RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC 2004-03212
INDEX CODE:  121.00
	XXXXXXXXXXXXXXXXX				COUNSEL: NO

	XXX-XX-XXXX					HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT: 

His eleven days’ lost time be removed from his records and the days be restored as normal duty status.  
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APPLICANT CONTENDS THAT:

The period he spent in civilian confinement (26 January 2003 - 6 February 2003) should not be charged as lost time because no charges were ever filed against him after he was released.  

In support of his application, the applicant provides copies of military personnel documentation changing his service dates and duty information, his commander’s approval for a reenlistment waiver, commander’s approval for a detail assignment, enlisted performance report for the period 3 January 2003 through 15 December 2003, and an affidavit signed by the Assistant State Attorney that the State of XXXXXX does not intend to file criminal charges against the applicant at this time.  The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

According to the Military Personnel Data System (MilPDS), the applicant is currently serving on active duty in the rank of staff sergeant (E-5) with a Total Active Federal Military Service Date of 14 April 1996 (adjusted from 3 April 1996) and a Date of Separation of 31 January 2009.  His records reflect 11 days’ lost time starting on 26 January 2003.  MilPDS reflects the applicant has received five performance ratings with the last rating period closing 15 December 2004.  All performance ratings were an overall “5.”

The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letters prepared by the appropriate offices of the Air Force at Exhibits B and C.

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AIR FORCE EVALUATION:

AFPC/JA recommends denial.  JA states the applicant was arrested on 26 January 2003 for battery, domestic violence and aggravated assault and held without bond in the XXXXXX County, Florida, jail.  On 6 February 2003, the applicant was released from confinement.  The XXXXXXX County State’s Attorney Office filed notice with the local judicial circuit on 7 April 2003 that the State did not intend to prosecute the applicant at that time.  Because the State’s Attorneys maintain the prerogative to resurrect these charges against the applicant, this case lacks the finality intended in the 2005 amendment to the current statute governing lost time.  It is JA’s opinion that the Air Force did not err in characterizing the time the applicant spent in civilian confinement as lost time.  The JA evaluation, with attachment, is at Exhibit B.  

AFPC/DPPAOR recommends denial.  DPPAOR states that since the applicant spent 11 days’ in civilian confinement, he was not present for duty.  That time is lost, whether or not he was ultimately charged with anything.  It is DPPAOR’s opinion that the applicant did not provide any official documentation showing that his lost time should not be counted.  The DPPAOR evaluation is at Exhibit C.  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The State of Florida and the Air Force exonerated him of any wrongdoing.  He has presented documentation that no charges were ever filed against him and documentation that in the subsequent reporting period he was awarded the highest possible overall rating on his enlisted performance report (EPR).  In addition to his EPR rating, the Air Force saw fit to retain him in a competitive Special Duty assignment and recommend him for career progression within that Special Duty.  At the conclusion of his assignment, he was awarded the Air Force Commendation Medal.  He is distraught that while his headquarters, group, squadron, and commander saw the facts and stood by him, he is still being charged with 11 days lost time.  The only person who ever accused him of wrongdoing was a police officer not present during the alleged incident.  He was unjustly confined.  The applicant’s rebuttal, with attachment, is at Exhibit E.

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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 11 days’ lost time while he was in confinement should be counted as duty time.  We note that the applicant was not charged with battery, domestic violence and aggravated assault because his spouse recanted her accusations and did not press charges.  However, we also note the State’s Attorneys maintained 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 opinions of the Air Force Offices of Primary Responsibility that the applicant was not a 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 this application in Executive Session on 5 May 2005, under the provisions of AFI 36-2603:

The following documentary evidence for AFBCMR Docket Number BC 2004-03212 was considered:

    Exhibit A.  DD Form 149, dated 12 Oct 04.
    Exhibit B.  Letter, AFPC/JA, dated 12 Jan 05, w/atch.
    Exhibit C.  Letter, AFPC/DPPAOR, dated 4 Nov 04.
    Exhibit D.  Letter, SAF/MRBR, dated 14 Jan 05.
    Exhibit E.  Applicant’s Rebuttal, undated, w/atchs.