RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2003-03769
                                        INDEX CODE:  110.02
    XXXXXXXXXXXXXXXX              COUNSEL:  NONE

    XXXXXXXXXX                          HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His lost time of 88  days,  due  to  pretrial  confinement,  be  changed  to
reflect normal duty status.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was found not guilty for the crime  he  was  accused  of;  therefore,  he
should be credited with the 88 days he spent in pretrial confinement.

In support of his appeal, the applicant provides a copy  of  his  record  of
trial and his duty status change document.  His  complete  submission,  with
attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 1 November 2000, the applicant enlisted in the Regular Air Force  at  the
age of 18 for a period of four years in the  rank  of  airman  basic  (E-1).
The applicant was progressively promoted to the rank of senior airman  (E-4)
effective and with a date of rank of 27 January 2004.

On 11 November 2002,  the  applicant  was  placed  in  pretrial  confinement
awaiting trial on a charge  of  assault  with  a  dangerous  weapon.   On  7
February 2003, a special court-martial found the  applicant  not  guilty  of
the charge and he was released from confinement.  The applicant was held  in
pretrial confinement from 11 November 2002 to 6  February  2003,  causing  a
total lost time of 88 days.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/JA recommends the AFBCMR determine if  characterizing  the  applicant’s
time in pretrial confinement, as time lost would be  an  injustice  to  him.
If so, JA recommends the Board approve  the  applicant’s  request.   AFPC/JA
states that even  though  the  evidence  clearly  supports  the  applicant’s
contention that he was acquitted of the crime alleged, there is no  evidence
that the Air Force committed a procedural error in placing the applicant  in
pretrial confinement.  The Air Force also did not err in characterizing  the
time the applicant spent in pretrial confinement as lost  time.   Under  the
current statute, Title 10 United States Code,  Section  972  (10  USC  972),
members are charged  lost  time  for  any  time  spent  in  confinement  “in
connection with a trial.”  Thus, time lost applies whether a  trial  results
in a conviction, an acquittal,  or  even  if  a  member  is  never  actually
brought to trial.  It is JA’s opinion that application  of  the  statute  in
this case, although technically correct, may have  caused  an  injustice  to
the applicant.  The AFPC/JA evaluation is at Exhibit C.

AFPC/DPPAOR recommends the applicant’s request  be  denied.   DPPAOR  states
that the governing statue, 10 USC 972, requires that  a  member  be  charged
lost time for all time spent in confinement.  The DPPAOR  evaluation  is  at
Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 16 April 2004 and 12 May 2004, copies of the Air Force  evaluations  were
forwarded to the applicant for review and response within 30  days.   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 timely filed.

3.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of an injustice.  Because of the plain  language  of  the  statute
governing lost time, we are precluded, as a matter  of  law,  from  removing
the lost time from  the  applicant’s  records.   However,  we  are  able  to
correct his records in regards to any impact caused by the lost time,  which
is a matter of policy.  Since the applicant was  found  not  guilty  of  the
charges that  led  to  his  confinement,  we  believe  he  has  suffered  an
injustice due to the consequences of the lost time, i.e., loss of pay;  loss
of Time-In-Grade (TIG) for  promotion  to  airman  first  class  and  senior
airman; change of pay date; and change  of  Total  Active  Federal  Military
Service Date (TAFMSD).  In an effort to afford the  applicant  full  relief,
we contacted the Defense Finance and Accounting Service (DFAS-DE)  and  they
determined that in order to provide  the  applicant  reimbursement  for  the
lost pay during the contested period, we  would  need  to  place  him  in  a
temporary duty (TDY) status a sufficient number of  days  and  pay  him  per
diem in an amount equivalent to the  lost  pay.   AFPC/DPPPW  confirmed  the
applicant’s lost time caused an adjustment in his promotion to airman  first
class (A1C) (E-3) from 1 March 2002  to  28  May  2002,  which  consequently
effected his TIG for promotion to senior  airman  (SrA)(E-4),  resulting  in
his current DOR of 27 January 2004.  Therefore, we feel his  records  should
be corrected to adjust his DORs to the original dates  without  the  penalty
of the 88 days lost time.  According to AFPC/DPPAC, the  applicant’s  TAFMSD
and paydate should have been adjusted to reflect  his  lost  time;  however,
upon checking, his dates had not been adjusted.   We  feel  the  applicant’s
TAFMSD and paydate should remain as 1 November 2000 and not be  adjusted  to
reflect the  lost  time.   Therefore,  we  recommend  that  the  applicant’s
records be corrected as indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be corrected to show that:

      a.  His Total Active  Federal  Military  Service  Date  and  Pay  Date
remain 1 November 2000.

      b.  His Date of Rank (DOR) to the  grade  of  Airman  First  Class  be
changed to 1 March 2002 and his  DOR  to  the  grade  of  Senior  Airman  be
changed to 1 November 2003.

      c.  He was in a temporary duty status for a sufficient period of  time
beginning 11 November 2002  and  was  paid  total  per  diem  in  an  amount
equivalent to eighty-eight (88) days of pay and allowances.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 1 July 2004, under the provisions of AFI 36-2603:

      Mr. John L. Robuck, Panel Chair
      Mr. Grover L. Dunn, Member
      Ms. Carolyn B. Willis, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered in connection with AFBCMR Docket  Number
BC-2003-03769:

      Exhibit A.  DD Form 149, dated 27 Oct 03, with attachments.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/JA, dated 14 Apr 04.
      Exhibit D.  Letter, AFPC/DPPAOR, dated 27 Feb 04.
      Exhibit E.  Letter, SAF/MRBR, dated 16 Apr 04.




                                                   JOHN L. ROBUCK
                                                   Panel Chair


AFBCMR BC-2003-03769




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 XXXXXXXXXXXXXXXXXXXXXXX, be corrected to show that:

            a.  His Total Active Federal Military Service Date and Pay Date
is 1 November 2000.

            b.  His Date of Rank (DOR) to the grade of Airman First Class
be changed to 1 March 2002 and his DOR to the grade of Senior Airman be
changed to 1 November 2003.

            c.  He was in a temporary duty status for a sufficient period
of time beginning 11 November 2002 and was paid total per diem in an amount
equivalent to eighty-eight (88) days of pay and allowances.





  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency