RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2004-02092
INDEX NUMBER: 123.00
XXXXXXX COUNSEL: None
XXXXXXX HEARING DESIRED: No
_________________________________________________________________
APPLICANT REQUESTS THAT:
He receive all pay and allowances for the period he was assessed lost
time due to his incarceration by civilian authorities.
_________________________________________________________________
APPLICANT CONTENDS THAT:
He was wrongfully incarcerated as evidenced by all charges against him
being dropped. In support of his appeal he provides a copy of the
motion to dismiss.
The applicant’s complete submission, with attachment, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant entered active duty in the Air Force on 9 Jul 02 and is
presently serving in the grade of airman first class (A1C). According
to information in the personnel data system, he was arrested on 5 Aug
03 by civilian authorities in Arizona and extradited to Texas to face
a charge of child molestation. He was placed in confinement from 6
Aug 03 to 29 Aug 03 when he was released on bond. He was arrested
again on 30 Sep 03, this time for possession of cocaine. He remained
in confinement until 22 Dec 03. The charges against him were
eventually dismissed.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/JA does not make a specific recommendation. They cannot
determine from the available information whether the applicant
actually committed either or both of the charged offenses. However,
based on 10 U.S.C. Section 972(a)(3), the Air Force did not err in
characterizing the time the applicant spent in confinement as lost
time since the statute provides no exceptions for enlisted members
confined by military or civilian authorities for more than one day in
conjunction with a trial. Applying the plain meaning of the statute,
however, can potentially create an inequity or injustice for those not
convicted of the offense initially charged. Such may be the case with
the applicant. The charges against him were dropped due to a lack of
evidence.
The complete evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on 3
Sep 04 for review and comment within 30 days. To date, a response has
not been received.
_________________________________________________________________
ADDITIONAL AIR FORCE EVALUATION:
Pursuant to the Board’s request, DFAS-POCC/DE prepared an additional
advisory. They make no recommendation but confirm applicant would not
have been entitled to pay and allowances while in civil confinement.
The complete evaluation is at Exhibit E.
_________________________________________________________________
APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:
A copy of the additional Air Force evaluation was forwarded to the
applicant on 9 Nov 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. AFPC/JA notes the evidence
clearly supports the applicant’s contention he was not prosecuted
for the crimes alleged against him. In accordance with the DoD
Financial Management Regulation (DoDFMR), Vol 7A, Table 1-12, Rule
5, a member is entitled to otherwise proper credits of pay and
allowances when confined by civil authorities when the absence is
excused as unavoidable. According to the DoDFMR, Vol 7A, Table 1-
13, Rule 2, an absence is excused as unavoidable when it is clear
that arrest and detention were not due to member’s misconduct. In
this case, the evidence of record does not indicate what part, if
any, the applicant’s conduct contributed to his arrest. As such,
since all charges against him were subsequently dropped, we believe
he should be given the benefit of the doubt and his absence excused
as unavoidable, which would entitle him to pay and allowances during
his confinement. Therefore to avoid a possible injustice to the
applicant, we recommend his record 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 competent authority
determined his absence due to confinement by civil authorities from
6 August 2003 to 27 December 2003 was excused as unavoidable and
that he is entitled to all pay and allowances for this period.
__________________________________________________________________
The following members of the Board considered Docket Number BC-2004-
02092 in Executive Session on 15 December 2004, under the provisions
of AFI 36-2603:
Mr. Frederick R. Beaman, III, Panel Chair
Mr. Wallace F. Beard, Jr., Member
Ms. Deborah A. Erickson, Member
All members voted to correct the records, as recommended. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 25 Jun 04, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, AFPC/JA, dated 9 Aug 04.
Exhibit D. Letter, SAF/MRBR, dated 3 Sep 04.
Exhibit E. Memorandum, DFAS-POCC/DE, dated 3 Nov 04.
Exhibit F. Letter, AFBCMR, dated 9 Nov 04.
FREDERICK R. BEAMAN, III
Panel Chair
AFBCMR BC-2004-02092
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
competent authority determined his absence due to confinement by
civil authorities from 6 August 2003 to 27 December 2003 was
excused as unavoidable and that he is entitled to all pay and
allowances for this period.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
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