RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  01-03465
            INDEX NUMBER:  123.00

      XXXXXXXXXXXXXXX  COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  No

_______________________________________________________________

APPLICANT REQUESTS THAT:

The 30 days time loss incurred while he was in pre-trial confinement be
removed from his records.

He be promoted to senior airman (SrA) effective 6 Dec 01  vice   5  Jan
02.

_______________________________________________________________

APPLICANT CONTENDS THAT:

He was placed in pre-trial  confinement  in  Germany,  while  still  on
leave, due to an outstanding warrant for his arrest.  He was not  aware
of the arrest warrant.  The charges against him were dropped in Oct 01.

In support of his request, applicant provides a  letter  of  evaluation
and reference prepared by the Host Nation (German) legal advisor.

The applicant’s complete submission is at Exhibit A.

_______________________________________________________________

STATEMENT OF FACTS:

Applicant is presently serving on active duty in the  grade  of  airman
first class (A1C). He entered active duty on  23  Jun  99.   His  Total
Active Federal Military Service Date (TAFMSD),  due  to  30  days  lost
time, is 22 Jul 99.

_______________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPW recommends denial of the applicant’s request to restore his
time lost.  They have attached a copy of a legal  opinion  prepared  by
AFPC/JA that advises that the applicant’s request does not comply  with
United States Code (USC), Section 972, Title 10.

The complete evaluation, with attachments, is at Exhibit C.

HQ AFPC/DPPAO recommends denial of the applicant’s  request  to  adjust
his TAFMSD and  paydate.   The  applicant’s  TAFMSD  and  paydate  were
adjusted to reflect the time lost.

The complete evaluation is at Exhibit D.

HQ AFPC/DPPPWB recommends that the applicant’s date of  rank  (DOR)  to
both A1C and SrA be adjusted accordingly if his request to restore lost
time is granted.

The complete evaluation is at Exhibit E.

_______________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant  on
5 April 2002 for review  and  comment  within  30  days.   To  date,  a
response has not been received.

_______________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to  the  Board’s  request,  the  Staff  Judge  Advocate  (SJA)
referenced by the applicant as having knowledge of his case, provided a
statement to clarify the circumstances of the  applicant’s  case.   She
provided the sequence  of  events,  as  she  understood  them  to  have
occurred.  She asks the Board to  favorably  consider  the  applicant’s
appeal.  She indicates that she truly  believes  that  the  applicant’s
incarceration was not due to his misconduct  and  should  not  be  held
against him.  The dismissal of all charges  against  the  applicant  is
strong evidence that criminal proceedings were not warranted.

The complete statement is at Exhibit G.

_______________________________________________________________

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.  After reviewing the complete evidence
of record, it appears that the applicant’s incarceration was due  to  a
series of administrative errors rather than  misconduct  on  his  part.
The statement from the Staff Judge Advocate, who had knowledge  of  the
unique circumstances in this case, indicates that the applicant  is  an
outstanding Air Force member and that  the  dismissal  of  all  charges
against  him  is  strong  evidence  that  criminal   proceedings   were
unwarranted.  While we  note  the  legal  opinion  indicates  that  the
removal of lost time is a violation of the applicable law, we have been
subsequently informed that this Board has the authority to remove  lost
time.  In view of the above findings we  recommend  the  lost  time  be
removed from  applicant’s  records.   In  addition,  applicant’s  Total
Active Federal Military Service Date, pay  date,  and  promotion  dates
should be adjusted.  We also note that applicant requested the  removal
of 30 days of lost time; however,  it  appears  that  he  was  actually
charged for 29 days.  Therefore,  we  recommend  that  his  records  be
corrected to the extent indicated below.

_______________________________________________________________

THE BOARD RECOMMENDS THAT:

      The pertinent military records of the Department of the Air Force
relating to APPLICANT, be corrected to show that:


           a.  The period 3 April 2001 to 1 May 2001 was not lost time;
      that all references thereto be deleted from his records; and, that he
      is entitled to full pay and allowances during this period.


           b.  His Total Active Military Service Date and Pay Date is 23
      June 1999.


           c.  His date of rank to the grade of airman first class is 6
      August 1999.


           d.  He was promoted to the grade of senior airman effective and
      with date of rank 6 December 2001.

_______________________________________________________________

The following members of the Board considered Docket Number 01-03465 in
Executive Session on 5 June 2002 and 27 June 2002, under the provisions
of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Vice Chair
      Mr. John B. Hennessey, Member
      Mr. Michael Maglio, Member

All  members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 30 Nov 02, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPW, dated 25 Feb 02, w/atch.
     Exhibit D.  Memorandum, AFPC/DPPAO, dated 11 Mar 02.
     Exhibit E.  Memorandum, AFPC/DPPPWB, dated 15 Mar 02,
                 w/atch.
     Exhibit F.  Letter, SAF/MIBR, dated 5 Apr 02.
     Exhibit G.  Memorandum, 469 ABG/JA, dated 21 Jun 02.




                                   THOMAS S. MARKIEWICZ
                                   Vice Chair

AFBCMR 01-03465


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 XXXXXXXXXX, XXX-XX-XXXX, be corrected to show
that:

          a.  The period 3 April 2001 to 1 May 2001 was not lost
time; that all references thereto be, and hereby is, deleted from
his records; and, that he is entitled to full pay and allowances
during this period.

          b.  His Total Active Military Service Date and Pay Date
is 23 June 1999.

          c.  His date of rank to the grade of airman first class
is 6 August 1999.

          d.  He was promoted to the grade of senior airman
effective and with date of rank
6 December 2001.






            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency