ADDENDUM TO
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:                       DOCKET NUMBER:  BC-1982-01513
                                             INDEX CODE 123.04, 134.00
                                             COUNSEL:  None

                                             HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

In his appeal for reconsideration, he asks that three days of lost time  (1-
3 Nov 74), as well as information used by the Air Force to justify the  lost
time, be expunged from his DD Form 214 and records.
_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on  10  Jun  1971  for  four
years. He  was  in  the  custody  of  the  Sacramento  county  sheriff  from
1 through 3 Nov 74 for possession of a controlled substance. On 27  Feb  75,
he pled guilty to the charge of possession of  a  controlled  substance  and
was placed on probation for one year. The district court ordered that,  upon
completion of the  probation  without  violation,  the  applicant  would  be
discharged  from  probation  and  the  proceedings  against  him  would   be
dismissed without adjudication of guilt. The 1-3 Nov 74  period  he  was  in
custody was lost time and, as a result, his original date of separation  was
changed from 9 Jun 75 to 12 Jun 75. The applicant was  honorably  discharged
at the expiration of his term of service on 12 Jun 75  with  four  years  of
active service. His DD Form 214 reflects three days (1-3  Nov  74)  of  lost
time.

In January 1982, the applicant requested his  DD  Form  214  be  amended  to
reflect that, among other things, the period 1-3 Nov 74 was  not  lost  time
and he had a total of four years and  three  days  of  active  service.   HQ
AFMPC/JA provided an advisory, which  the  applicant  did  not  rebut.   The
Board denied the applicant’s request on 20 Oct 82.  (The  applicant’s  other
requests pertaining to his birth date and separation address were  corrected
administratively.)

For  an  accounting  of  the  facts  and   circumstances   surrounding   the
applicant’s separation and the rationale of  the  earlier  decision  by  the
Board, see the Record of Proceedings at Exhibit E.

On 20 May 02, the National  Personnel  Records  Center  (NPRC)  advised  the
Office of Veterans’ Service in HI  that  they  were  unable  to  locate  the
applicant’s records despite an extensive search. Other than the  amended  DD
Form 214, the  applicant’s  military  records  remain  unavailable  and  are
presumed lost. The DD Form 214 was administratively corrected  with  respect
to the applicant’s birth date and separation address (part of  his  original
appeal).

The applicant requested reconsideration several times throughout the  years.
 In his latest attempt, he again asks that the three days of lost  time,  as
well as information used by the Air Force  to  justify  the  lost  time,  be
expunged from his DD Form 214 and records. He now contends the use  of  this
information by the Air Force is in violation of the  version  of  Title  21,
USC, S.844(b) at that time. He  provides  documents  indicating  he  has  no
criminal record because he successfully completed probation.  He  apparently
is or has been attempting to gain some form  of  government  employment  and
seems to believe the lost time is having a negative impact.

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

Pursuant to the Board's request, the Federal Bureau of Investigation  (FBI),
Washington, D.C., provided an investigative report, which reflects the  1974
arrest and disposition. A copy of the report is attached at Exhibit G.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ  USAF/JAG  provided  an  advisory  opinion  addressing  the   applicant’s
contentions. They note the applicant was  placed  in  the  county  sheriff’s
custody and was eventually  convicted  of  simple  possession.  Pursuant  to
Title 21, USC, Section 844(b), the court deferred any adjudication of  guilt
until the end of an uneventful one-year probationary period, at  which  time
the court dismissed the charge. They add that, if  the  applicant  had  been
under 21 years of age at the time of the offense, he could have  applied  to
the court for “an  order  to  expunge  from  all  official  records  .  .  .
recordation relating  to  his  arrest,  indictment  or  information,  trial,
finding of guilt, and dismissal and discharge.” However, at the time of  the
offense, the applicant was over 21-years  of  age  and  expungement  was  an
unavailable option to him. The reference to lost time on the DD Form 214  is
not dependent upon a criminal proceeding outcome but rather it is  a  matter
of availability to fulfill a member’s military obligation or duty, and  thus
creditable service. Pursuant to Title 10, USC, Section 972(a),  confinement,
for whatever period and whether by  military  or  civilian  authorities,  is
deemed “time lost” from military service and must be “made up” by adding  it
to  the  period  of  time  before  a  member’s  absence  for  the   military
entitlement and fulfillment of enlistment term calculations. The three  days
of lost time were properly added to his obligated term of enlistment and  he
separated on 12 Jun 75. His reliance on Title 21, USC, Section 844(b),  [now
repealed] to remove the three lost days from his DD Form 214  is  misplaced.
The statute  in  question  only  addresses  the  conditional  discharge  and
potential expungement of court records related to conviction, for the  first
offense, of simple  possession  of  a  controlled  substance.  Finally,  the
applicant and others express concern over  the  adverse  employment  of  the
lost time reflected on the DD Form 214. How (if at all) this information  is
used by prospective employers to disqualify him  for  employment  is  beyond
the Board’s  and  the  Air  Force’s  scope  of  authority.  The  applicant’s
reconsideration request should be denied procedurally  for  its  failure  to
submit newly discovered relevant evidence not available  when  his  previous
application  was  considered,  as  well  as  on  its  merits  due   to   the
inapplicability of Title 21, USC, Section 844(b) to the lost  time  properly
defined and documented on his DD Form 214 in accordance with Title 10,  USC,
Section 972.

A complete copy of the evaluation, with attachments, is at Exhibit H.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant argues the  information  contained  in  the  advisory  opinion
violates Title 21, USC, Section 844(b). He contends that,  although  he  was
21 when the offense was committed, the judge and prosecution determined  his
involvement and willingness to come forward was enough to give him a  second
chance. He asserts the records pertinent to this case were  expunged.  There
is no arrest record, no incarceration, no conviction, and  no  admission  of
guilt--nothing except the Air Force  records  which  were  unlawfully  used.
The Board’s determination to enter the unlawful use of  information  by  the
Air Force is a violation of his civil rights and  the  law.  He  argues  the
lost time does affect his ability to sustain employment.  The  Board  should
not have access to any of the language associated with the offense.

The applicant’s complete rebuttal, with attachments, is at Exhibit J.

The applicant also wrote to his  Senator,  who  provided  a  letter  in  his
behalf.  The Senator’s letter,  and  the  applicant’s  letter  to  him,  are
attached at Exhibit K.

A copy of the FBI report (Exhibit G) was  forwarded  to  the  applicant  for
review and comment. The AFBCMR Staff also pointed out to the applicant  that
an FBI arrest record  may  be  what  is  affecting  his  alleged  employment
difficulties, especially since the DD Form 214 does  not  disclose  that  he
has an arrest record or what prompted the three days of lost  time.  A  copy
of the AFBCMR letter is at Exhibit L.

In a letter dated 11 Aug 03,  the  applicant  requested  that  his  case  be
temporarily withdrawn.  The AFBCMR Staff advised  the  applicant  by  letter
dated 14 Aug 03, that his case had been  temporarily  closed  until  he  was
ready to proceed.  Copies  of  these  letters  are  at  Exhibits  M  and  N,
respectively.

The applicant did not respond directly to the  AFBCMR.   Instead,  by  cover
letter dated 2 Aug 04, the applicant’s Senator forwarded the applicant’s  29
Jul 04 letter to SAF/LLI.   SAF/LLI  forwarded  the  correspondence  to  the
AFBCMR Staff.  Upon receipt, the AFBCMR Staff  presumed  the  applicant  was
reopening his case and initiated processing.

A copy of the Senator’s letter, with attachment, is at Exhibit O.
_________________________________________________________________

THE BOARD CONCLUDES THAT:

After  a  thorough  review  of  the  evidence  of  record  and   applicant’s
submission, we are not persuaded he has been the victim of either  an  error
or an injustice.  His contentions are duly noted; however, we  do  not  find
these assertions, in and by themselves, sufficiently persuasive to  override
the legal evaluation  and  rationale  provided  by  HQ  USAF/JAG.   In  this
respect, the applicant’s reliance on Title  21,  USC,  Section  844(b),  now
repealed, is misplaced.  Further,  the  reference  to  “lost  time”  on  the
applicant’s DD Form  214  is  not  dependent  upon  a  criminal  proceedings
outcome, but rather it is a matter of availability  to  fulfill  a  member’s
military obligation or duty and thus, creditable service.   The  three  days
of “lost time” were properly added to  his  obligated  term  of  enlistment.
How, if at all,  this  information  is  used  by  prospective  employers  to
disqualify him for employment is beyond the scope of authority of  both  the
Air  Force  and  this  Board.   We  therefore  agree  with   HQ   USAF/JAG’s
recommendations and adopt the rationale  expressed  as  the  basis  for  our
decision that the applicant has not sustained his burden of having  suffered
either an  error  or  an  injustice.   In  view  of  the  above  and  absent
persuasive evidence  to  the  contrary,  we  find  no  compelling  basis  to
recommend overturning the original panel’s decision to deny this appeal.

_________________________________________________________________

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.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 8 December 2004 under the provisions of AFI 36-2603:

                 Ms. Martha J. Evans, Panel Chair
                 Mr. Alan A. Blomgren, Member
                 Mr. Michael J. Novel, Member

The following documentary evidence relating to AFBCMR Docket Number BC-1982-
01513 was considered:

   Exhibit E.  Record of Proceedings, dated 17 Jan 83, w/atchs.
   Exhibit F.  DD Form 149, dated 24 Apr 03, w/atchs.
   Exhibit G.  FBI Report.
   Exhibit H.  Letter, HQ USAF/JAG, dated 10 Jun 03, w/atchs.
   Exhibit I.  Letter, AFBCMR, dated 20 Jun 03.
   Exhibit J.  Letter, Applicant, dated 27 Jun 03, w/atchs.
   Exhibit K.  Letter, Senator, dated 14 Jul 03, w/atchs.
   Exhibit L.  Letter, AFBCMR, dated 30 Jul 03.
   Exhibit M.  Letter, Applicant, dated 11 Aug 03.
   Exhibit N.  Letter, AFBCMR, dated 14 Aug 03.
   Exhibit O.  Letter, Senator, dated 2 Aug 04, w/atch.




                                   MARTHA J. EVANS
                                   Panel Chair