RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03026
		INDEX CODE:  123.04
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  The number of lost days counted against him be restored.

2.  His reenlistment eligibility (RE) code be changed.

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APPLICANT CONTENDS THAT:

In accordance with MPFM 01-21 and AFI 36-2134 "time spent in confinement is considered to be non-creditable service and must be charged as lost time except if the member is released without trial, acquitted, or the conviction is set aside on legal grounds please contact AFPC/DPWROP for procedures."  His charges were acquitted or deemed "nolle prosequi."

In support of his request, applicant provided a copy of his nolle prosequi letter and AF Forms 2098, Duty Status Change. 

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force on 27 Feb 98.  He has been progressively promoted to the grade of senior airman, having assumed that grade effective and with a date of rank of 27 Feb 01.  He currently has a RE code of "4F" which denotes "Five or more days lost time during current enlistment."

Applicant was placed in pretrial confinement on 25 Aug 02, awaiting trial on a charge of shooting or discharging a firearm from a vehicle.  The Assistant State's Attorney decided not to prosecute the case because the victims would not cooperate and an eyewitness lied under oath.  He was released from confinement on 24 Oct 02.  The period 25 Aug 02 through 22 Oct 02 is considered as 59 days of lost time.

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AIR FORCE EVALUATION:

AFPC/JA recommends denial.  JA states that even though the evidence supports he was not prosecuted for the crimes alleged, there is no evidence that the state committed procedural error in placing him in pretrial confinement.  The Air Force did not err in characterizing the time he spent in pretrial confinement as time lost.  An enlisted member who is confined for more than one day in connection with a trial is liable after his return to duty to serve the time lost by adding it to his term of enlistment.  The time lost applies whether a trial results in a conviction, an acquittal, or even if a member is never actually brought to trial.  Although applying the plain meaning of the statute can potentially create an inequity or injustice for those who are not convicted of the offense charged, JA does not believe application of the statute in this case has caused an injustice to the applicant.  It was a lack of cooperation from victims, rather than a determination that the applicant was not guilty that resulted in the charge not being brought to trial.  He has submitted no information to deny commission of the offense or in any other way prove that he did not commit the alleged offense.  The JA evaluation is at Exhibit B.  

AFPC/DPW recommends denial.  DPW states that in accordance with the United States Code, DoD Financial Management Regulation, and AFCSM 36-699, any time a member spends in AWOL status, desertion, or any confinement status, whether it is pre or post-trial or in connection with a trial, is considered non-creditable service and is referred to as "lost time."  The DPW evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 26 Nov 03 for review and comment within 30 days.  As of this date, this office has received no response.

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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.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We find no evidence of an error in this case and after thoroughly reviewing the evidence of record and the applicant's submission, we do not believe he has been the victim of an injustice.  The applicant contends that his lost-time should be removed from his record because his charges were deemed nolle prosequi by the civilian court.  It is our opinion that although the applicant was never brought to trial, there is no evidence that the state committed procedural error in placing him in confinement.  Accordingly, it is our opinion that the applicant's records and the corresponding RE code appropriately reflect the 59 days he spent in civilian confinement as lost-time.  Therefore, we agree with the opinions and recommendation of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  In the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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.

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The following members of the Board considered AFBCMR Docket Number BC-2003-03026 in Executive Session on 17 Feb 04, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 2 Oct 03, w/atchs.
    Exhibit B.  Letter, AFPC/JA, dated 3 Nov 03.
    Exhibit C.  Letter, AFPC/DPW, dated 19 Nov 03, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 26 Nov 03.