RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00528
            INDEX CODE:  123.04
            COUNSEL:  Mr. Michael T. Garrett

            HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Two days counted against him as lost time be restored.

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APPLICANT CONTENDS THAT:

All charges against him were dismissed in Magistrate Court.

In support of his request, applicant provided a copy of his  AF  Form  2098,
Duty Status Change; an  excerpt  from  AFI  36-2134,  State  of  New  Mexico
Magistrate Court documentation, and his Leave and Earnings  Statement.   His
complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air  Force  on  4
Dec 98.  He has been progressively promoted to the grade of staff  sergeant,
having assumed that grade effective and with a date of rank  of  1  Mar  03.
He was involuntarily placed in civilian confinement from 10 Jan  04  through
11 Jan 04 for aggravated assault.  Because the victim could not be  located,
his aggravated assault charge was dismissed without prejudice and  the  case
was closed.

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AIR FORCE EVALUATION:

AFPC/DPPAOR recommends denial.  DPPAOR states the governing statute, 10  USC
972, requires that a member be charged lost  time  for  all  time  spent  in
confinement.  The DPPAOR evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 26  Mar
04 for review and comment within 30 days.  As of this date, this office  has
received no response.

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ADDITIONAL AIR FORCE EVALUATION:

AFPC/JA recommends denial.  JA states the basis for his  claim  is  that  he
was not prosecuted for the crime for which he was confined.  The  Air  Force
did not err in characterizing the time  he  spent  in  confinement  as  lost
time.  Under the current statute an enlisted member of an  armed  force  who
is confined by military or civilian authorities 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 the member's  term  of  enlistment.   The  statute
provides no exceptions.  Thus time lost applies whether a trial  results  in
a conviction, an acquittal, or even if the member is never actually  brought
to trial.  Although application of 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.   His  girlfriend
reported to the police he threatened her with a gun when she  told  him  she
was pregnant.  She then left her home and cannot be  located.   It  was  the
disappearance of the victim, rather than a determination he was  not  guilty
that resulted in the charge not being brought to trial.   If  and  when  the
police are able to locate the applicant's  girlfriend,  the  case  could  be
prosecuted.  He has submitted no  information  to  deny  commission  of  the
offense or in any other way prove he did not commit the alleged offense.

The JA evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 30  Apr
04 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 dismissed by civilian  authorities.
 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 appropriately reflect the two 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-2004-
00528 in Executive Session on 30 Jun 04, under the  provisions  of  AFI  36-
2603:

      Ms. Brenda L. Romine, Panel Chair
      Mr. Vance E. Lineberger, Member
      Ms. Jean A. Reynolds, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 11 Feb 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPAOR, dated 19 Feb 04, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 26 Mar 04.
    Exhibit E.  Letter, AFPC/JA, dated 22 Apr 04.
    Exhibit F.  Letter, SAF/MRBC, dated 30 Apr 04.




                                   BRENDA L. ROMINE
                                   Panel Chair