RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00142
		INDEX NUMBER:  123.00
	XXXXXXX	COUNSEL:  None

	XXXXXXX	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His service dates be adjusted to remove the lost time he was given for the period 19 Oct 02 to 11 Jun 03.

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APPLICANT CONTENDS THAT:

He was acquitted of all charges against him during a General Court-Martial.

In support of his appeal, applicant provides copies of AF Form 2098 showing the lost time he was assessed and a copy of the General Court-Martial order showing the finding of not guilty.

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

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STATEMENT OF FACTS:

The applicant is presently serving on active duty in the grade of technical sergeant (E-6).  He was tried by General Court-Martial for the alleged offense of attempted robbery with a deadly weapon.  He was acquitted of the charges.

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AIR FORCE EVALUATION:

AFPC/DPPAOR recommends that the applicant’s appeal be denied.  The statute covering lost time requires that a member be charged lost time for all time spent in confinement.  In support of this view, AFPC/DPPAOR has attached a legal opinion, dated 24 Aug 00, prepared by the AFPC Chief of Military Personnel Law.

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 5 Mar 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.  Based on the applicant being found not guilty of alleged offenses in a general court-martial, we believe that the 232 days of lost time he was assessed due to his confinement unfairly affected his Air Force career and thereby constitutes an injustice.  However, as noted in the advisory opinion provided by AFPC/DPPAOR, we are precluded by statute from providing the actual relief requested, removing the lost time from the applicant’s record.  We are able to provide the applicant a measure of relief by correcting his record to eliminate any effect of the lost time that is a matter of policy.  In that regard, we note that the applicant’s pay date has been adjusted, that he did not receive pay and allowances during the period of lost time, and that he was rendered ineligible for promotion during cycle 03E7.  We believe that it would be appropriate to correct these items in the applicant’s record.  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 11 May 83 and his pay date is 16 Feb 82.

		b. He was in a temporary duty status for a sufficient period of time beginning 23 Oct 02 and was paid total per diem in an amount equivalent to 232 days of pay and allowances.

It is further recommended that he be provided supplemental consideration for promotion to the grade of master sergeant (E-7) beginning with cycle 03E7.

If AFPC discovers any adverse factors during or subsequent to supplemental consideration that are separate and apart, and unrelated to the issues involved in this application that would have rendered the applicant ineligible for the promotion, such information will be documented and presented to the Board for a final determination on the individual’s qualifications for the promotion.

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The following members of the Board considered Docket Number BC-2004-00142 in Executive Session on 1 June 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 2 Jan 04, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPPAOR, dated 25 Feb 04.
     Exhibit D.  Letter, SAF/MRBR, dated 5 Mar 04.

                                   Panel Chair

AFBCMR BC-2004-00142

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 XXXXXXX, XXXXXXX, be corrected to show that:

		a. His Total Active Federal Military Service Date remains 11 May 83 and his pay date is 16 Feb 82.

		b. He was in a temporary duty status for a sufficient period of time beginning      23 Oct 02 and was paid total per diem in an amount equivalent to 232 days of pay and allowances.

	It is further directed that he be provided supplemental consideration for promotion to the grade of master sergeant (E-7) beginning with cycle 03E7.

	If AFPC discovers any adverse factors during or subsequent to supplemental consideration that are separate and apart, and unrelated to the issues involved in this application that would have rendered the applicant ineligible for the promotion, such information will be documented and presented to the Board for a final determination on the individual’s qualifications for the promotion.

		
		Director
		Air Force Review Boards Agency