RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS



IN THE MATTER OF:      DOCKET NUMBER:  02-02992
            INDEX CODE:  100.06

            COUNSEL:  JEFF EULBERG

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His reenlistment eligibility (RE) code be changed from 2C to 1.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Upon joining the Air Force, he was given a  questionnaire  that  asked
him had he ever been charged or convicted  of  anything  dealing  with
firearms or alcohol.  He told his recruiter to let  him  talk  to  his
attorney before completing the questionnaire.  His attorney  told  him
that since the charges  were  dismissed,  it  was  as  if  they  never
happened and it was up to him how he responded.

In  support  of  his  appeal,  the  applicant  provided  an   expanded
statement, a statement from counsel, a Motion to  Dismiss  and  Recall
Warrant, a college transcript, and other documents associated with the
matter under review.

Applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 19  Jan  00  for  a
period of six years in the grade of airman first class.

On 10 Jul 00, the applicant’s  commander  notified  him  that  he  was
recommending  that  the  applicant  be  discharged  for  entry   level
performance or conduct.  The  reason  for  the  action  was  that  the
applicant  procured  a  fraudulent  enlistment   through   deliberate,
material misrepresentation, omission, or concealment that, if known at
the  time  of  enlistment,   might   have   resulted   in   rejection.
Specifically, on 7 Dec 99, he did, on Standard Form 86,  Questionnaire
for National Security Positions, answer "no" to questions 23b and 23d,
"Have you ever been  charged  with  or  convicted  of  any  offense(s)
related to alcohol or drugs," which statements were totally false, and
was then known by him to be so false.  The applicant  was  advised  of
his rights in the matter and that an entry level separation  would  be
recommended.

On 18 Jul 00, the  Office  of  the  Staff  Judge  Advocate  found  the
discharge case file to be legally sufficient and recommended that  the
discharge authority approve an entry level separation.

On 19 Jul 00, the discharge authority approved  the  discharge  action
and  directed  that  the  applicant  be  furnished  an   entry   level
separation.

On 28 Jul 00, the applicant was discharged under the provisions of AFI
36-3208 (Fraudulent Entry into Military Service) with an  entry  level
separation.  He was assigned an RE code of 2C (involuntarily separated
with an entry level separation).

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRS  recommended  denial  indicating  that   based   upon   the
documentation in the file, they believe the discharge  was  consistent
with the procedural and  substantive  requirements  of  the  discharge
regulation.  Additionally, the discharge was within the discretion  of
the  discharge   authority.    Airmen   are   given   an   entry-level
separation/uncharacterized service characterization when separation is
initiated in the first 180 days of  continuous  active  service.   The
Department of Defense determined that if a member served less than 180
days of continuous active service, it would be unfair  to  the  member
and the service to characterize their limited service.

In AFPC/DPPRS' view, the applicant did not submit any new evidence  or
identify any errors or  injustices  that  occurred  in  the  discharge
process.  Additionally, he provided no facts warranting  a  change  in
his discharge.

A complete copy of the AFPC/DPPRS evaluation is at Exhibit C.

AFPC/DPPAE indicated that the applicant’s RE code of 2C (Involuntarily
separated with an  honorable  discharge;  or  entry  level  separation
without characterization of service) is correct.

A complete copy of the AFPC/DPPAE evaluation is at Exhibit D.

AFPC/JA recommended denial indicating that the issue in  the  case  is
whether the discovery of the applicant’s arrest, which he concealed on
his security questionnaire, was a sufficient basis for discharging him
from the Air Force.  According to AFI 36-3208, paragraph 5.15:

      An airman  may  be  discharged  for  fraudulent  entry  based  on  the
      procurement of a fraudulent enlistment or period of  military  service
      through  any  deliberate,  material  misrepresentation,  omission,  or
      concealment that, if known at the time of enlistment or entry  into  a
      period of military service, might  have  resulted  in  rejection.  The
      fraud may occur at any time in the enlistment  process;  for  example,
      when airmen are asked to fill out forms.

AFPC/JA stated that the applicant’s arrest record could  have  been  a
basis for rejecting him from Air Force service.  Accordingly, when the
applicant’s arrest record came to light,  the  commander  took  proper
steps in recommending his discharge from  the  service.   By  his  own
admission, the applicant's answers on the Standard Form 86 were wrong,
although  he  apparently  believed  he  was  justified  in   providing
misleading  information  since  the  charges  against  him  had   been
dismissed.

AFPC/JA noted that AFI 36-3208 allows a commander to request a  waiver
in cases of fraudulent entry.  The  AFI  suggests  that  a  waiver  is
appropriate in cases where airmen may “seem to be  good  risks,”  then
“their retention may be in the  best  interests  of  the  Air  Force.”
Apparently,  after  considering  all  the  evidence,  the  applicant’s
commander did not believe the applicant was a “good risk.”

AFPC/JA indicated that they saw no evidence of error or  injustice  in
this  case.   To  obtain  relief,  the  applicant  must  show   by   a
preponderance  of  the  evidence  that  there  exists  some  error  or
injustice warranting corrective action by  the  Board.   They  do  not
believe the applicant has  met  this  burden.   It  appears  that  the
applicant’s case was handled consistent with  Air  Force  Instructions
and they see no basis in fact or law for correcting the applicant’s RE
code.

A complete copy of the AFPC/JA evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response, the  applicant  indicated  that  he  never  tried  to
deceive the Air Force and he would definitely be an  attribute  if  he
were ever given a chance.   It  is  still  his  opinion  that  he  was
discharged unjustly and if he had known  what  he  knows  now,  things
would have definitely been different.

Applicant's complete response is at Exhibit G.

_________________________________________________________________

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 error or injustice.  The evidence of record reflects that
the applicant was  discharged  with  an  entry  level  separation  for
fraudulent entry based on false answers  he  provided  on  a  security
questionnaire indicating that  he  had  never  been  charged  with  or
convicted of any offense related to alcohol or drugs.  As a result  of
his separation, the applicant was assigned an  RE  code  of  2C.   The
applicant now requests a change to his  RE  code  contending  that  he
consulted with his attorney prior to filling out the questionnaire and
was advised that since the charges were dismissed, it was as  if  they
never occurred and it was  up  to  him  how  he  responded.   After  a
thorough review of the facts and circumstances of this case, the Board
finds no evidence that  the  applicant’s  discharge  was  improper  or
contrary to the provisions of the Air Force Instruction under which it
was effected, or that the RE  code  was  inappropriately  assigned  or
inaccurately  reflected   the   circumstances   of   his   separation.
Notwithstanding this, a majority is of  the  opinion  that  since  the
charges against the applicant had been dismissed,  it  is  conceivable
that he may have been confused about how he should have  responded  on
the questionnaire.  A majority also notes that the applicant seems  to
have otherwise performed well during his brief military  service,  and
appears to be making a  successful  transition  to  civilian  life  as
indicated by his post-service documentation.  While  the  majority  is
not inclined to change his  RE  code  to  one  that  would  allow  his
immediate reenlistment, it does not believe that the applicant  should
be permanently barred from future military service if  any  branch  of
the  armed  forces  desires  to  enlist  him  based  on  their  needs.
Accordingly, a majority recommends that the applicant’s RE code of  2C
be changed to one requiring a waiver, i.e., RE-3K (Reserved for use by
HQ AFPC or the Air Force Board  for  Correction  of  Military  Records
(AFBCMR) when no other reenlistment eligibility  code  applies  or  is
appropriate).

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected  to  show  that  his  Reenlistment
Eligibility (RE) Code issued  in  conjunction  with  his  entry  level
separation on 28 Jul 00 was “3K.”

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number 02-
02992 in Executive Session on 25 Feb 03, under the provisions  of  AFI
36-2603:

      Mr. Gregory Petkoff, Panel Chair
      Mr. Billy C. Baxter, Member
      Ms. Dorothy P. Loeb, Member

By a majority vote,  the  Board  voted  to  correct  the  records,  as
recommended.  Mr. Baxter voted to deny the appeal, but did not wish to
submit a minority report.   The  following  documentary  evidence  was
considered:

     Exhibit A.  DD Form 149, dated 16 Sep 02, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPRS, dated 25 Oct 02.
     Exhibit D.  Letter, AFPC/DPPAE, dated 17 Dec 02.
     Exhibit E.  Letter, AFPC/JA, dated 30 Dec 02.
     Exhibit F.  Letter, SAF/MRBR, dated 17 Jan 03.
     Exhibit G.  Letter, applicant, dated 23 Jan 03.




                                   GREGORY PETKOFF
                                   Panel Chair









AFBCMR 02-02992




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 , be corrected to show that his Reenlistment
Eligibility (RE) Code issued in conjunction with his entry level
separation on 28 Jul 00 was “3K.”





    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency