RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00828
		INDEX CODE:  100.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to retrieve 57 days of lost time he spent in confinement awaiting trial in civilian court.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The 57 days should not be charged as lost time because he was not prosecuted for the crime for which he was accused.

Applicant's complete submission, with attachments, is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant is currently serving on active duty in the grade of senior airman.

The applicant, on 25 August 2002, was involved in a verbal disagreement with two civilians and discharged a firearm.  He was arrested by the Fort Walton, FL, Police Department and charged with Shooting or Discharging a Firearm from a Vehicle.  He was confined from 25 August through 21 October 2002.  

On 26 November 2002, the charges against the applicant were dismissed due to the victims failing to cooperate with the investigation and prosecution and the eyewitness lying under oath.

On 3 March 2003, the applicant received a Letter of Reprimand (LOR) for his misconduct with civil authorities.  The LOR was filed in an Unfavorable Information File (UIF) and he was placed on the control roster for six months.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPAOR states they are not the office of primary responsibility for this issue and refers the case to AFPC/DPW and JA (Exhibit C).

HQ AFPC/JA states the evidence clearly supports the applicant’s contention that he was not prosecuted for the crime he was charged.  However, JA believes the Air Force did not err in characterizing the time the applicant spent in confinement as time lost.  Title 10 United States Code (USC) Section 972(a)(3), states “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, whether before, during or after trial, is liable after his return to full duty, to serve the time lost in confinement by adding it to the member’s term of enlistment.”  According to the current statute, servicemembers are charged time lost for any time spent in confinement “in connection with a trial.”  The statute provides no exceptions.  Therefore, time lost applies whether a trial results in a conviction, an acquittal, or even if the servicemember is never actually brought to trial.  

AFPC/JA further states applying the plain meaning of the statute may potentially create an inequity or injustice for the servicemembers who were not convicted of the offense for which they were charged.  JA does not believe the application of this statute in the applicant’s case has caused him an injustice.  Furthermore, the court documents show the reason for dismissal was due to a lack of cooperation from the victims and not a determination of the applicant’s innocence.  The applicant has not alleged any error in his confinement.  JA recommends the requested relief be denied.

A complete copy of the evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and states his interpretation of his situation was that if his case was dismissed and he was never charged he should receive his lost time back.  He felt his life was in danger and thought the only 
way to handle the situation was to defend himself.  He also believes he should not have been arrested or confined.  He further believes since the witnesses lied under oath his lost time should be restored (Exhibit E).

_________________________________________________________________

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 an error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the AFPC/JA and adopt their rationale as the basis for our decision the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  Under the current statute, servicemembers are charged time lost for any time spent in confinement in connection with a trial.  Furthermore, court documents show the case against the applicant was dismissed due to lack of cooperation from the individuals involved and not a determination of his innocence.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice and that there was no evidence that he applied for and was denied the opportunity to take the leave he is requesting to be restored; 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.

_________________________________________________________________

The following members of the Board considered this application in Executive Session on 4 August 2004, under the provisions of AFI 36-2603:

The following documentary evidence relating to AFBCMR Docket Number BC-2004-00828 was considered:

   Exhibit A.  DD Form 149, dated 3 Mar 04, w/atchs.
   Exhibit B.  Applicant’s Military Personnel Records.
   Exhibit C.  Letter, AFPC/DPPAOR, undated.
   Exhibit D.  Letter, AFPC/JA, 13 May 04.
   Exhibit E.  Letter, SAF/MRBR dated 21 May 04.
   Exhibit F.  Letter, Applicant’s Response, dated 9 Jun 04.