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AF | BCMR | CY2003 | BC-2003-01310
Original file (BC-2003-01310.doc) Auto-classification: Approved

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-01310
            INDEX NUMBER:  123.00
      XXXXXXXXXXXXX    COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

The 18 days of lost duty time he received  as  a  result  of  civilian
confinement be restored.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Prior to his confinement he had an impeccable record.

When his case was presented to a Grand Jury, he was  “No  Billed”  and
released from subsequent charges.

In support of his appeal, applicant submits a copy  of  the  paperwork
showing that he was not charged and  a  letter  of  support  from  his
commander requesting favorable consideration of his request.

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

_________________________________________________________________

STATEMENT OF FACTS:

According to documents provided by the applicant, he was  confined  by
civilian authorities from 1 thru 18 Nov 02  for  an  alleged  offense,
resulting in his being charged 18 days of lost time.  On 18 Nov 02, he
was released from confinement without charges being filed.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPW advises that current law precludes  them  from  removing  the
“lost time” from the applicant’s record.  They provide an overview  of
the United States Code and DoD directives that specify when  a  member
is charged lost time.  The last amendment to the law in  1996  changed
the language regarding “lost time” to include “in  connection  with  a
trial.”  The language of the statute could clearly cause  an  inequity
or injustice to those members who  have  been  acquitted  or  received
similar disposition of their case.

The complete evaluation is at Exhibit C.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
30 May 03 for review and response within 30 days.  To date, a response
has not been received.

_________________________________________________________________

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.  The assessment of lost time can have
a deleterious effect on an individual’s  career.   Unfortunately,  the
wording of the applicable law requires it to be assessed in situations
where it appears unwarranted.  Such is the applicant’s case.  Although
confined by civilian authorities for  18  days,  he  was  subsequently
cleared and not charged with an offense.  The majority  of  the  Board
believes this constitutes  an  injustice.   We  note  that  there  are
ongoing efforts to change  the  language  of  the  applicable  law  to
preclude these types of cases.  The Board has been previously  advised
that it has the authority to remove lost time and  has  done  so.   In
view of the circumstances of  this  case,  a  majority  of  the  Board
recommends that the applicant’s lost time be removed.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show  that  the  period       1
November 2002 to  18  November  2002  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.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 2 July 2003, under the provisions of AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Mr. John B. Hennessey, Member
      Ms. Barbara J. White-Olson, Member

By  majority  vote,  the  Board  voted  to  correct  the  records,  as
recommended.  Ms. White-Olson voted to deny the request  and  did  not
desire  to  submit  a  minority  report.   The  following  documentary
evidence was considered:

    Exhibit A.  DD Form 149, dated 2 Apr 03.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPW, dated 22 May 03, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 30 May 03.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair
AFBCMR BC-2003-01310


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:

XXX-XX-XXXX, be corrected to show that the period 1 November 2002
to 18 November 2002 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.






            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency


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