RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00528
		INDEX CODE:  123.04
		COUNSEL:  

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Two days counted against him as lost time be restored.  

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APPLICANT CONTENDS THAT:

All charges against him were dismissed in Magistrate Court.

In support of his request, applicant provided a copy of his AF Form 2098, Duty Status Change; an excerpt from AFI 36-2134, State of New Mexico Magistrate Court documentation, and his Leave and Earnings Statement.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force on 4 Dec 98.  He has been progressively promoted to the grade of staff sergeant, having assumed that grade effective and with a date of rank of 1 Mar 03.  He was involuntarily placed in civilian confinement from 10 Jan 04 through 11 Jan 04 for aggravated assault.  Because the victim could not be located, his aggravated assault charge was dismissed without prejudice and the case was closed.

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AIR FORCE EVALUATION:

AFPC/DPPAOR recommends denial.  DPPAOR states the governing statute, 10 USC 972, requires that a member be charged lost time for all time spent in confinement.  The DPPAOR evaluation 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 26 Mar 04 for review and comment within 30 days.  As of this date, this office has received no response.

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ADDITIONAL AIR FORCE EVALUATION:

AFPC/JA recommends denial.  JA states the basis for his claim is that he was not prosecuted for the crime for which he was confined.  The Air Force did not err in characterizing the time he spent in confinement as lost time.  Under the current statute an enlisted member of an armed force who is confined by military or civilian authorities 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 the member's term of enlistment.  The statute provides no exceptions.  Thus time lost applies whether a trial results in a conviction, an acquittal, or even if the member is never actually brought to trial.  Although application of 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.  His girlfriend reported to the police he threatened her with a gun when she told him she was pregnant.  She then left her home and cannot be located.  It was the disappearance of the victim, rather than a determination he was not guilty that resulted in the charge not being brought to trial.  If and when the police are able to locate the applicant's girlfriend, the case could be prosecuted.  He has submitted no information to deny commission of the offense or in any other way prove he did not commit the alleged offense.  

The JA evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 30 Apr 04 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 dismissed by civilian authorities.  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 appropriately reflect the two 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-2004-00528 in Executive Session on 30 Jun 04, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 11 Feb 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPAOR, dated 19 Feb 04, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 26 Mar 04.
    Exhibit E.  Letter, AFPC/JA, dated 22 Apr 04.
    Exhibit F.  Letter, SAF/MRBC, dated 30 Apr 04.