RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2004-00021
INDEX NUMBER: 123.00
COUNSEL: None
HEARING DESIRED: No
_________________________________________________________________
APPLICANT REQUESTS THAT:
The 96 days of lost time he incurred due to being involuntarily
confined while awaiting trial in civilian court be removed from his
record.
_________________________________________________________________
APPLICANT CONTENDS THAT:
He was found not guilty of all charges. In support of his appeal, he
provides a supporting statement from his commander and a copy of the
court document reflecting the finding of not guilty.
The applicant’s complete submission, with attachments, is at Exhibit
A.
_________________________________________________________________
STATEMENT OF FACTS:
According to the personnel data system, the applicant entered active
duty on 24 Nov 98. He was charged 96 days of lost time due to being
incarcerated while awaiting trial on civilian charges. His adjusted
Total Active Federal Military Service Date due to lost time is 28 Feb
99.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPAOR recommends denial of the applicant’s request. The
statute governing “lost time” requires that a member be charged lost
time for all time spent in confinement. They attach a legal opinion
prepared by AFPC/JA, dated 24 Aug 00, stating this fact.
The complete evaluation, with attachment, is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on
6 Feb 04 for review and comment within 30 days. To date, a response
has not been received.
_________________________________________________________________
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 error or injustice warranting a measure of relief.
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 that he has suffered an
injustice due to the consequences of the lost time, i.e., loss of pay
and change of pay date. In an effort to afford the applicant full,
yet fair relief in this regard, 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. In regards to promotion
opportunity, based on the applicant’s date of rank as a senior
airman, his eligibility to test for promotion to staff sergeant has
not been impacted. Although the applicant is ineligible to reenlist
because of the lost time, his reenlistment eligibility code is
waiverable by his squadron commander. 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
remains 28 Feb 99 and his pay date is 24 Nov 98.
b. He was in a temporary duty status for a sufficient
period of time beginning 12 Nov 03 and was paid total per diem in an
amount equivalent to ninety-six (96) days of pay and allowances.
_________________________________________________________________
The following members of the Board considered Docket Number BC-2004-
00021 in Executive Session on 20 April 2004, under the provisions of
AFI 36-2603:
Mr. Thomas S. Markiewicz, Chair
Mr. Richard A. Peterson, Member
Mr. Grover L. Dunn, Member
All members voted to correct the records, as recommended. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 18 Dec 03, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, AFPC/DPPAOR, dated 03 Feb 04,
w/atch.
Exhibit D. Letter, SAF/MRBR, dated 6 Feb 04.
THOMAS S. MARKIEWICZ
Chair
AFBCMR BC-2004-00021
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 [APPLICANT], be corrected to show that:
a. His Total Active Federal Military Service Date
remains 28 Feb 99 and his pay date is 24 November 1998.
b. He was in a temporary duty status for a sufficient
period of time beginning 12 Nov 03 and was paid total per diem in
an amount equivalent to ninety-six (96) days of pay and allowances.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
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