RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2007-01044
INDEX CODE: 123.06
XXXXXXXXXXXXXX COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
Two days lost time be restored.
_________________________________________________________________
APPLICANT CONTENDS THAT:
Applicant offers no contentions.
In support of his request, applicant provides a statement from his
commander, a copy of the letter from the District Attorney of Clark County,
Nevada and a copy of the Security Forces investigation report.
The applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant is currently serving on active duty in the grade of senior
airman (E-4) at Nellis AFB, NV.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPSO recommends the application be denied. DPSO states that the
applicant was placed in custody for a battery charge. A letter from the
District Attorney’s office informed the applicant that they determined not
to file formal charges. They also stated that they retain the right to
file charges at a later time. IAW Title 10 U.S.C., Section 972, paragraph
(c)(1)(A) recoupment of time lost can not be granted since the charges were
not dismissed before or during a trial in a final disposition of the
charge; or (B) the trial results in an acquittal of the charge. The
AFPC/DPSO complete evaluation is at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was sent to the applicant on 13 July
2007 for review and comment within 30 days. As of this date, this office
has received no response.
_________________________________________________________________
ADDITIONAL AIR FORCE EVALUATION:
HQ AFPC/JA recommends denial. JA states the filing of a District
Attorney’s statement as to why any information should not be filed against
a defendant does not operate as a dismissal of the case. Dismissal can be
made only by order of a court having proper jurisdiction. Accordingly, it
is not the action or inaction of the District Attorney in Nevada that
serves to dismiss the charge. As such, advises JA, the Secretary is not
required to waive the applicant’s lost time. The AFPC/JA complete
evaluation is at Exhibit E.
_________________________________________________________________
APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:
A copy of the Air Force evaluation was sent to the applicant on 25 Jan 08
for review and comment within 30 days. As of this date, this office has
received no response.
_________________________________________________________________
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 two days
lost time while he was in confinement should be counted as duty time. We
took note of the commander’s letter stating that the assault and battery
charges against the applicant were dropped. However, we also note the
District Attorney maintains 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 opinion 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. 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 Docket Number BC-2007-01044
in Executive Session on 28 Aug 07 and 25 Feb 08, under the provisions of
AFI 36-2603:
Mr. James W. Russell III, Panel Chair
Mr. Mark J. Novitski, Member
Ms. Elwood C. Lewis, Member
The following documentary evidence pertaining to Docket Number BC-2007-
01044 was considered:
Exhibit A. DD Form 149, dated 23 Jan 07, w/atchs.
Exhibit B. Letter, AFPC/DPSO, dated 14 Jun 07.
Exhibit C. Letter, SAF/MRBR, dated 13 Jul 07.
Exhibit D. Letter, AFPC/JA, dated 15 Jan 08.
Exhibit E. Letter, SAF/MRBR, dated 25 Jan 08.
JAMES W. RUSSELL III
Panel Chair
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