RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00021
		INDEX NUMBER:  123.00
		COUNSEL:  None

		HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

The 96 days of lost time he incurred due to being involuntarily confined while awaiting trial in civilian court be removed from his record.

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APPLICANT CONTENDS THAT:

He was found not guilty of all charges.  In support of his appeal, he provides a supporting statement from his commander and a copy of the court document reflecting the finding of not guilty.

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

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STATEMENT OF FACTS:

According to the personnel data system, the applicant entered active duty on 24 Nov 98.  He was charged 96 days of lost time due to being incarcerated while awaiting trial on civilian charges.  His adjusted Total Active Federal Military Service Date due to lost time is 28 Feb 99.

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AIR FORCE EVALUATION:

AFPC/DPPAOR recommends denial of the applicant’s request.  The statute governing “lost time” requires that a member be charged lost time for all time spent in confinement.  They attach a legal opinion prepared by AFPC/JA, dated 24 Aug 00, stating this fact.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 6 Feb 04 for review and comment within 30 days.  To date, a response has not been received.

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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 warranting a measure of relief.  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 that he has suffered an injustice due to the consequences of the lost time, i.e., loss of pay and change of pay date.  In an effort to afford the applicant full, yet fair relief in this regard, 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.  In regards to promotion opportunity, based on the applicant’s date of rank as a senior airman, his eligibility to test for promotion to staff sergeant has not been impacted.  Although the applicant is ineligible to reenlist because of the lost time, his reenlistment eligibility code is waiverable by his squadron commander.  Therefore, we recommend that the applicant’s records be corrected as 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. His Total Active Federal Military Service Date remains 28 Feb 99 and his pay date is 24 Nov 98.

		b. He was in a temporary duty status for a sufficient period of time beginning 12 Nov 03 and was paid total per diem in an amount equivalent to ninety-six (96) days of pay and allowances.

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The following members of the Board considered Docket Number BC-2004-00021 in Executive Session on 20 April 2004, 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 18 Dec 03, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPPAOR, dated 03 Feb 04,
                 w/atch.
     Exhibit D.  Letter, SAF/MRBR, dated 6 Feb 04.

                                   Chair

AFBCMR BC-2004-00021

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 [APPLICANT], be corrected to show that:

		a. His Total Active Federal Military Service Date remains 28 Feb 99 and his pay date is 24 November 1998.

		b. He was in a temporary duty status for a sufficient period of time beginning 12 Nov 03 and was paid total per diem in an amount equivalent to ninety-six (96) days of pay and allowances.

		
		Director
		Air Force Review Boards Agency