights and as such is illegal, leaving a “premia facia” (sic) case for subsequent remediation to upgrade his Reenlistment code.

The Air Force Drug officer should have obtained the facts surrounding the conversation, and determined if he was impaired at the time of the interview.  The applicant should have been sent to drug rehab or classes to determine if he was likely to be successful in the Air Force, then returned to basic training.

The applicant was made aware of his due process rights as part of an appeal filed with the Department of Veterans Administration (DVA).  This conversation took place on 24 Aug 20.  Prior to that, he had no knowledge that the Air Force discharging him and assigning an RE-2 code was both illegal and violated his due process rights.  The time between when he became aware and his application was seven days, a timely response to the injustice perpetrated upon him.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 4 Jan 72, according to 3720th Basic Military School/CCHON memorandum, Recommendation for Separation/Retention, a request was submitted to immediately discharge the applicant for admitting to smoking marijuana 20 times (1969-1971), using Lysergic Acid Diethylamide (LSD) 3 times (1969-1971), and Amphetamines 2 times (1971); and Rule #3 – has history of experimenting with LSD.

On 4 Jan 72, the applicant’s commander recommended he be discharge under the provisions of Air Force Regulation 30-19, Table 1, Rule 3, Unacceptable for military service.

On 4 Jan 72, 3720th Basic Military School/CHH, Letter of Notification, was served on the applicant.  The applicant acknowledged receipt, declined to make a statement or submit a rebuttal on his own behalf, and declined to have his case evaluated by a field grade officer.

On 6 Jan 72, the discharge authority approved the discharge, with an honorable service characterization and Reenlistment Code: RE-2.

On 10 Jan 72, the applicant was furnished an honorable discharge, with Reason and Authority: AFM 39-10, para 3-8Q, COG; ATCR 39-2 and Lackland TC Form 42, dated 6 Jan 72, SDN: 41G, Reenlistment Code: RE-2, and credited with 1 month, 1 day 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/DP2SSM recommends denying the application.  There is no evidence of an error or injustice in reference to the applicant’s RE code based on the documentation provided by the applicant and analysis of the available facts.

The applicant was involuntarily discharged on 10 Jan 72, after serving one month and one day of service, with an honorable character of service.  On 6 Jan 72, the discharge authority signed the Lackland TC Form 42, Recommendation for Discharge, approving the applicant’s involuntary discharge under AFM 39-10, paragraph 3-8q, with an honorable character of service and an RE Code 2.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 7 Jul 21 for comment (Exhibit D), 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 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-2020-02974 in Executive Session on 6 Oct 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 4 Sep 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2SSM, dated 28 Jun 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 7 Jul 21.

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