RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC 2004-03212
                                       INDEX CODE:  121.00
      XXXXXXXXXXXXXXXXX                      COUNSEL: NO

      267-89-0801                            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His eleven days’ lost time be removed from  his  records  and  the  days  be
restored as normal duty status.
_________________________________________________________________

APPLICANT CONTENDS THAT:

The period he spent in civilian confinement (26 January  2003  -  6 February
2003) should not be charged as lost time because no charges were ever  filed
against him after he was released.

In support of his application, the applicant  provides  copies  of  military
personnel documentation changing his service  dates  and  duty  information,
his commander’s approval for a  reenlistment  waiver,  commander’s  approval
for a detail assignment,  enlisted  performance  report  for  the  period  3
January 2003 through 15 December  2003,  and  an  affidavit  signed  by  the
Assistant State Attorney that the State of Florida does not intend  to  file
criminal charges against  the  applicant  at  this  time.   The  applicant’s
complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

According to the Military Personnel Data System (MilPDS), the  applicant  is
currently serving on active duty in the rank of staff sergeant (E-5) with  a
Total Active Federal Military Service Date of 14 April 1996  (adjusted  from
3 April 1996) and a Date of Separation of  31  January  2009.   His  records
reflect 11 days’ lost time starting on 26  January  2003.   MilPDS  reflects
the applicant has received five performance ratings  with  the  last  rating
period closing 15 December 2004.  All performance ratings  were  an  overall
“5.”

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the letters  prepared  by
the appropriate offices of the Air Force at Exhibits B and C.

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AIR FORCE EVALUATION:

AFPC/JA recommends denial.  JA states  the  applicant  was  arrested  on  26
January 2003 for battery, domestic violence and aggravated assault and  held
without bond in the Brevard County, Florida, jail.  On 6 February 2003,  the
applicant  was  released  from  confinement.   The  Brevard  County  State’s
Attorney Office filed notice with the local  judicial  circuit  on  7  April
2003 that the State did not intend to prosecute the applicant at that  time.
 Because the State’s Attorneys maintain the prerogative to  resurrect  these
charges against the applicant, this case lacks the finality intended in  the
2005 amendment to the current statute  governing  lost  time.   It  is  JA’s
opinion that the Air Force did  not  err  in  characterizing  the  time  the
applicant spent in civilian confinement as lost time.   The  JA  evaluation,
with attachment, is at Exhibit B.

AFPC/DPPAOR recommends denial.   DPPAOR  states  that  since  the  applicant
spent 11 days’ in civilian confinement, he was not present for  duty.   That
time is lost, whether or not he was ultimately charged  with  anything.   It
is DPPAOR’s  opinion  that  the  applicant  did  not  provide  any  official
documentation showing that his lost time should not be counted.  The  DPPAOR
evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The State of Florida and the Air Force exonerated  him  of  any  wrongdoing.
He has presented documentation that no charges were ever filed  against  him
and documentation that in the subsequent reporting  period  he  was  awarded
the highest possible overall  rating  on  his  enlisted  performance  report
(EPR).  In addition to his EPR rating, the Air Force saw fit to  retain  him
in a competitive Special  Duty  assignment  and  recommend  him  for  career
progression within that Special Duty.  At the conclusion of his  assignment,
he was awarded the Air Force Commendation  Medal.   He  is  distraught  that
while his headquarters, group, squadron, and commander  saw  the  facts  and
stood by him, he is still being charged with 11 days lost  time.   The  only
person who ever accused him of wrongdoing was a police officer  not  present
during the alleged incident.  He was  unjustly  confined.   The  applicant’s
rebuttal, with attachment, is at 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 error or injustice.  The applicant contends that his  11  days’
lost time while he was in confinement should be counted as  duty  time.   We
note that the applicant was not charged with battery, domestic violence  and
aggravated assault because his spouse recanted her accusations and  did  not
press charges.  However, we also note the State’s Attorneys  maintained  the
prerogative to resurrect the charges against the applicant.   The  applicant
was not present for duty during his confinement and we feel  the  Air  Force
appropriately  exercised  the  statue  governing   Lost   Time   under   the
circumstances of this case.  Therefore, we concur with the opinions  of  the
Air Force Offices of Primary Responsibility that the  applicant  was  not  a
victim of an error or injustice.  Accordingly, the  applicant’s  request  is
not favorably considered.

_________________________________________________________________

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.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 5 May 2005, under the provisions of AFI 36-2603:

                 Mr. Richard A. Peterson, Panel Chair
                 Mr. James W. Russell III, Member
                 Ms. Sue A. Lumpkins, Member

The following documentary evidence for AFBCMR Docket  Number  BC  2004-03212
was considered:

    Exhibit A.  DD Form 149, dated 12 Oct 04.
    Exhibit B.  Letter, AFPC/JA, dated 12 Jan 05, w/atch.
    Exhibit C.  Letter, AFPC/DPPAOR, dated 4 Nov 04.
    Exhibit D.  Letter, SAF/MRBR, dated 14 Jan 05.
    Exhibit E.  Applicant’s Rebuttal, undated, w/atchs.




                                   RICHARD A. PETERSON
                                   Panel Chair