RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-02366
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
He be reinstated to active duty and receive an honorable
discharge with current date, full back pay and retroactive
benefits associated with an honorable discharge.
APPLICANT CONTENDS THAT:
Because he was under the age of 18 when he signed his DD Form
214, Report of Separation from Active Duty, the document is
nullified, the separation is nullified, which means he is still
on active duty with the Air Force. He was assaulted and raped
by forced sodomy during basic training at Lackland Air Force
Base, Texas while on dorm guard duty by a Training Instructor
(TI). He informed the mental health counselor about what had
occurred and was told to keep quiet it was his word against the
TI. The counselor told him he would be court martialed for
lying about his age to join the military.
The applicants complete submission, with attachments, is at
Exhibit A.
STATEMENT OF FACTS:
The applicant initially entered the Regular Air Force on
24 Aug 76.
On 21 Sep 76, the applicant was released from active duty and
was credited zero active service due to the fact that his
enlistment was rendered void due to the fact he was under 18
years of age when he enlisted.
The remaining relevant facts pertaining to this application are
contained in the memorandum prepared by the Air Force office of
primary responsibility (OPR), which is attached at Exhibit C.
AIR FORCE EVALUATION:
AFPC/DPSOR recommends denial indicating there is no evidence of
an error or an injustice. The applicants commander processed
him for immediate separation upon learning that the applicant
was only 16 years of age when he signed his enlistment contract
to join the military. The applicant was under the legal age of
enlistment therefore the contract was void and the applicant was
processed for separation. The applicants DD Form 214 states
his character of service was honorable; however, the enlistment
was void so the applicant was not credited with any active
service. Air Force Regulation 39-10, Section C states, a
person under 17 years of age is barred by law from enlistment.
An enlistment may be void if an individual is underage. He used
falsified documentation to gain entry into the Air Force. The
applicant was not subject to discharge under fraudulent entry
because Airman who are minors at the time of entry are not
subject to discharge under this section if they misrepresent
their age or consent of their parents or guardians. The only
option for the commander once he learned the facts about the
applicants age was to void the enlistment. The applicant
stipulates that his signature on the DD Form 214 invalidates his
discharge, since he was a minor child when he signed it. In
accordance with AFR 35-6, Separation Documents, the signature on
the DD Form 214, is not required and the document can be
completed with or without the applicants signature.
Furthermore, this application is untimely; it has been more than
38 years since the applicant was discharged.
A complete copy of the AFPC/DPSOR evaluation is at Exhibit C.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the
applicant on 27 Oct 14 for review and comment within 30 days
(Exhibit D). As of this date, no response has been received by
this office.
FINDINGS AND CONCLUSIONS OF THE BOARD:
After careful consideration of applicants request and the
available evidence of record, we find the application untimely.
Applicant did not file within three years after the alleged
error or injustice was discovered as required by Title 10,
United States Code, Section 1552 and Air Force Instruction
36-2603. Applicant has not shown a plausible reason for the
delay in filing, and we are not persuaded that the record raises
issues of error or injustice which require resolution on the
merits. Thus, we cannot conclude it would be in the interest of
justice to excuse the applicants failure to file in a timely
manner.
THE BOARD DETERMINES THAT:
The application was not timely filed and it would not be in the
interest of justice to waive the untimeliness. It is the
decision of the Board, therefore, to reject the application as
untimely. With regards to the contentions made by the applicant
on his application we will report this to the appropriate
authority.
The following members of the Board considered AFBCMR Docket
Number BC-2014-02366 in Executive Session on 19 Mar 15, under
the provisions of AFI 36-2603:
The following documentary evidence pertaining AFBCMR Docket
Number BC-2014-02366 was considered:
Exhibit A. DD Form 149, dated 2 Jun 14, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, AFPC/DPSOR, dated 9 Sep 14.
Exhibit D. Letter, SAF/MRBR, dated 27 Oct 14.
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