RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2003-03769
							INDEX CODE:  110.02
    XXXXXXXXXXXXXXXX			COUNSEL:  NONE

    XXXXXXXXXX					HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His lost time of 88 days, due to pretrial confinement, be changed to reflect normal duty status.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was found not guilty for the crime he was accused of; therefore, he should be credited with the 88 days he spent in pretrial confinement.  

In support of his appeal, the applicant provides a copy of his record of trial and his duty status change document.  His complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 1 November 2000, the applicant enlisted in the Regular Air Force at the age of 18 for a period of four years in the rank of airman basic (E-1).  The applicant was progressively promoted to the rank of senior airman (E-4) effective and with a date of rank of 27 January 2004.  

On 11 November 2002, the applicant was placed in pretrial confinement awaiting trial on a charge of assault with a dangerous weapon.  On 7 February 2003, a special court-martial found the applicant not guilty of the charge and he was released from confinement.  The applicant was held in pretrial confinement from 11 November 2002 to 6 February 2003, causing a total lost time of 88 days.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/JA recommends the AFBCMR determine if characterizing the applicant’s time in pretrial confinement, as time lost would be an injustice to him.  If so, JA recommends the Board approve the applicant’s request.  AFPC/JA states that even though the evidence clearly supports the applicant’s contention that he was acquitted of the crime alleged, there is no evidence that the Air Force committed a procedural error in placing the applicant in pretrial confinement.  The Air Force also did not err in characterizing the time the applicant spent in pretrial confinement as lost time.  Under the current statute, Title 10 United States Code, Section 972 (10 USC 972), members are charged lost time for any time spent in confinement “in connection with a trial.”  Thus, time lost applies whether a trial results in a conviction, an acquittal, or even if a member is never actually brought to trial.  It is JA’s opinion that application of the statute in this case, although technically correct, may have caused an injustice to the applicant.  The AFPC/JA evaluation is at Exhibit C.

AFPC/DPPAOR recommends the applicant’s request be denied.  DPPAOR states that the governing statue, 10 USC 972, requires that a member be charged lost time for all time spent in confinement.  The DPPAOR evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 16 April 2004 and 12 May 2004, copies of the Air Force evaluations were forwarded to the applicant for review and response within 30 days.  As of this date, this office has received no response.

_________________________________________________________________

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 an injustice.  Because of the plain language of the statute governing lost time, we are precluded, as a matter of law, from removing the lost time from the applicant’s records.  However, we are able to correct his records in regards to any impact caused by the lost time, which is a matter of policy.  Since the applicant was found not guilty of the charges that led to his confinement, we believe he has suffered an injustice due to the consequences of the lost time, i.e., loss of pay; loss of Time-In-Grade (TIG) for promotion to airman first class and senior airman; change of pay date; and change of Total Active Federal Military Service Date (TAFMSD).  In an effort to afford the applicant full relief, we contacted the Defense Finance and Accounting Service (DFAS-DE) and they determined that in order to provide the applicant reimbursement for the lost pay during the contested period, we would need to place him in a temporary duty (TDY) status a sufficient number of days and pay him per diem in an amount equivalent to the lost pay.  AFPC/DPPPW confirmed the applicant’s lost time caused an adjustment in his promotion to airman first class (A1C) (E-3) from 1 March 2002 to 28 May 2002, which consequently effected his TIG for promotion to senior airman (SrA)(E-4), resulting in his current DOR of 27 January 2004.  Therefore, we feel his records should be corrected to adjust his DORs to the original dates without the penalty of the 88 days lost time.  According to AFPC/DPPAC, the applicant’s TAFMSD and paydate should have been adjusted to reflect his lost time; however, upon checking, his dates had not been adjusted.  We feel the applicant’s TAFMSD and paydate should remain as 1 November 2000 and not be adjusted to reflect the lost time.  Therefore, we recommend that the applicant’s records be corrected as indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that:

	a.  His Total Active Federal Military Service Date and Pay Date remain 1 November 2000.

	b.  His Date of Rank (DOR) to the grade of Airman First Class be changed to 1 March 2002 and his DOR to the grade of Senior Airman be changed to 1 November 2003.

	c.  He was in a temporary duty status for a sufficient period of time beginning 11 November 2002 and was paid total per diem in an amount equivalent to eighty-eight (88) days of pay and allowances.  

_________________________________________________________________

The following members of the Board considered this application in Executive Session on 1 July 2004, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2003-03769:

	Exhibit A.  DD Form 149, dated 27 Oct 03, with attachments.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/JA, dated 14 Apr 04. 
	Exhibit D.  Letter, AFPC/DPPAOR, dated 27 Feb 04.
	Exhibit E.  Letter, SAF/MRBR, dated 16 Apr 04.

									

AFBCMR BC-2003-03769

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 XXXXXXXXXXXXXXXXXXXXXXX, be corrected to show that: 

		a.  His Total Active Federal Military Service Date and Pay Date is 1 November 2000.

		b.  His Date of Rank (DOR) to the grade of Airman First Class be changed to 1 March 2002 and his DOR to the grade of Senior Airman be changed to 1 November 2003.

		c.  He was in a temporary duty status for a sufficient period of time beginning 11 November 2002 and was paid total per diem in an amount equivalent to eighty-eight (88) days of pay and allowances.