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AF | BCMR | CY2008 | BC-2007-01044
Original file (BC-2007-01044.DOC) Auto-classification: Denied


                            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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