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AF | BCMR | CY2004 | BC-2004-00142
Original file (BC-2004-00142.doc) Auto-classification: Approved

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00142
            INDEX NUMBER:  123.00
      XXXXXXX    COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His service dates be adjusted to remove the lost time  he  was  given
for the period 19 Oct 02 to 11 Jun 03.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was acquitted of all charges against him during a  General  Court-
Martial.

In support of his appeal, applicant provides copies of AF  Form  2098
showing the lost time he was assessed and a copy of the General Court-
Martial order showing the finding of not guilty.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is presently serving on active duty  in  the  grade  of
technical sergeant (E-6).  He was tried by General Court-Martial  for
the alleged offense of attempted robbery with a  deadly  weapon.   He
was acquitted of the charges.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPAOR recommends that the applicant’s appeal  be  denied.   The
statute covering lost time requires that a  member  be  charged  lost
time for all time spent in confinement.  In  support  of  this  view,
AFPC/DPPAOR has attached a legal opinion, dated 24 Aug  00,  prepared
by the AFPC Chief of Military Personnel Law.

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
5 Mar 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.
Based on the applicant being found not guilty of alleged offenses  in
a general court-martial, we believe that the 232 days of lost time he
was assessed due to his confinement unfairly affected his  Air  Force
career and thereby constitutes an injustice.  However,  as  noted  in
the advisory opinion provided by AFPC/DPPAOR,  we  are  precluded  by
statute from providing the actual relief requested, removing the lost
time from the  applicant’s  record.   We  are  able  to  provide  the
applicant a measure of relief by correcting his record  to  eliminate
any effect of the lost time that is a  matter  of  policy.   In  that
regard, we note that the applicant’s pay date has been adjusted, that
he did not receive pay and allowances during the period of lost time,
and that he was rendered ineligible for promotion during cycle  03E7.
We believe that it would be appropriate to correct these items in the
applicant’s record.  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 11 May 83 and his pay date is 16 Feb 82.

            b.  He was in a temporary duty status  for  a  sufficient
period of time beginning 23 Oct 02 and was paid total per diem in  an
amount equivalent to 232 days of pay and allowances.

It  is  further  recommended  that  he   be   provided   supplemental
consideration for promotion to the grade  of  master  sergeant  (E-7)
beginning with cycle 03E7.

If AFPC  discovers  any  adverse  factors  during  or  subsequent  to
supplemental consideration that are separate and apart, and unrelated
to the issues involved in this application that would  have  rendered
the applicant ineligible for the promotion, such information will  be
documented and presented to the Board for a  final  determination  on
the individual’s qualifications for the promotion.

_________________________________________________________________

The following members of the Board considered Docket Number  BC-2004-
00142 in Executive Session on 1 June 2004, under  the  provisions  of
AFI 36-2603:

      Mr. Richard A. Peterson, Panel Chair
      Ms Jean A. Reynolds, Member
      Mr. James A. Wolff, Member

All members voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 2 Jan 04, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPPAOR, dated 25 Feb 04.
     Exhibit D.  Letter, SAF/MRBR, dated 5 Mar 04.




                                   RICHARD A. PETERSON
                                   Panel Chair



AFBCMR BC-2004-00142


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 XXXXXXX, XXXXXXX, be corrected to show that:

             a.  His  Total  Active  Federal  Military  Service  Date
remains 11 May 83 and his pay date is 16 Feb 82.

            b.  He was in a temporary  duty  status  for  a  sufficient
period of time beginning      23 Oct 02 and was paid total per diem  in
an amount equivalent to 232 days of pay and allowances.

      It is further directed that he be provided supplemental
consideration for promotion to the grade of master sergeant (E-7)
beginning with cycle 03E7.

      If AFPC discovers any adverse factors during or subsequent to
supplemental consideration that are separate and apart, and
unrelated to the issues involved in this application that would
have rendered the applicant ineligible for the promotion, such
information will be documented and presented to the Board for a
final determination on the individual’s qualifications for the
promotion.




            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency


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