RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  03-02175
                                        INDEX CODE:  110.02
                                        COUNSEL:  NONE
                                        HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His years of service for computation of  his  retired  pay  be  adjusted  to
include the period he spent in confinement awaiting court-martial.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was not  given  credit  for  the  time  he  spent  in  confinement.   The
convening authority gave him credit for his confinement  after  it  was  set
aside by the appellate review.

In support of his appeal, applicant provides  a  personal  statement  and  a
copy of a U.S. Army Court of Criminal  Appeals  Case,  U.S.  v  Niles.   His
complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force  on  13  August  1976.   His
last enlistment occurred on 16 June 1997, when he reenlisted  in  the  grade
of E-7, for a period of 3 years.

On 5 November 1998, contrary to his pleas, before a  general  court-martial,
the applicant was found guilty of failure to go at the  time  prescribed  to
his appointed place of duty on or about 9 December  1997;  wrongfully  using
his government American Express card for other than official travel  related
expenses on divers occasions between on or about 26  July  1997  and  on  or
about 28 November 1997; wrongfully using cocaine  between  1  December  1997
and 18 December 1997, and on or about 5 May 1998;  and  wrongfully  uttering
twelve checks for payment of monies knowing he had insufficient funds in  or
credit for payment of the checks.  He was sentenced to  reduction  in  grade
to airman basic, to forfeit all pay and allowances, and to be  confined  for
eight years.  By orders  dated  19  July  1999,  the  general  court-martial
convening authority approved only so much  of  the  sentence  providing  for
confinement for six years, total forfeiture of all pay  and  allowances  and
reduction in grade to airman basic.  A portion of the  total  forfeiture  of
pay was waived to benefit the applicant’s spouse and  dependent  child.   On
11 May 2001, the Air Force Court of Criminal Appeals set aside the  findings
of guilty in the charges of cocaine use.  The remaining  findings  of  guilt
were affirmed.  Upon reassessment, the applicant was sentenced to  reduction
in grade to technical sergeant (E-6) and forfeiture of $600.00  of  his  pay
per month for 4 months.  It was directed  that  the  applicant  be  credited
with any portion of the punishment served from 5 November  1998  to  30  May
2001.  The term of confinement was considered served.  By  orders  dated  25
November 2003, as a result of a further review by the  Air  Force  Court  of
Criminal Appeals, the findings of guilt with respect to the bad checks  were
modified, resulting  in  a  decrease  in  the  total  amount  of  the  funds
represented by the checks from $389.94 to $248.60.  The  previously-approved
sentence was affirmed.

On 30 November 2002, the applicant was relieved from  active  duty  and  was
retired in the grade of  technical  sergeant  (E-6)  effective  1 May  2002.
Applicant was credited with 23 years, 2 months and 10 days of  total  active
duty service for basic pay and  22  years,  8  months  and  19  days  active
service for retirement.  Time lost was the  period  spent  in  pretrial  and
post-trial confinement from 2 July 1998 through 30 May 2001.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/JA recommends the application be denied.  AFPC/JA states that there  is
no exception in the statute for members who are acquitted  at  trial,  never
sent to trail, or tried  but  not  sentenced  to  confinement.   “Time-lost”
remains no matter what the outcome of the trial.  AFPC/JA  states  that  the
applicant has misunderstood the court-martial rules.  In fact, as stated  by
the Air Force Court of Criminal  Appeals,  served  portions  of  confinement
that are later set aside are “credited”  toward  forfeitures.   This  is  an
attempt to “make whole” the convicted person.  Since it is not  possible  to
give someone back time spent in prison, the person is  given  back  some  of
the  money  he  forfeited  instead.   AFPC/JA  states  that  the   convening
authority’s action is only as to the sentence of the court-martial,  not  as
to administrative determination of time  credited  toward  retirement.   The
AFPC/JA evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 24 December 2003, a copy of the Air Force  evaluation  was  forwarded  to
the applicant for review and response.  As of this  date,  this  office  has
received no response.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.

2.  The application was not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of  error  or  injustice.   After  careful  consideration  of  the
applicant’s  request,  we  have  seen  no  evidence  indicating   that   the
applicant’s time toward retirement was improperly credited.  In the  absence
of such evidence, we agree with the assessment by the Air  Force  office  of
primary responsibility and adopt  their  rationale  as  the  basis  for  our
conclusion that the applicant has  not  been  the  victim  of  an  error  or
injustice.  Accordingly, we find no basis to recommend granting  the  relief
sought in this application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of probable 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 12 February 2004, under the provisions of AFI 36-2603:

      Mr. Brenda L. Romine, Panel Chair
      Ms. Barbara R. Murray, Member
      Mr. David C. Van Gasbeck, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 14 Aug 03 w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/JA, dated 18 Dec 03.
    Exhibit D.  Letter, SAF/MRBR, dated 24 Dec 03.





                                   BRENDA L. ROMINE
                                   Panel Chair