RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03026
            INDEX CODE:  123.04
            COUNSEL:  NONE

            HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  The number of lost days counted against him be restored.

2.  His reenlistment eligibility (RE) code be changed.

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APPLICANT CONTENDS THAT:

In accordance with MPFM 01-21 and AFI 36-2134 "time spent in confinement  is
considered to be non-creditable service and must be  charged  as  lost  time
except  if  the  member  is  released  without  trial,  acquitted,  or   the
conviction is set aside on legal  grounds  please  contact  AFPC/DPWROP  for
procedures."  His charges were acquitted or deemed "nolle prosequi."

In support of his request, applicant provided a copy of his  nolle  prosequi
letter and AF Forms 2098, Duty Status Change.

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force  on  27
Feb 98.  He has been progressively promoted to the grade of  senior  airman,
having assumed that grade effective and with a date of rank of  27  Feb  01.
He currently has a RE code of "4F" which denotes "Five  or  more  days  lost
time during current enlistment."

Applicant was placed in pretrial confinement on 25 Aug  02,  awaiting  trial
on a charge of shooting or  discharging  a  firearm  from  a  vehicle.   The
Assistant State's Attorney decided not to prosecute  the  case  because  the
victims would not cooperate and an  eyewitness  lied  under  oath.   He  was
released from confinement on 24 Oct 02.  The period 25  Aug  02  through  22
Oct 02 is considered as 59 days of lost time.

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AIR FORCE EVALUATION:

AFPC/JA  recommends  denial.   JA  states  that  even  though  the  evidence
supports he was not prosecuted for the crimes alleged, there is no  evidence
that the state  committed  procedural  error  in  placing  him  in  pretrial
confinement.  The Air Force did not err in characterizing the time he  spent
in pretrial confinement as time lost.  An enlisted member  who  is  confined
for more than one day in connection with a trial is liable after his  return
to duty to serve the time lost by adding it to his term of enlistment.   The
time lost applies whether a trial results in a conviction, an acquittal,  or
even if a member is never actually brought to trial.  Although applying  the
plain  meaning  of  the  statute  can  potentially  create  an  inequity  or
injustice for those who are not convicted of the offense  charged,  JA  does
not believe application of the statute in this case has caused an  injustice
to the applicant.  It was a lack of cooperation from victims, rather than  a
determination that the applicant was not guilty that resulted in the  charge
not being brought to  trial.   He  has  submitted  no  information  to  deny
commission of the offense or in any other way prove that he did  not  commit
the alleged offense.  The JA evaluation is at Exhibit B.

AFPC/DPW recommends denial.  DPW states that in accordance with  the  United
States Code, DoD Financial Management  Regulation,  and  AFCSM  36-699,  any
time a member spends in AWOL status, desertion, or any  confinement  status,
whether it  is  pre  or  post-trial  or  in  connection  with  a  trial,  is
considered non-creditable service and is referred to as  "lost  time."   The
DPW evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the  applicant  on  26
Nov 03 for review and comment within 30 days.  As of this date, this  office
has received no response.

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THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice.  We find no evidence of an  error  in  this
case  and  after  thoroughly  reviewing  the  evidence  of  record  and  the
applicant's submission, we do not believe he  has  been  the  victim  of  an
injustice.  The applicant contends that  his  lost-time  should  be  removed
from his record because his  charges  were  deemed  nolle  prosequi  by  the
civilian court.  It is our opinion that although  the  applicant  was  never
brought to trial, there is no evidence that the state  committed  procedural
error in placing him in confinement.  Accordingly, it is  our  opinion  that
the applicant's records and the corresponding RE code appropriately  reflect
the 59 days he spent in civilian confinement as  lost-time.   Therefore,  we
agree with the opinions and recommendation  of  the  Air  Force  offices  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.  In  the  absence  of  evidence  to  the  contrary,  we  find  no
compelling  basis  to  recommend  granting  the  relief   sought   in   this
application.

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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.

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The following members of the Board considered AFBCMR Docket Number  BC-2003-
03026 in Executive Session on 17 Feb 04, under the  provisions  of  AFI  36-
2603:

      Ms. Marilyn Thomas, Vice Chair
      Ms. Martha J. Evans, Member
      Mr. Charles E. Bennett, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 2 Oct 03, w/atchs.
    Exhibit B.  Letter, AFPC/JA, dated 3 Nov 03.
    Exhibit C.  Letter, AFPC/DPW, dated 19 Nov 03, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 26 Nov 03.




                                   MARILYN THOMAS
                                   Vice Chair