RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-02352
            INDEX CODE:  123.07

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

The period of his service that was considered “lost time” be  restored
to his period of active service.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was held in pretrial confinement from 13 Apr  02  until  12 Sep 02,
when he was  acquitted  by  a  court-martial.   At  the  time  of  his
acquittal, he was assured that his time in confinement  would  not  be
held against him in any way.  This was told to him by both his counsel
and the judge.  However, when he returned, he discovered that his date
of enlistment had been set forward five months due to his “lost time.”

In support of his appeal, the applicant provided a copy of the  court-
martial order and documents pertaining to his duty status change.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 13 Apr  02,  the  applicant  was  placed  in  pretrial  confinement
awaiting trial on charges of attempted conspiracy to commit murder and
wrongfully advising another airman to commit murder.

On 12 Sep 02, the applicant was found not guilty  of  the  charges  of
attempted conspiracy to commit murder and wrongfully advising  another
to commit murder, resulting in his release from confinement.

Information extracted from the Personnel Data System  (PDS)  indicates
that the applicant is currently serving on active duty in the grade of
airman first class, with a date of rank (DOR) of 24 Oct 01.  His Total
Active Federal Military Service Date (TAFMSD) is 2 Sep 01.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPWR indicated that current law precludes them from  recommending
removal of the lost time from the applicant’s  records.   However,  if
the decision is to grant the relief  sought,  the  records  should  be
corrected to show zero days of lost time.

A complete copy of the AFPC/DPWR evaluation is at Exhibit B.

AFPC/JA indicated that even though the evidence clearly  supports  the
applicant’s contention that he was acquitted of  the  crimes  alleged,
there was no evidence that the Air Force committed procedural error in
placing the applicant in  pretrial  confinement.   The  applicant  was
suspected of serious crimes and was offered a hearing to determine  if
pretrial detention was warranted.  Although the  applicant  was  later
acquitted of those crimes in a  fully  litigated  trial,  the  correct
procedural process was followed.  According to AFPC/JA, the Air  Force
also did not err in characterizing the time  the  applicant  spent  in
pretrial confinement as time lost.

Because of the plain language of the statute applicable in this  case,
AFPC/JA stated that they believe that there was no error on  the  part
of Air Force officials in characterizing the time the applicant  spent
in pretrial confinement as time lost.   Nevertheless,  they  recognize
that the statute as written today could create a  situation  where  an
individual  is  charged  bad  time  unjustly,  creating  an  injustice
warranting this Board’s intervention.   In  fact,  they  recently  had
cause to recommend relief where  an  individual  presented  persuasive
evidence that he was wrongly confined for a crime he did  not  commit.
Under those circumstances, they agreed that charging  bad  time—though
legally permissible—constituted an injustice.

Notwithstanding the evidence presented by the applicant  that  he  was
acquitted of the charged offenses at his court-martial; AFPC/JA  noted
that he has not denied having  committed  the  offenses,  nor  has  he
offered independent evidence establishing  that  his  confinement  was
improper.  Under these  circumstances,  AFPC/JA  indicated  the  Board
could  determine  that  the  acquittal  alone  constituted  sufficient
evidence  to  establish  an  injustice  warranting  approval  of   the
application.  However, they do not believe that this evidence  compels
such a result.  They leave that decision  to  the  discretion  of  the
Board.

A complete copy of the AFPC/JA evaluation is at Exhibit C.

AFPC/DPPPWB noted that the applicant is currently serving in the grade
of airman first class with a date of rank (DOR)  of  24 Oct 01.   They
also noted that his TAFMSD was 3 Apr 01, but was changed to 2  Sep  01
due to the lost time.  Based on his DOR,  AFPC/DPPPWB  indicated  that
the applicant will be eligible for promotion to senior  airman  on  24
Feb 04, regardless of which TAFMSD is used.  However,  the  date  will
affect future promotion considerations  to  staff  sergeant  to  chief
master sergeant, since he will receive weighted points  based  on  his
TAFMSD.

A complete copy of the AFPC/DPPPWB evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to applicant  on  7
Nov 03 for review and response.  As of this date, no response has been
received by this office (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.  Sufficient relevant evidence has been presented to demonstrate the
existence of an injustice.  The evidence of record indicates that  the
applicant was held in pretrial confinement awaiting trial  on  charges
of attempted conspiracy  to  commit  murder  and  wrongfully  advising
another airman to commit  murder  from  13   Apr  02  to  11  Sep  02.
However, he was subsequently found not guilty of the charges.  We find
no evidence that the Air Force erred in characterizing  the  time  the
applicant spent in pretrial confinement as lost time.  Notwithstanding
this, in our view, to continue to characterize the period of  pretrial
confinement as lost time in light  of  his  acquittal  constitutes  an
injustice to the applicant.  In view of the  foregoing,  we  recommend
that the applicant’s records be corrected as set forth below.

_________________________________________________________________

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  of
13 Apr 02 to 11 Sep 02 was not lost time, and that he is  entitled  to
full pay and allowances for this time period.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2003-02352 in Executive Session on 18 Dec 03, under the provisions  of
AFI 36-2603:

      Ms. Carolyn J. Watkins-Taylor, Panel Chair
      Mr. Roscoe Hinton, Jr., Member
      Ms. Martha J. Evans, Member

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

     Exhibit A.  DD Form 149, dated 15 Jun 03, w/atchs.
     Exhibit B.  Letter, AFPC/DPWR, dated 13 Aug 03.
     Exhibit C.  Letter, AFPC/JA, dated 18 Sep 03.
     Exhibit D.  Letter, AFPC/DPPPWB, dated 22 Oct 03.
     Exhibit E.  Letter, SAF/MRBR, dated 7 Nov 03.




                                   CAROLYN J. WATKINS-TAYLOR
                                   Panel Chair










AFBCMR BC-2003-02352




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 , be corrected to show that the period of 13 Apr 02
to 11 Sep 02 was not lost time, and that he is entitled to full pay
and allowances for this time period.





    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency