RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-02204
            INDEX CODE:  110.02, 110.03
                              126.04, 131.10

            COUNSEL:  TIM S. McCLAIN

            HEARING DESIRED:  YES

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  She be placed back on active duty in  the  Air  Force  to  complete  her
remaining period of service of one year and three  months  or  alternatively
be credited with her remaining obligated service with  pay  and  allowances.
The alternatives will be elected at applicant’s discretion.

2.  Her DD Form 214 (Certificate of Release or Discharge From  Active  Duty)
for fraudulent entry be rescinded/replaced with an  honorable  discharge  at
the expiration of her obligated service and that she be  credited  with  the
remaining obligated service with pay and allowances.

3.  Her  promotion  to  the  grade  of  first   lieutenant   be   reinstated
retroactively to 3 July 1996.

4.  Her Article 15 be expunged from her record.

5.  In counsel’s 18 February 2000 rebuttal to the Air Force evaluations,  he
further requests that the applicant be retroactively promoted to  the  grade
of Captain, effective 3 July 1999, and to receive  all  entitled  back  pay,
allowances and severance pay.

________________________________________________________________

APPLICANT CONTENDS THAT:

Through  counsel,  applicant  contends  the  failure  to  promote  her   was
arbitrary and capricious, coming only one week prior to  her  date  of  rank
and based on fatally flawed accusations that resulted in an  unfair  Article
15 hearing and punishment.   She  elected  not  to  appeal  the  Article  15
because she assumed that she was being allowed to resign  immediately.   The
nonjudicial punishment (NJP)  awarded,  which  resulted  in  her  not  being
promoted to the grade of first lieutenant  and  ultimately  being  processed
for administrative discharge, was unjust and not  supported  in  law.    She
was never informed that her processing for  administrative  discharge  could
result in a loss of all creditable service and is a violation of  Air  Force
regulations and due process rights.  She claims  that  had  she  been  fully
informed by the Air Force of the  possibility  of  receiving  no  creditable
service through the processing, she would  have  submitted  her  resignation
and received an honorable or general (under honorable conditions)  discharge
with full credit for time served.  Her commission  was  not  fraudulent  and
the entire incident  related  to  her  commissioning  was  the  Air  Force’s
mistake.  In February 1994, when she executed AF Form  24  (Application  for
Appointment as Reserve of the Air Force  or  USAF  Without  Component),  she
fully expected to have all  degree  requirements  for  Chemical  Engineering
completed by 6 May 1994, and Religion shortly thereafter.

Applicant’s complete submissions are attached at Exhibit A.

Additionally, on 5 Nov 99, counsel provided an amended petition  to  Tab  A,
B,  and  C  (see  Amended  Request).   Revised  petition  is  cited  in  the
applicant’s request.

________________________________________________________________

STATEMENT OF FACTS:

On 28 February 1994, applicant signed an AF Form 24 which  was  prepared  by
the Air Force  Reserve  Officer  Training  Corps  (AFROTC)  personnel.   The
application indicated that the applicant had graduated from  the  University
of Southern California (USC) with a  Bachelor  of  Science  (BS)  degree  in
Chemical Engineering.

On 6 May 94, the applicant was commissioned a second lieutenant in  the  Air
Force Reserve.   On  1  September  1994,  she  was  voluntarily  ordered  to
extended active duty for an indefinite period.

Shortly after receiving her commission, the  applicant  received  orders  to
report for duty at the Human Systems Center (HSC),  Brooks  AFB,  Texas,  no
later than 4 Sep 94.

Applicant’s Officer Performance Report (OPR) profile follows:

        PERIOD ENDING          OVERALL EVALUATION

          31 Aug 95              Meets Standards
          31 Aug 96            Does Not Meet Standards
                 (Referral Rpt)

On 19 June 1996, the applicant was notified of  her  commander’s  intent  to
impose nonjudicial punishment under Article 15,  Uniform  Code  of  Military
Justice (UCMJ), for communicating a threat to  kill  a  fellow  officer  and
conduct unbecoming to an  officer.   The  applicant  consulted  counsel  and
after a requested delay, accepted nonjudicial punishment on 19 Jul 96.   The
Center Commander found that the applicant had committed one or more  of  the
offenses alleged and reprimanded the applicant.  She initially appealed  the
punishment but later withdrew her decision to appeal on 7 August 1996.

The applicant’s Article 15 action was filed in her selection record  and  as
a result, her promotion to first lieutenant was denied.

On 26 September 1996, the Center Commander initiated  involuntary  discharge
action against the applicant  in  accordance  with  AFI  36-3206,  paragraph
3.6.7,  for  falsifying  an  official  document.   The  notification  letter
alleged that the applicant “falsified” the AF Form 24 when  she  signed  the
document in  February  1994.   The  notice  further  stated  that,  on  that
document, the applicant claimed to have graduated with a degree in  Chemical
Engineering from the USC and that the applicant knew this  statement  to  be
false.  The applicant, through counsel, applied for, and received,  a  delay
in  her  response.   In  October  1996,  the  applicant  responded  to   the
allegation and declined to resign her commission.

On 5 December  1996,  the  discharge  action  was  amended  to  include  two
additional bases for discharge; the applicant’s communication  of  a  threat
to kill, for which she received Article 15 punishment, and  the  applicant’s
communication of the same threat to another officer.

On 4 March 1997, a Probationary Officer Discharge Board (PODB)  convened  at
Brooks AFB to consider the bases for discharge against the  applicant.   The
board found that the applicant did not communicate a threat to kill nor  did
she communicate the same threat to another  officer.   The  board,  however,
did find that, on 28 February 1994,  the  applicant  falsified  an  official
document, the AF Form 24, that indicated she  had  graduated  from  the  USC
with a Chemical Engineering  degree.   Based  on  its  findings,  the  board
recommended that  the  applicant  be  discharged  with  an  under  honorable
conditions  (general)  discharge.   On  8 March  1997,  the  applicant   was
officially notified of the board’s decision.

On 25 April 1997, the Air Force Personnel Board (AFPB) reviewed  the  PODB’s
decision and agreed that the applicant should not be  retained  in  the  Air
Force.  The AFPB recommended that she be discharged with an under  honorable
conditions (general) discharge from all appointments she  held  in  the  Air
Force pursuant to AFI 36-3207.

On 1 May 1997, the Director, Air Force Review Boards  Agency  advised  that,
by direction of the President, the Secretary of the Air Force directed  that
the applicant be discharged from all appointments she holds  in  the  United
States Air Force and that  she  be  issued  an  under  honorable  conditions
(general) discharge.

On 16 May 1997, applicant was involuntarily discharged under the  provisions
of AFI 36-3207 (Fraudulent Entry Into Military  Service)  in  the  grade  of
second lieutenant with an under honorable  conditions  (general)  discharge.
She was credited with 3 years, 8  months,  and  1  days  of  prior  inactive
service, and no active duty service.

The applicant’s submission indicates that she was awarded a BS  in  Chemical
Engineering, a Bachelor of Arts (BA) in Chemistry,  and  a  BA  in  Religion
from USC on 8 May 1998.

________________________________________________________________

AIR FORCE EVALUATION:

On 29 September 1999, the Separations Branch, HQ AFPC/DPPRS,  reviewed  this
application for separation processing  and  indicated  that  there  were  no
errors or irregularities  causing  an  injustice  to  the  applicant.   They
stated the discharge complies with directives in effect at the time  of  her
discharge.  Her DD  Form  214  is  correct  and  the  narrative  reason  for
separation is in accordance with Department of Defense (DOD) and  Air  Force
policy.  She was provided a qualified Air Force lawyer for her  defense  and
assistance in the case.  She elected not to tender her resignation  in  lieu
of discharge action and  that  decision  resulted  in  the  convening  of  a
Probationary Officer Discharge Board (PODB),  which  did  not  rule  in  her
favor.  The records  indicate  her  service  was  reviewed  and  appropriate
action was taken.  Applicant did not identify any  specific  errors  in  the
discharge processing or provide facts that  warrant  her  return  to  active
duty or that she be credited with her remaining obligated service  with  pay
and  allowances.   Accordingly,  DPPRS  recommends  applicant’s  request  be
denied.

A complete copy of the Air Force evaluation is attached at Exhibit C.

On 8 December 1999,  the  Staff  Judge  Advocate  (SJA),  HQ  AFPC/JA,  also
considered this application and provided a legal review.  JA recommends  the
Board grant the applicant’s request to remove her Article 15.  They  further
recommend that the  Board  grant  her  request  to  change  her  reason  for
discharge from fraudulent entry into military service.  Further,  since  the
characterization of the applicant’s service is based  on  the  determination
that she falsified the  AF  Form  24,  the  Board  should  also  change  her
discharge characterization from  under  honorable  conditions  (general)  to
honorable in accordance  with  her  having  been  found  not  qualified  for
promotion pursuant to AFI 36-2501 and AFI 36-3207.

A complete copy of the SJA’s legal review is attached at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel  reviewed  the  Air  Force  evaluations  and  provided  a   six-page
response, with attachments.  Counsel noted that the  advisory  opinion  from
the Separations  Branch  fails  to  address  the  issue  of  Notice  and  an
opportunity to be heard regarding an  administrative  discharge  for  “False
Official Statement.”  Counsel  states  that  there  are  no  documents  that
advise applicant  that  such  a  discharge  could  or  would  result  in  no
creditable service for her  active  duty  time  served,  nor  was  she  ever
advised that the reason for  separation  on  her  DD  Form  214  would  read
“Fraudulent Entry into Military Service,” which was a wrong  and  inaccurate
reflection of the real reason for her separation.   Counsel  further  states
that the legal opinion from the AF/JAG was a much clearer  analysis  of  the
facts and controlling law, and that  the  applicant  was  entitled  to  full
credit of time served to present, back pay,  and  allowances  and  severance
pay.

Counsel’s complete response, with attachments, is attached at Exhibit F.

Additionally, on 14 September 2000, a copy of  the  legal  review  cited  in
Exhibit D was provided to the applicant.  (Examiner’s note:   Legal  review,
cited as 15 Apr 99, was determined to be the original legal review dated  15
Apr 97, which was part of the discharge case file.)

Counsel reviewed the  additional  legal  review  and  provided  a  four-page
response.  Counsel found it quite astonishing that the AF  Personnel  Board,
after seeking legal opinion, disregarded that  opinion  for  the  Air  Force
JAG.   He  noted  that  the  board  findings,  which  were  referred  to  as
significant factors, were irrelevant  and  did  not  support  a  finding  of
fraud.  Counsel further stated that the respondent concurred with the  legal
opinion of the AF/JAG, dated 15 April  1997,  and  renewed  the  applicant’s
request for relief.

Counsel’s complete response, is attached at Exhibit H.

________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of probable injustice  warranting  a  change  in  the  reason  for
applicant’s separation from the Air Force and the removal of  the  contested
Article 15 from her record.  In this regard, we note the  detailed  comments
provided by the  Staff  Judge  Advocate  in  which  he  concludes  that  the
contested Article 15 should be removed from  the  applicant’s  records,  the
reason for separation changed to Not Qualified for Promotion (NQP), and  her
discharge upgraded to honorable.  We agree.  Since the members of the  Board
of Inquiry found that she did not communicate a threat  as  alleged  and  in
view of the circumstances of the statements she made, we  believe  that  the
contested Article 15 should be declared void and removed from  her  records.
The more serious issue  in  this  case  is  whether  or  not  the  applicant
concealed the fact that she had not received her  degree  when  she  entered
active duty.   The  record  before  this  Board  clearly  reveals  that  the
applicant requested, shortly after entering active duty, to  return  to  the
USC to complete her degree requirements.  Her efforts  were  made  with  the
knowledge and assistance of  her  supervisor.   Therefore,  we  are  of  the
opinion that there was no intent to  deceive  the  fact  that  she  had  not
received her degree.  We, as does the Staff  Judge  Advocate,  believe  that
the Air Force  Personnel  Board  erred  in  their  determinations  that  the
applicant falsified the AF Form 24 and fraudulently obtained an  appointment
as an officer in  the  Air  Force.   In  view  of  the  above  findings,  we
recommend her records be corrected to the  extent  indicated  below.   These
corrections will provide her with credit and pay  for  the  time  served  on
active duty.

4.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of probable error or injustice  warranting  her  reinstatement  on
active duty and promotion to the grade of first lieutenant and captain.   In
this respect, regardless of applicant’s actions  at  the  time  she  entered
active duty, she knew she was  obligated,  under  her  AFROTC  contract,  to
complete her degree prior to entering active duty.  While we do not  believe
her actions constitute a finding of fraud on her part, we  do  believe  that
her failure to obtain her degree supports her being found not qualified  for
promotion to the grade of first lieutenant  and  her  subsequent  separation
from  active  duty.   Therefore,  favorable  action  on  her  requests   for
promotion and reinstatement are not recommended.

5.  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
our understanding of the issues involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

________________________________________________________________








THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be corrected to show that:

       a.  The  Article  15,  Uniform  Code  of  Military  Justice   (UCMJ),
initiated on 19 June 1996, with punishment imposed on 7 August 1996, be  set
aside and removed from her records and all rights, privileges  and  property
of which she may have been deprived be restored.

      b.  On 16 May 1997, she was honorably discharged under the  provisions
of AFI 36-3207, by reason of Not Qualified for Promotion, and  furnished  an
Honorable Discharge Certificate.

________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 20 February 2001, under the provisions of AFI 36-2603:

                       Mr. Richard A. Peterson, Panel Chair
                       Mr. Steven A. Shaw, Member
                       Mr. Lawrence R. Leehy, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 16 Aug 1999, w/atchs;
                 Letter from Counsel, dated 5 Nov 99, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, HQ AFPC/DPPRS, dated 29 Sep 99.
     Exhibit D.  Letter, HQ AFPC/JA, dated 8 Dec 99.
     Exhibit E.  Letter, SAF/MIBR, dated 23 Dec 99.
     Exhibit F.  Letter, Counsel’s Response, dated 18 Feb 00.
     Exhibit G.  Letter, AFBCMR, dated 14 Sep 00, w/atchs.
     Exhibit H.  Letter, Counsel’s Response, 25 Sep 00.




                                  RICHARD A. PETERSON
                                  Panel Chair


AFBCMR 99-02204




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

      The pertinent military records of the Department of the Air Force
relating to APPLICANT be corrected to show that:

            a.  The Article 15, Uniform Code  of  Military  Justice  (UCMJ),
initiated on 19 June 1996, with punishment imposed on  7  August  1996,  be,
and hereby is, set aside and  removed  from  her  records  and  all  rights,
privileges and property of which she may have been deprived be restored.

            b.  On 16 May 1997,  she  was  honorably  discharged  under  the
provisions of AFI 36-3207, by reason of Not  Qualified  for  Promotion,  and
furnished an Honorable Discharge certificate.





JOE G. LINEBERGER

Director

Air Force Review Boards Agency