RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00828
            INDEX CODE:  100.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to retrieve 57 days of lost time he spent  in
confinement awaiting trial in civilian court.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The 57 days should not be charged as lost  time  because  he  was  not
prosecuted for the crime for which he was accused.

Applicant's complete submission,  with  attachments,  is  attached  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant is currently serving on active duty in the grade  of  senior
airman.

The  applicant,  on  25  August  2002,  was  involved  in   a   verbal
disagreement with two civilians and  discharged  a  firearm.   He  was
arrested by the Fort Walton, FL, Police Department  and  charged  with
Shooting or Discharging a Firearm from a  Vehicle.   He  was  confined
from 25 August through 21 October 2002.

On 26 November 2002, the charges against the applicant were  dismissed
due to the victims failing to cooperate  with  the  investigation  and
prosecution and the eyewitness lying under oath.

On 3 March 2003, the applicant received a Letter  of  Reprimand  (LOR)
for his misconduct with civil authorities.  The LOR was  filed  in  an
Unfavorable Information File (UIF) and he was placed  on  the  control
roster for six months.

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AIR FORCE EVALUATION:

AFPC/DPPAOR states they are not the office of  primary  responsibility
for this issue and refers the case to AFPC/DPW and JA (Exhibit C).

HQ AFPC/JA  states  the  evidence  clearly  supports  the  applicant’s
contention that he was not prosecuted for the crime  he  was  charged.
However, JA believes the Air Force did not err in  characterizing  the
time the applicant spent in confinement as time lost.  Title 10 United
States Code (USC) Section 972(a)(3), states “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, whether  before,  during
or after trial, is liable after his return to full duty, to serve  the
time lost in  confinement  by  adding  it  to  the  member’s  term  of
enlistment.”  According to the  current  statute,  servicemembers  are
charged time lost for any time spent  in  confinement  “in  connection
with a trial.”  The statute provides no exceptions.   Therefore,  time
lost applies whether a trial results in a conviction, an acquittal, or
even if the servicemember is never actually brought to trial.

AFPC/JA further states applying the plain meaning of the  statute  may
potentially create an inequity or injustice for the servicemembers who
were not convicted of the offense for which  they  were  charged.   JA
does not believe the application of this statute  in  the  applicant’s
case has caused him an injustice.  Furthermore,  the  court  documents
show the reason for dismissal was due to a lack  of  cooperation  from
the victims and not a determination of the applicant’s innocence.  The
applicant has not alleged any error in his confinement.  JA recommends
the requested relief be denied.

A complete copy of the evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant  reviewed  the  Air  Force  evaluation  and  states  his
interpretation of his situation was that if his case was dismissed and
he was never charged he should receive his lost time  back.   He  felt
his life was in danger and thought the only
way to handle the situation was to defend himself.  He  also  believes
he should not have been arrested or  confined.   He  further  believes
since the witnesses lied under oath his lost time should  be  restored
(Exhibit E).

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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 an  error  or  injustice.   We  took  notice  of  the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinion and recommendation of  the  AFPC/JA
and adopt their rationale as the basis for our decision the  applicant
has failed to sustain his burden that he has suffered either an  error
or an  injustice.   Under  the  current  statute,  servicemembers  are
charged time lost for any time spent in confinement in connection with
a trial.  Furthermore, court  documents  show  the  case  against  the
applicant  was  dismissed  due  to  lack  of  cooperation   from   the
individuals  involved  and  not  a  determination  of  his  innocence.
Therefore, in the absence of evidence to  the  contrary,  we  find  no
compelling basis to recommend  granting  the  relief  sought  in  this
application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of material  error  or  injustice  and  that
there was  no  evidence  that  he  applied  for  and  was  denied  the
opportunity to take the leave he is requesting to  be  restored;  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.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 4 August 2004, under the provisions  of  AFI  36-
2603:

                                  Mr. Joseph A. Roj, Panel Chair
                             Mr. Michael J. Novel, Member
                       Mr. Clarence D. Long III, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2004-00828 was considered:

   Exhibit A.  DD Form 149, dated 3 Mar 04, w/atchs.
   Exhibit B.  Applicant’s Military Personnel Records.
   Exhibit C.  Letter, AFPC/DPPAOR, undated.
   Exhibit D.  Letter, AFPC/JA, 13 May 04.
   Exhibit E.  Letter, SAF/MRBR dated 21 May 04.
   Exhibit F.  Letter, Applicant’s Response, dated 9 Jun 04.




                       JOSEPH A. ROJ
                       Panel Chair