RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  BC-2002-03493
            INDEX CODE 110.02 110.03  108.01
            COUNSEL:  Robert A. Soltis

            HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her 2000 general discharge for fraudulent entry into military  service
be changed to an honorable  discharge  for  service-connected  medical
disability.

Or in the alternative, reinstate her if necessary to  carry  out  dual
processing for physical disability.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Counsel argues his client accurately related her  pre-service  conduct
to her recruiter, her “false official statement” was an  inadvertently
incorrect statement, her back pain  was  service  connected,  and  her
performance warranted an honorable discharge.

Her recruiter told her not to mention or list her pre-service drug use
on her application. The recruiter made a material misrepresentation to
her--don’t tell and you’ll be okay. Her entry  into  service  did  not
hinge on any fraud by her but on the  widely  known  and  acknowledged
practice of recruiters  who  encourage  potential  enlistees  to  stay
silent so the recruiters  can  reach  their  performance  goals.  This
premise was accepted when the Air Force  gave  her  a  waiver  of  the
discharge. The Air Force was estopped from  subsequently  holding  her
compliance with the recruiter’s  instructions  against  her.  She  was
overwhelmed by having her rights read to her and did not recall all of
the incidents of pre-service drug use.  She  initially  was  told  her
discharge would be honorable. Her enlistment physical in May 00 showed
no spinal or other musculoskeletal abnormalities. She injured her back
while carrying a backpack filled with 30 pounds  of  Chinese  language
books used in her job as a linguist. She should have been allowed dual
processing for service-connected physical disability.

Counsel’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 20 May and 22 Jun 00, the applicant completed and  signed  AF  Form
2030, USAF Drug and Alcohol Abuse Certification,  indicating  she  had
not  experimented  with,  used,  possessed,  supplied  or  distributed
marijuana or other illegal drug or narcotic.  She  signed  a  DD  Form
1966/1, Record of Military Processing, on 23 May 00, also asserting no
illegal drug use.

She indicated on her 23 May 00 entrance physical that she did not have
back pain or recurrent back pain.

The applicant enlisted in the Regular Air Force on 22 Jun 00  for  six
years and in Aug 00 was assigned to the 311th TRS at the  Presidio  of
Monterey, CA, as a Far East cryptologic linguist (Chinese Mandarin).

The applicant completed  and  signed  an  SF  86,  Security  Clearance
Application, on 18 Jul 00. She again denied any illegal  drug  use  or
activity since the age of 16 or in the last seven years.

On 18 Sep 00, applicant was notified  of  her  commander's  intent  to
impose nonjudicial punishment for underage  consumption  of  alcoholic
beverages on or about  31  Aug  00.  After  consulting  with  counsel,
applicant waived her right to a trial by court-martial.  She  did  not
request a personal appearance but did submit a  written  presentation.
On 25 Sep 00, her commander found her guilty and imposed punishment in
the form of forfeiture of $465.00 pay per month for two months and  21
days of extra duty. The applicant did not appeal. The Article  15  was
found legally sufficient and filed in her Unfavorable Information File
(UIF).

On 21 Nov 00, in the  process  of  being  investigated  for  sensitive
compartmented information (SCI) clearances, the applicant  provided  a
voluntary signed statement to a special agent of the Defense  Security
Service (DSS) describing her pre-service drug use. She  indicated  she
used marijuana approximately 30  times,  mainly  at  parties,  snorted
cocaine once, tried ecstasy on five occasions, and whippets (inhalant)
on two occasions. She was never arrested. She  asserted  she  did  not
tell her recruiter or report her drug use on her security form because
she felt she would not be able to enlist in the Air Force. She claimed
she chose to reveal her prior drug use because she  wanted  to  obtain
the special clearances needed for her job.

A 1 Dec 00 medical entry reported the applicant presented  with  upper
back pain after carrying her backpack, apparently on  her  left  side.
Examination was normal. She was given an anti-inflammatory and  muscle
relaxant. The  physician’s  assistant  (PA)  indicated  the  applicant
should lift no more than five pounds and could carry the  backpack  on
the  right  shoulder.  A  9  Dec  00  follow-up  indicated  she  still
experienced upper back pain that became sharp with any  movement.  The
pain on the left side had been resolved but was now on the right side.
The PA estimated the backpack weighed about 30 pounds when filled with
books and other articles. The applicant was  advised  to  lighten  the
backpack load and to wear the pack in normal fashion  to  more  evenly
distribute the load.

A 23 Jan 01  physical  therapy  consultation  reported  the  applicant
continued to experience intermittent pain depending on  the  activity.
She revealed a similar episode  two-three  years  ago  while  dancing.
Follow-up visits on 13-15 Feb 01 reflected continued  back  pain.   No
clinical signs of inflammation or mechanical breakdown were noted  and
X-rays of her cervical spine on 28 Feb 01 were normal.  The  applicant
refused offers of anti-inflammatory and muscle  relaxant  medications.
She was referred to  orthopedics  for  long-term  profile  or  Medical
Evaluation Board (MEB).

A referral for civilian medical care, dated what appears to be  26 Feb
01, indicated a provisional diagnosis of cubital tunnel syndrome.

The applicant continued to experience back pain. A 3  May  01  medical
entry reported the applicant complained of right  hip  pain  over  the
last two months. She denied trauma and advised she was treated  for  a
urinary tract infection in Apr 01.

On 23 Jul 01, X-rays of the applicant’s thoracic spine were normal. On
1 Oct 01, X-rays of her lumbosacral spine were normal.  She  continued
to complain of upper and lower back pain in Aug 01.

On 19 Oct 01, magnetic resonance  imaging  (MRI)  of  the  lumbar  and
cervical spine by a civilian provider were normal.

On 1 Nov 01, the  applicant  indicated  on  AF  Form  2519,  SCI  Pre-
Screening Interview (PSI) Checklist, that she  had  experimented  with
marijuana around 15 times and ecstasy around three times in  a  three-
year period. After being advised of her rights, she waived counsel and
provided a sworn statement on 2 Nov 01  to  the  NCOIC  of  the  311th
TRS/Security Forces (SF), claiming that when she was in the process of
enlisting  she  informed  her   recruiter   of   her   previous   drug
experimentation. He allegedly told her she would not be able to  enter
the Air Force if she admitted to using these drugs and advised her not
to say anything and nobody would find out. Later,  she  realized  that
lying was the wrong thing to do and she told her  interviewer  of  her
past drug experimentation history.  She  had  not  used  any  type  of
illegal drug for about a month  before  she  went  to  the  processing
center the first time. She stated she used marijuana at parties around
15 times and Ecstasy on three occasions. She asserted she did not want
to engage in drug use since joining the military. She added  she  told
the DSS interviewer of her past drug history  because  she  was  being
investigated for clearances and did not want to lie. She asserted  she
had not used drugs since shortly before or after entering the service.

A 19 Nov 01 medical entry reported the applicant complained of pain in
her entire back and hips. The entry indicates the applicant  hurt  her
back a year ago with a backpack and had  intermittent  backaches  ever
since.

An MRI follow-up visit on 30 Nov 01 indicated the applicant stated her
lower back pain had resolved but her upper back still hurt. A  30  Nov
01 physical  profile  for  back  pain  restricted  her  from  running,
jumping, or sitting  for  longer  than  30  minutes  without  changing
position. She was permitted to lift up  to  15  pounds.  (The  profile
expired on 30 Dec 01.)

On 17 Dec 01, the 311th TRS commander requested the 17th TRW commander
to approve a waiver of discharge action for fraudulent  entry  on  the
applicant. He advised that  the  applicant’s  marijuana  use  probably
would not have prevented her enlistment or required a  waiver  if  she
had disclosed this on her enlistment papers. However, her Ecstasy  use
would have  been  questioned  and  required  a  waiver.  The  squadron
commander added that the applicant was an outstanding airmen  and  her
retention was in the best interests of the Air Force. He believed  she
would not use drugs again and would excel if given the chance to stay.

A legal review dated 19 Dec 01 recommended that the waiver be approved
and the applicant be retained. The 17th  TRW  commander  approved  the
waiver/retention on 20 Dec 01.

A 7 Feb 02 medical entry noted the applicant’s symptoms were improved,
that she was now doing push-ups without  problems  but  sit-ups  still
hurt, and she was running better but was not conditioned.  An  MRI  of
her thoracic spine on 28 Feb 02 was normal. However, a 15 Mar 02 entry
reported her chronic mid/low back pain with walking, running and  sit-
ups had  not  improved  despite  waivers  and  physical  therapy.  The
physician noted no surgical findings on the MRI and  referred  her  to
Orthopedics at Travis AFB for a possible MEB.

According to a statement from the 311th TRS/SF NCOIC,  a  request  for
additional  information  from  the  Air  Force  Central   Adjudication
Facility (AFCAF) was made on 13 Mar 02. The records  do  not  indicate
what triggered the request. As a result, on 18 Mar 02,  the  applicant
waived her right to counsel and  made  another  sworn  statement.  She
indicated when she was interviewed on 2 Nov 01, she  did  not  mention
her prior service cocaine use because she did not remember it  and  it
was a one-time usage. She stated she was “overwhelmed” with being read
her rights and that it slipped her mind. She added she  was  told  her
prior service drug use was waived  but,  due  to  the  ongoing  stress
related to this issue, she no  longer  wished  to  continue  with  her
military service.

On 3 Apr 02, the 311th TRS commander notified  the  applicant  of  his
intent to recommend discharge  for  fraudulent  entry.  The  commander
indicated a  discrepancy  had  been  found  during  a  review  of  the
statement the applicant made  to  the  DSS  on  21  Nov  00.  In  this
statement, she admitted to using marijuana around 30 times, twice  her
previously admitted amount, Ecstasy  three  times,  cocaine  once  and
whippets twice. She failed to disclose  this  information  before  her
waiver was granted. The commander indicated that  when  the  applicant
was interviewed on 18 Mar 02, she acknowledged using Marijuana  around
30 times, cocaine once, and whippets twice. The commander  also  cited
the Article 15 and the following incidents for which the applicant was
counseled: being late on 30 Aug 00 for a third phase test, having  her
hair outside of regulations on 10 Sep 00, being late for a bay meeting
on 24 Oct 00, not checking in for accountability on  27  Oct  00,  and
failing a room inspection on 17 Jan 01.

The applicant acknowledged receipt and, on 3  Apr  02,  her  commander
recommended  a  general  discharge  for  the  reasons  cited  in   the
notification letter. The commander added the applicant was  ineligible
for probation and rehabilitation  (P&R)  [because  of  the  fraudulent
entry].  He  had  considered  another  waiver,  but  did  not  believe
retention would be in the best interests of the applicant or  the  Air
Force. The applicant  waived  her  right  to  counsel  and  to  submit
statements.

A legal review on 8 Apr 02 recommended  the  applicant  be  discharged
with a general characterization. On 12 Apr 02, the discharge authority
approved the applicant’s general discharge without P&R.

A physical exam on 15 Apr 02 noted the applicant had  chronic  mid/low
back  pain  for  more  than  one  year.  Symptoms  persisted   despite
nonsteroidal  anti-inflammatory  drugs  (NSAIDs),  physical   therapy,
activity modifications, X-rays and  MRIs.  The  orthopedic  workup  at
Travis yielded no objective findings to date.

On 22 Apr 02, the applicant was discharged  in  the  grade  of  airman
first class, with a general characterization,  for  fraudulent  entry.
Her DD Form 214 reflected one year, ten months and one day  of  active
service.

On 19 Jun 03, HQ AFPC/DPPRSP forwarded to the applicant a DD Form  215
correcting her DD Form 214 to show she had no active service (based on
the fraudulent entry).

_________________________________________________________________

AIR FORCE EVALUATION:

The AFBCMR Medical Consultant advises that the  applicant’s  neck  and
back pain did not  interfere  with  the  performance  of  her  primary
duties. Her pain remained unchanged in the months  after  her  Dec  01
retention leading to her ultimate discharge for fraudulent enlistment.
However, in mid-Mar 02, when repeat  discharge  action  was  imminent,
referral for orthopedic surgery evaluation for a possible MEB was made
based on continued pain and the requirement for physical  limitations.
The events of her administrative discharge action overcame any medical
administrative process. Had she not  been  discharged  for  fraudulent
enlistment and an MEB conducted, she may likely have been  recommended
for retention with a permanent physical limitation  or  she  may  have
been  found  unfit  and  recommended  for  disability  discharge  with
severance pay at no more than 10%.  This point is  moot,  however,  as
airmen  being  discharged  under   provisions   that   allow   for   a
characterization of service  as  under-other-than-honorable-conditions
(UOTHC),  regardless  of  the  actual  characterization   of   service
received, are not eligible for entry into  the  Disability  Evaluation
System (DES). AFI 36-3208 indicates that UOTHC discharge is the  usual
characterization for fraudulent  enlistment  when  the  airman  is  no
longer  in  entry-level  status.  The  applicant  received  a  general
discharge, acknowledging the positive aspects of her service. The case
should be denied  because  action  and  disposition  were  proper  and
equitable.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPD notes that, although the applicant’s medical records show
she was being treated for various medical conditions during her  short
military career, her administrative discharge apparently preempted the
finalization of these treatments. The  mere  presence  of  a  physical
defect or condition does not automatically  qualify  a  member  for  a
disability discharge or  retirement.  The  defect  or  condition  must
render the member unfit for duty. The applicant was reasonably capable
of performing the duties of her office, grade, rank or rating right up
until her release from  active  duty.  Her  military  career  was  not
curtailed as a result of any physical limitations at the time  of  her
discharge. The medical aspects of the case are thoroughly reviewed  by
the Medical Consultant, with which they wholeheartedly  agree.  Denial
is recommended.

A complete copy of the evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In accordance with requests from the applicant and  her  counsel,  the
case was temporarily withdrawn on 13 Jun 03.

Copies of the applicant and counsel’s letters are at Exhibit F.

Based on counsel’s 10  Apr  04  response,  the  applicant’s  case  was
reopened. Counsel asserts the AFBCMR Medical Consultant is speculating
that an MEB would have retained the applicant because of her  critical
specialty, while ignoring the fact that her ability  to  keyboard  for
extended periods of  time  as  a  cryptologist  was  impaired  by  her
radiculopathy and cubital tunnel syndrome. An MEB had been recommended
for the  applicant  before  the  administrative  separation.  The  Air
Force’s failure to convene that board deprived the  applicant  of  due
process by giving her no opportunity to determine whether she was  fit
for duty.

Counsel provides copies of the applicant’s military medical records in
support. His complete response, with attachments, 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 timely filed.

3.    Insufficient relevant evidence has been presented to demonstrate
the existence of error or injustice. After a thorough  review  of  the
evidence  of  record  and  the  applicant’s  submission,  we  are  not
persuaded her general discharge for fraudulent  enlistment  should  be
changed to an honorable discharge for service-connected disability, or
that she should  be  reinstated  for  medical  disability  processing.
Counsel’s contentions are duly noted; however, we do  not  find  these
assertions, in and by themselves, sufficiently persuasive to  override
the evidence of record  or  the  rationale  provided  by  the  Medical
Consultant and the Air Force. The waiver granted to the  applicant  in
Dec 01 was based on her admitting to  using  marijuana  15  times  and
ecstasy three times prior to military  service.  However,  information
from an earlier disclosure of  more  serious  and  significantly  more
frequent drug use subsequently came to light.  In  one  instance,  the
applicant contended her recruiter advised her not to reveal  her  drug
history. In another statement, she specifically indicated she did  not
reveal her drug use history to her recruiter but concealed it to  gain
entry into the Air Force. While we can easily  believe  an  aggressive
recruiter might suggest an enlistee not reveal infrequent  minor  drug
use, we find it difficult to accept any recruiter would be so reckless
as to suggest concealment of a frequent and varied drug  history  such
as the applicant’s.  Regardless of whether the recruiter told  her  to
conceal her drug history, the decision to obscure  her  drug  use  was
ultimately hers to make.  Consequently,  the  applicant’s  credibility
appears somewhat questionable and, coupled with  the  Article  15  and
other minor infractions, we agree with the  Air  Force’s  decision  to
discharge her. As for  the  medical  issues,  the  applicant  has  not
established to our satisfaction that, at the time of  her  separation,
an unfitting condition had curtailed her career. MRIs, X-rays, and the
orthopedic workup at Travis for “possible MEB”  yielded  no  objective
findings.  The  disability  evaluation  process   begins   only   when
examination, treatment,  hospitalization  or  substandard  performance
results in actual referral to an MEB. In any event, as  noted  by  the
Medical Consultant, AFI 36-3208 indicates the  usual  characterization
for fraudulent enlistment is  a  UOTHC  characterization  of  service.
Airmen being discharged  under  provisions  that  allow  for  a  UOTHC
characterization, regardless of the  actual  service  characterization
received, are not eligible for entry into  the  Disability  Evaluation
System. The applicant was given a general discharge in acknowledgement
of the positive aspects of her service.  We agree with the  Consultant
and the Air Force that disposition in  the  applicant’s  case  appears
proper and equitable and she was not  a  victim  of  an  error  or  an
injustice. In view of the above and absent persuasive evidence to  the
contrary, we find no compelling basis to recommend granting the relief
sought.

______________________________________________________________

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  this  application  in
Executive Session on 12 May 2004 under the provisions of AFI 36-2603:

                 Mr. David C. Van Gasbeck, Panel Chair
                 Ms. Jean A. Reynolds, Member
                 Mr. James A. Wolffe, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2002-03493 was considered:

   Exhibit A. DD Form 149, dated 1 Oct 02, w/atchs.
   Exhibit B. Applicant's Master Personnel Records.
   Exhibit C. Letter, AFBCMR Medical Consultant, dated 17 Mar 03.
   Exhibit D. Letter, HQ AFPC/DPPD, dated 5 May 03.
   Exhibit E. Letter, SAF/MRBR, dated 9 May 03.
   Exhibit F. Letters, Applicant, undated, & Counsel, dated
                       19 Jun 03.
   Exhibit G. Letter and Email, AFBCMR, dated 13 & 30 Jun 03.
   Exhibit H. Letter, Counsel, dated 10 Apr 04, w/atchs.




                                   DAVID C. VAN GASBECK
                                   Panel Chair