RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  01-03373
                   INDEX        CODE:         110.02,         131.00, 
 135.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His records be corrected to reflect he was retired in the rank  of
Master Sergeant (MSgt/E-7) with back pay  and  points,  effective  the
date of the Board’s decision, rather than administratively  discharged
for Fraudulent Entry.

2.  His general discharge be revoked.

3.  He be awarded the maximum allowable  retirement  points  he  would
normally have accrued from 19 Dec 93 through the date of  the  Board’s
decision.

4.  He be awarded all lost pay and allowances based on  his  promotion
to E-6, effective 1 Jan 94, and E-7, effective 1 Jan 98.

_________________________________________________________________

APPLICANT CONTENDS THAT:

When he reenlisted into the Air Force Reserve, he was not given enough
time to properly fill out his security clearance  forms;  nor  was  he
advised that a security investigation would need to take  place.   Had
he known this was the case, he would have requested the  forms  to  be
given to him as soon as the recruiting process began.  He  had  little
time to prepare, and was not in possession of any  documentation  that
he could refer to.  Because his unit wanted him to reenlist  the  next
day and perform drills, he felt rushed to complete the paperwork.

He states that during  his  first  several  drills  in  1992,  he  was
redlined for promotion because of an ongoing sexual harassment case in
the unit.  After informing the commander that those were  not  grounds
for redlining someone for promotion, he later informed  his  commander
also that a pending security  clearance  was  not  a  reason  to  deny
promotion.

He further states that during his  discharge  proceedings  there  were
some concerns that he was not receiving the best representation.   His
military legal counsel feared for his career and  he  felt  that  this
raised the possibility of an unwelcome,  unintended  and  intimidating
conflict of interest between his counsel  and  his  superiors  at  the
Reserve headquarters.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Prior to the period of service under review, the applicant  had  prior
service in the Regular Air Force between 21 Sep 67 and 15 Dec 77;  the
Air Force Reserve from 22 May 78 until 1 Feb  79;  Regular  Air  Force
from 2 Feb 79 until 4 May 79; the Army National Guard from 26  Sep  79
until 11 Nov 80; Regular Air Force from 12 Nov 80 until 15 Jul 82.  He
was in civilian status from 16 Jul 82 until 30 Dec 86.  He enlisted in
the Alabama Army National Guard (ARNG) on 31 Dec 86 and remained there
until his transfer to the Idaho ARNG in 1989.

On 2 Feb 91, he enlisted in the Washington Air National  Guard  (ANG);
he transferred to the Air Force Reserve on 10 Dec 92.

On 15 Sep 93, the squadron section commander initiated  administrative
discharge action against the  applicant  for  Fraudulent  Entry.   The
specific  reason  for  the  proposed  action   was   the   applicant’s
intentional omission of numerous incidents of arrests  and  delinquent
debts from a security investigation request (DD Form 398-2)  that,  if
known at the time of enlistment, might have resulted in the  applicant
being ineligible to enlist.

On 19 Jan 95, the Secretary of the Air Force Personnel Council  denied
the applicant’s request for Lengthy  Service  Probation  (LSP).   They
opined that had the applicant’s falsehoods been  promptly  discovered,
he would not have been permitted to serve any military service in  any
capacity since at least 1982.  Had this been the case,  he  would  not
have been eligible for LSP, let alone near retirement eligibility.

On 19 Feb 95, he was discharged from the  Air  Force  Reserve  with  a
General discharge by  reason  of  Defective  Enlistment  –  Fraudulent
Entry.

On  26  Mar  01,  HQ  ARPC/DPPRB  published  Reserve  Order   EK-3668,
transferring  the  applicant  to  the   Retired   Reserve,   effective
19 Feb 01.  This order was rescinded by Reserve Order  EK-1013,  on  5
Feb 02.  According to HQ ARPC/DPPRB, the  retirement  order  had  been
issued in error.

Other relevant facts  pertaining  to  the  applicant’s  discharge  are
contained in the letter prepared by HQ AFRC/JAJ, attached  to  Exhibit
D.

Pursuant to the Board’s request, the Federal Bureau of  Investigation,
Clarksburg, West Virginia, provided an investigative report  which  is
attached at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFRC/DPM reviewed this application and  recommended  denial.   They
concurred with HQ AFRC/JAJ’s recommendation (Attached).

HQ AFRC/JAJ reviewed the applicant’s requests and recommended that  no
relief be granted.  They noted the following facts from the case file:

     a.  The applicant was recommended for  discharge  for  fraudulent
entry  with  an  Under  Other  Than   Honorable   Conditions   service
characterization.  He received the notice of his discharge action in a
memo prepared by HQ AFRES/DPA, dated 29 Oct 93.   Applicant  requested
to have his case heard by an  administrative  discharge  board,  which
convened on 30 Mar 94 and then was delayed until 1  Jun  94.   He  was
subsequently represented by military and civilian counsel.  The  Board
found that a preponderance of the evidence proved the Fraudulent Entry
allegation  and  recommended  his  discharge  with  a  general  (under
honorable conditions) service characterization.

      b.  On  5  Jul  94,  HQ  AFRES/CV  approved  the  findings   and
recommendations and the case file  was  forwarded  to  the  Air  Force
Personnel Board (AFPB) for a determination as to whether the applicant
should receive Lengthy Service Probation (LSP).  The AFPB  denied  the
request for LSP.

     c.  Applicant was discharged on 19 Feb 95, for  Fraudulent  Entry
pursuant to Reserve Order A-076.  He was assigned  in  the  Air  Force
Personnel Data System (PDS) as a discharged former member since he had
over 20 years of satisfactory service at the time  of  his  discharge.
After notification of his discharge action, applicant submitted an  AF
Form 131, Application  for  Transfer  to  the  Retired  Reserve.   His
application was denied on 16 May 94 by the discharge authority.

     d.  Reserve Order EK-3668, published on 26  Mar  01,  transferred
applicant to the Retired Reserve, effective 19 Feb 01.  This order was
rescinded by Reserve Order EK-1013, on 5  Feb  02.   According  to  HQ
ARPC/DPPRB, the retirement order had been issued in error.

In discussing the applicant’s case file, HQ  AFRC/JAJ,  noted  several
reasons  for  denying  the  applicant’s  request.   They  stated   the
applicant was afforded full due process during his discharge action; a
board of officers found that a preponderance of  the  evidence  proved
the  Fraudulent  Entry  allegation.   They  also  noted  that  in  the
applicant’s narrative statement, the applicant  admits  that  he  made
material misrepresentations on his DD Form 398-2 when he filled it out
on 1 Feb  01,  i.e.,  “left  out  information  regarding  civil  court
convictions, mental health history and other information.”   His  only
excuse was that he was pressured to fill out  the  security  forms  in
less than one-half hour, which caused him  to  omit  some  information
unintentionally.

Applicant denied ever having any property repossessed, in fact he  had
four vehicles repossessed.  Although, he had time to list that he  had
received speeding tickets,  he  somehow  “forgot”  that  he  had  been
arrested at various times for assault, disturbing the peace, resisting
a police officer, destruction of property, harassment, felony menacing
with a firearm, pistol  whipping,  first  degree  felony  trespassing,
felony larceny, felony conspiracy to violate US  copyright  laws,  and
willful failure to pay withholding  tax.   Several  of  these  arrests
resulted in criminal convictions.   He  also  forgot  having  numerous
interactions with mental health professionals and even being diagnosed
with a personality disorder.  He forgot over $240,000 in debts that he
owed to 60 different creditors, including $16,000 to the Department of
Justice (DOJ) and $28,000 to the Internal Revenue Service (IRS).  They
further  state  that  it  was   not   possible   for   the   applicant
unintentionally to have omitted so much material information in his DD
Form 398-2, and the only possible explanation is  that  his  omissions
were willful and intentional.  Had this  information  been  known,  he
never would have been allowed  to  transfer  to  the  USAFR  from  the
Washington ANG.  In fact, he would have been processed  for  discharge
by the Washington ANG since his felony  conviction  for  violation  of
U.S. copyright laws  is  a  “major  offense”  and  not  waiverable  in
accordance with ANGR 39-9, Table 2-3,  Line  1a.   The  discharge  for
Fraudulent Entry was warranted.

As to the applicant’s erroneous  assignment  to  the  Retired  Reserve
after he contacted a technician at HQ ARPC/DPPRB, his  retirement  was
not lawful and the technician had no  authority  to  bind  the  United
States.  According to a legal review by  AFRES/JA,  dated  19 Dec  94,
although  applicant  met  the  20  years   of   satisfactory   service
requirement, he did not meet the requirement that the last eight years
must have been completed in a Reserve component.  As of 30 Dec 93, the
applicant had 20 years, 1 month and 24 days of  satisfactory  service,
however, only  the  last  7  years  were  with  a  Reserve  component.
Moreover, the JA memorandum stated that although 10  U.S.C.  1331  was
amended to insert “six years” vice “eight years” it did not  apply  to
the applicant, since all of his service was  prior  to  the  date  the
amendment was enacted.  This  interpretation  of  the  impact  of  the
amendment was endorsed by an opinion from HQ USAF/JAG in Mar 96, which
stated that the 20 years of service must have been completed within  a
5-year window between 5  Oct  94  and  30  Sep  99.   However,  DOD/GC
disagreed in its opinion dated 13 May 96, where  they  concluded  that
this 5-year window of eligibility did  not  apply  in  order  to  take
advantage of  the  amendment.   This  subsequent  DOD/GC  opinion  may
explain why some technician at HQ ARPC/DPPRB took unilateral action to
publish a retirement order.

In final, assuming the applicant would have been  considered  eligible
for retirement when he submitted his AF Form 131, they  are  confident
that AFRES/CV would not have approved his request for transfer to  the
Retired Reserve.  The applicant should  not  have  been  permitted  to
serve in any military capacity as far back as 1982.  He was able to do
so only because of his willful deceit.  Strictly on the merits of  the
past, denying his request for retirement would have been  the  logical
conclusion.

A complete copy of the Air Force evaluation, with  attachment,  is  at
Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant submitted a 68-page rebuttal,  wherein  he  states  that  he
takes rigorous exception to HQ AFRC/JAJ’s advisory  opinion  regarding
their comments and recommendation that no relief be  granted  per  his
application for correction of  his  military  records.   He  submitted
additional documents to support his claim.  He says he has the  utmost
respect for this country’s military  services,  institutions,  customs
and traditions, however, when a drastic action such as an  involuntary
discharge is made by the Air Force Reserve  against  one  of  its  own
members, it should be fair, impartial, objective and most of all, base
its decision  on  facts,  not  distortions,  outright  falsehoods,  or
inconclusive/incorrect findings.  As well, the punishment  should  fit
the crime, if there was a crime.  He has been truthful (to the best of
his memory) in all statements made, both in the  original  application
and his rebuttal, to the best of his knowledge, belief and  experience
regarding his discharge from the Air Force Reserve on 19 Dec 95.

Applicant’s complete response  to  the  Air  Force  evaluation  is  at
Exhibit F.

Applicant  also  submitted  a  response   to   the   FBI   Report   of
Investigation,  wherein  he  reiterated  his  suspicions   about   the
circumstances under which he was removed from the Retired Reserve  and
says most of the charges  mentioned  were  reduced,  dismissed,  nolle
processed, or part of one incident.

He further states that most of the  incidents  mentioned  in  the  FBI
file, 3 (or possibly 4) of them were disposed of by  relatively  small
fines; one was nolle processed, and possibly one was not prosecuted.

Applicant’s complete response to the FBI Report is at Exhibit H.

_________________________________________________________________




THE BOARD CONCLUDES THAT:

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

2.  The application was not  timely  filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of error or injustice.  The discharge appears to  be  in
compliance with the governing regulation and we find  no  evidence  to
indicate that applicant’s separation from the Air  Force  Reserve  was
inappropriate.  We find no evidence of error in this  case  and  after
thoroughly reviewing the documentation  that  has  been  submitted  in
support of applicant's appeal, we do not believe he has suffered  from
an injustice.  Therefore, based on the available evidence  of  record,
and in the absence of evidence to the contrary, we find no basis  upon
which to recommend favorable action  on  his  request  to  revoke  his
administrative discharge.

4.  We took notice of the applicant's requests to be  retired  in  the
rank of master sergeant (E-7) and to receive back pay and points; that
he be awarded the maximum allowable retirement points  that  he  would
have normally accrued from 19 Dec 93 through the date of  the  Board’s
decision, and that he be awarded all lost pay and allowances based  on
his promotion to E-6, effective 1 Jan 94, and E-7, effective 1 Jan 98.
 However, having found no error  or  injustice  with  respect  to  the
administrative discharge  action,  we  find  no  compelling  basis  to
recommend granting this portion of his application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of material error  or  injustice;  that  the
application was denied without a personal  appearance;  and  that  the
application will only be reconsidered upon  the  submission  of  newly
discovered relevant evidence not considered with this application.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number 01-
03373 in Executive Session on 26 November 2002, under  the  provisions
of AFI 36-2603:

      Mr. Richard A. Peterson, Panel Chair
      Ms. Cheryl Jacobson, Member
      Mr. Billy C. Baxter, Member



The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 24 Nov 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report of Investigation.
    Exhibit D.  Letter, HQ AFRC/DPM, dated 20 Mar02, w/atch
                        HQ AFRC/JAJ ltr, dated 14 Mar 02.
    Exhibit E.  Letter, SAF/MRBR, dated 12 Apr 02.
    Exhibit F.  Letter, Applicant, dated 1 May 02, w/atchs.
    Exhibit G.  Letter, AFBCMR, dated 7 Aug 02, w/atch.
    Exhibit H.  Letter, Applicant Response to FBI Report,
                        dated 20 Aug 02.





                                   RICHARD A. PETERSON
                                   Panel Chair