RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-03465
		INDEX NUMBER:  123.00

		COUNSEL:  None

		HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

The 30 days time loss incurred while he was in pre-trial confinement be removed from his records.

He be promoted to senior airman (SrA) effective 6 Dec 01 vice  5 Jan 02.

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APPLICANT CONTENDS THAT:

He was placed in pre-trial confinement in Germany, while still on leave, due to an outstanding warrant for his arrest.  He was not aware of the arrest warrant.  The charges against him were dropped in Oct 01.

In support of his request, applicant provides a letter of evaluation and reference prepared by the Host Nation (German) legal advisor.

The applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

Applicant is presently serving on active duty in the grade of airman first class (A1C). He entered active duty on 23 Jun 99.  His Total Active Federal Military Service Date (TAFMSD), due to 30 days lost time, is 22 Jul 99.

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AIR FORCE EVALUATION:

HQ AFPC/DPW recommends denial of the applicant’s request to restore his time lost.  They have attached a copy of a legal opinion prepared by AFPC/JA that advises that the applicant’s request does not comply with United States Code (USC), Section 972, Title 10.

The complete evaluation, with attachments, is at Exhibit C.

HQ AFPC/DPPAO recommends denial of the applicant’s request to adjust his TAFMSD and paydate.  The applicant’s TAFMSD and paydate were adjusted to reflect the time lost.

The complete evaluation is at Exhibit D.

HQ AFPC/DPPPWB recommends that the applicant’s date of rank (DOR) to both A1C and SrA be adjusted accordingly if his request to restore lost time is granted.

The complete evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 5 April 2002 for review and comment within 30 days.  To date, a response has not been received.

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ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, the Staff Judge Advocate (SJA) referenced by the applicant as having knowledge of his case, provided a statement to clarify the circumstances of the applicant’s case.  She provided the sequence of events, as she understood them to have occurred.  She asks the Board to favorably consider the applicant’s appeal.  She indicates that she truly believes that the applicant’s incarceration was not due to his misconduct and should not be held against him.  The dismissal of all charges against the applicant is strong evidence that criminal proceedings were not warranted.

The complete statement is at Exhibit G.

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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.  After reviewing the complete evidence of record, it appears that the applicant’s incarceration was due to a series of administrative errors rather than misconduct on his part.  The statement from the Staff Judge Advocate, who had knowledge of the unique circumstances in this case, indicates that the applicant is an outstanding Air Force member and that the dismissal of all charges against him is strong evidence that criminal proceedings were unwarranted.  While we note the legal opinion indicates that the removal of lost time is a violation of the applicable law, we have been subsequently informed that this Board has the authority to remove lost time.  In view of the above findings we recommend the lost time be removed from applicant’s records.  In addition, applicant’s Total Active Federal Military Service Date, pay date, and promotion dates should be adjusted.  We also note that applicant requested the removal of 30 days of lost time; however, it appears that he was actually charged for 29 days.  Therefore, we recommend that his records be corrected to the extent indicated below.

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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 period 3 April 2001 to 1 May 2001 was not lost time; that all references thereto be deleted from his records; and, that he is entitled to full pay and allowances during this period.

b.  His Total Active Military Service Date and Pay Date is 23 June 1999.

c.  His date of rank to the grade of airman first class is 6 August 1999.

d.  He was promoted to the grade of senior airman effective and with date of rank 6 December 2001.

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The following members of the Board considered Docket Number 01-03465 in Executive Session on 5 June 2002 and 27 June 2002, under the provisions of AFI 36-2603:

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

     Exhibit A.  DD Form 149, dated 30 Nov 02, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPW, dated 25 Feb 02, w/atch.
     Exhibit D.  Memorandum, AFPC/DPPAO, dated 11 Mar 02.
     Exhibit E.  Memorandum, AFPC/DPPPWB, dated 15 Mar 02,
                 w/atch.
     Exhibit F.  Letter, SAF/MIBR, dated 5 Apr 02.
     Exhibit G.  Memorandum, 469 ABG/JA, dated 21 Jun 02.

                                   

AFBCMR 01-03465

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:

	    a.  The period 3 April 2001 to 1 May 2001 was not lost time; that all references thereto be, and hereby is, deleted from his records; and, that he is entitled to full pay and allowances during this period.

	    b.  His Total Active Military Service Date and Pay Date is 23 June 1999.

	    c.  His date of rank to the grade of airman first class is 6 August 1999.

	    d.  He was promoted to the grade of senior airman effective and with date of rank
6 December 2001.