RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-01044
		INDEX CODE:  123.06
	XXXXXXXXXXXXXX	COUNSEL:  NONE	
		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Two days lost time be restored.

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APPLICANT CONTENDS THAT:

Applicant offers no contentions.  

In support of his request, applicant provides a statement from his commander, a copy of the letter from the District Attorney of Clark County, Nevada and a copy of the Security Forces investigation report.  

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

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STATEMENT OF FACTS:

The applicant is currently serving on active duty in the grade of senior airman (E-4) at Nellis AFB, NV. 

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AIR FORCE EVALUATION:

AFPC/DPSO recommends the application be denied.  DPSO states that the applicant was placed in custody for a battery charge.  A letter from the District Attorney’s office informed the applicant that they determined not to file formal charges.  They also stated that they retain the right to file charges at a later time.  IAW Title 10 U.S.C., Section 972, paragraph (c)(1)(A) recoupment of time lost can not be granted since the charges were not dismissed before or during a trial in a final disposition of the charge; or (B) the trial results in an acquittal of the charge.  The AFPC/DPSO complete evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was sent to the applicant on 13 July 2007 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:

HQ AFPC/JA recommends denial.  JA states the filing of a District Attorney’s statement as to why any information should not be filed against a defendant does not operate as a dismissal of the case.  Dismissal can be made only by order of a court having proper jurisdiction.  Accordingly, it is not the action or inaction of the District Attorney in Nevada that serves to dismiss the charge.  As such, advises JA, the Secretary is not required to waive the applicant’s lost time.  The AFPC/JA complete evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was sent to the applicant on 25 Jan 08 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.  The applicant contends that his two days lost time while he was in confinement should be counted as duty time.  We took note of the commander’s letter stating that the assault and battery charges against the applicant were dropped.  However, we also note the District Attorney maintains the prerogative to resurrect the charges against the applicant.  The applicant was not present for duty during his confinement and we feel the Air Force appropriately exercised the statue governing Lost Time under the circumstances of this case.  Therefore, we concur with the opinion 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.  Accordingly, the applicant’s request is not favorably considered.  

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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 Docket Number BC-2007-01044 in Executive Session on 28 Aug 07 and 25 Feb 08, under the provisions of AFI 36-2603:

			XXXXXXXXXX, Panel Chair
			XXXXXXXXXX, Member
			XXXXXXXXXX, Member

The following documentary evidence pertaining to Docket Number BC-2007-01044 was considered:

    Exhibit A.  DD Form 149, dated 23 Jan 07, w/atchs.
    Exhibit B.  Letter, AFPC/DPSO, dated 14 Jun 07.
    Exhibit C.  Letter, SAF/MRBR, dated 13 Jul 07.
    Exhibit D.  Letter, AFPC/JA, dated 15 Jan 08.
    Exhibit E.  Letter, SAF/MRBR, dated 25 Jan 08.

                                   XXXXXXXXXX
                                   Panel Chair