AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD

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NAME OF SERVICE M•:MB•:R (LAST, FIRST MIDDLE  I NITIAL)	GRADE	AFSN/SSAN

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SRA

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PERSONAL  APPEARANCE	RECORD REVIEW
ADDRESS AND OR ORGANIZATION  OF COUNSEL

MEMBER  SITTING	HON
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GEN

UOTHC

OTl lER

DENY
x x x
x x

AOI.13 AOI.41

INDEX NUMBER

A62.00

1	ORDER APPOINTING THE BOARD

2	APPLICATION FOR REVI EW OF DISCHARGE
3	LETIER OF NOTI FICATION
4	BRIEF OF PERSONNEL FILE COUNSEL'S RELEASE TO Tl IF BOARD
ADDITIONAL EXHIBITS SUBMITTED AT TIME OF
PERSONAL  APPEARANCE

TAPE RECORDING OF PERSONAL APPEARANCE HE

HEARING DATE	CASE NUMBER

15 May 2007	FD-2006-00302

Case heard in Washington, D.C.

Advise applicant of the decision of the Board, and the right to submit an application to the AFBCMR Names and votes will be made available to the applicant at the applicant's request.

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TO,	FROM:
SAF/MRBR
550 C STREET WEST, SUITE 40
RANDOLPH AFB, TX 781 50-4742

SECRETARY OF TllF. AIR FORCF. PF.RSONNF.L CO!INCIL AIR FORCE DISCHARGE  REVIEW  BOARD
1535 COMMAND DR, EE WING, 3RD FLOOR
ANDREWS AFB, MD 20762-7002

Al<'HQ FORM 0-2077, JAN 00	(EF-V2)	Previous edition will be used

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE	CASE NLIMBRR

FD-2006-00302	

GENERAL: The applicant appeals for upgrade of discharge to honorable, to  change  the  reason  and authority for the discharge, and to change the reenlistment code.

The applicant appeared and testified before the Discharge Review Board (DRB), without counsel,  at Andrews AFB on 15 May 2007. The following witness also testified on the applicant's behalf: the applicant's  wife.

The following additional exhibits were submitted at the hearing:
Exhibit #5: Honorable Discharge Certificate from the Army dated 7 Jan 88 Exhibit #6: Court documents regarding concealed weapon conviction June 1989
Exhibit #7: Court letter, 18 Apr 02 reporting records for 1989 have been destroyed Exhibi t #8: Court documents regarding a domestic assault charge May 1992 (dismissed)

The attached brief contains available pertinent data on the applicant and the factors leading to the discharge.

FIN DINGS: Upgrade of discharge, change of reason and authority for discharge, and change  of reenlistment code are denied.

ISSUE: The applicant contends his discharge was improper because it was based on inadeq uate evidence and that he was not afforded an administrative discharge board hearing. The applicant was administrativel y separated with a general discharge under provisions for fraudulent enlistment based on the applicant's failure to properly and fully disclose information regarding his past police record at the time of initial recruiter interview documented on NGB Form 598 Prospect Interview Record, and during subsequent completion of SF 86 Security Questionnaire Worksheet. The applicant contends he did not conceal  any  information regarding his past police record and followed his recruiter's advice regarding completion of the SF 86. The NGB Form 598 states ''No" in response to the question "Law Violations". Subsequent to the completion of this form, a conviction for DWI three years earlier was revealed and the applicant was granted a waiver for this offense. Two months following entry into the Air National Guard, the applicant finalized and submitted his SF 86 Security Questionnaire  Worksheet  reporting  a misdemeanor  conviction  for carrying a concealed
,gun. During background checks it was discovered  that there were several law violations including a felony weapons charge that the applicant had not properly reported. At the time of discharge action, the applicant, through appointed  counsel, argued that this felony charge had occurred 14 years earlier, was dismissed in court, and that his omission was not deliberate. In response to discharge action, the applicant requested an administrative discharge board hearing (eligible due to prior service) and requested copies of the evidence fom1ing the basis of discharge. In testimony, the applicant claims he and his counsel were not provided any additional evidence, but never the less, the applicant through counsel subsequently withdrew the req uest for a board hearing contingent upon no less than a general discharge. The DR B noted that additional supporting documentation (such as a report of investigation, interview or statement from the recruiter) regarding the applicant's fraudulent enlistment was not available.  However,  after  extensive  questioning  and  testimony under oath, the applicant did not provide any evidence or testimony that convinced the Board that he had properly revealed all background infonnation at the time of enlistment or to overcome the presumption of regularity. The Board noted that the SF 86 was not completed  and submitted u ntil after he entered active service and therefore could not  properly fonn the basis for fraudulent enlistment, however, the Board did consider it as supporting evidence that the applicant did not fully disclose his legal history to recruiting authorities prior to enlistment. The applicant contended he was not afforded an administrative  discharge board and asserted that it was going to take 2 years to meet a board. The Board noted that the applicant was provided and consulted legal counsel during his discharge process and wai ved his right to an administrati ve	

board hearing contingent upon no less than a general discharge.  The Board thus concluded he was properly afforded an opportunity for an administrative board hearing at the time of discharge.

CONCLUSIONS: The Discharge Review Board concludes that the discharge was consistent with the procedural and substantive requirements of the discharge  regulation and was within the discretion of the discharge authority and that the applicant was provided full administrative due process.

In view of the foregoing findings, the Board further concludes that there exists no legal or equitable basis for upgrade of discharge, thus the applicant's discharge should not be changed.

Attachment: Examiner's Brief