RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-05227
		
		COUNSEL:  NONE

		HEARING DESIRED:  NO




APPLICANT REQUESTS THAT:

1.  His military personnel records be corrected to reflect that he has no lost time (administratively resolved – DPTOS advisory).

2.  His eligibility for re-enlistment be reinstated.



APPLICANT CONTENDS THAT:

1.  He was acquitted of civilian charges, but his commander refused to remove the lost time from his records.  In accordance with AFI 36-2134, Air Force Duty Status Program, time spent in confinement is considered to be non-creditable service and must be charged as lost time, unless the member is released without trial, acquitted, or the conviction is set aside on legal grounds.  However, not only did his commander refuse to remove the lost time, he twice attempted to administratively discharge the applicant.  Fortunately, both unjust actions were overturned.

2.  As his lost time should be removed from his records, his re-enlistment eligibility should be restored.

The applicant’s complete submission, with attachments, is at Exhibit A.



STATEMENT OF FACTS:

The applicant served in the Regular Air Force in the grade of staff sergeant (E-5) during the matter under review.

On 19 Aug 14, AFPC/DPTOS notified the applicant that his lost time was removed from his records administratively.

The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility (OPR) at Exhibits C, D, and E. 



AIR FORCE EVALUATION:

AFPC/JA recommends the applicant’s request be approved and that his re-entry (RE) code be updated once the lost time is removed from his records.  He was arrested on 7 May 10 for manslaughter in the state of Louisiana and served time in jail until 18 May 10, when he was released on bond.  On 1 Aug 11, he was again confined because he was suspected of possession of a firearm in violation of his bond terms.  On 10 Aug 12, he was released on bond.  On 28 Nov 12, an administrative discharge board was convened to address the behavior that was the subject of the civilian arrest; the Board voted to retain the member as it found the applicant did not violate the conditions of his bond, he did not possess a firearm, and he did not point an unloaded weapon at a fellow Airman.  On 6 Mar 13, the applicant’s commander placed the applicant on a date of separation (DOS) rollback roster because of his RE code of 4F (five or more days of lost time).  As a result, the commander had the authority to deny re-enlistment to the applicant and initiated a denial of his re-enlistment.  At the same time, the applicant requested that his lost time be re-calculated; however, as the commander non-concurred with his request, the lost time remained in his records.  However, on 1 May 13, the applicant’s wing commander granted the applicant’s appeal of the denial of reenlistment on 1 May 13, which allowed the applicant to avoid separation a second time.  On 27 Apr 13, the applicant was found not guilty of all charges by the State of Louisiana and released from bond obligations.

As the applicant argues, AFI 36-2134 indicates that time spent in confinement is considered to be non-creditable service and must be charged as lost time, except when the member is released without trial, acquitted, or the conviction is set aside on legal grounds.  While AFPC/DPTOS indicates the commander is the final authority on requests to re-calculate lost time, 10 USC 927 is the statutory authority governing lost time calculations and directs that it shall be waived when a member has served a period of confinement in connection with a trial (such as in the applicant’s case) when the charge(s) is(are) dismissed before or during trial in a final disposition of the charge, or the trial results in an acquittal.  While the applicant’s commander was led to believe the matter was left solely to his discretion, as indicated in the governing AFI, and the commander correctly followed said procedures, 10 USC 927(c) clearly provides that the lost time should have been waived upon request, after trial.  Based on the record, it appears the applicant’s request to waive his lost time prior to the trial was denied because of the uncertain outcome of the pending trail.  While it cannot be ascertained whether or not the applicant renewed the request after the trial was over, it is clear that his lost time should have been waived, regardless of whether or not the applicant renewed his request.

A complete copy of the AFPC/JA evaluation is at Exhibit C.

AFPC/DPSOA indicates that because the applicant has been selected for involuntary separation by the Quality Force Review Board (QFRB), his correct RE code is 3K (Reserved for use by HQ AFPC or the AFBCMR when no other RE code applies or is appropriate), as stipulated based on the QFRB guidance.  However, if he is released from the QFRB and his separation cancelled, his correct RE code would be 3B (Fist-term, second-term or career Airman who was ineligible to reenlist, the ineligibility condition no longer exists, and the Airman requires selective reenlistment program (SRP) consideration or reconsideration).  The applicant’s commander would then be required to consider the applicant for re-enlistment under the SRP, which would give the applicant an RE code of 1J (Eligible to reenlist, but elects separation) or 2X (First-Term, second-term, or career airman considered by not selected for reenlistment under the SRP).  If the applicant is released from the QFRB separation, his commander will be required to select or non-select the applicant for reenlistment under the SRP.

A complete copy of the AFPC/DPSOA evaluation is at Exhibit D.

AFPC/DPSOR recommends the applicant’s records be corrected to reflect he was not considered by the QFRB, thus, allowing him to remain on active duty.  The applicant was considered by the QFRB as a result of the lost time and was ultimately not selected for retention, and has been projected for mandatory separation, effective 17 Sep 14.  As the guidance governing the QFRB process indicates that records reviewed by the QFRB are considered accurate at the time of review, there is no process for airmen to appeal the QFRB’s decision, other than to pursue relief through the AFBCMR.  The QFRB conducted a comprehensive review of the applicant’s record in accordance with the proper procedures and determined the applicant could not be retained.  However, if the lost time had not been on the applicant’s record, he would not have met the QFRB.  While the QFRB procedures were conducted in accordance with the prescribing instructions, it is in the interest of justice to grant the applicant’s request for removal from the QFRB.

A complete copy of the AFPC/DPSOR evaluation is at Exhibit E.



APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 2 Sep 14 (Exhibit F).  In response, he indicates that he concurs with the advisory opinions rendered and asks that his case be processed quickly due to his pending separation on 17 Sep 14 (Exhibit G).



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 an error or injustice.  The applicant argues that because he was acquitted of charges preferred by a civilian authority, his lost time resulting from his confinement should be removed from his records and his eligibility to re-enlist should be restored.  After a thorough review of the evidence of record and the applicant’s complete submission, we agree.  In this respect, we note the comments by AFPC/DPSOR indicating that were it not for the fact the applicant’s records indicated that he had non-creditable service (lost time), he would not have been eligible for consideration by the Enlisted Quality Force Review Board (QFRB).  Therefore, in view of the fact the applicant’s records have since been administratively corrected to reflect that his lost time was waived, we agree with the opinion and recommendation of AFPC/DPSOR indicating the applicant’s records should be corrected to reflect that he was not considered by the QFRB.  While we note the comments by AFPC/DPSOA indicating that such a correction would result in the applicant’s re-entry (RE) code being updated to reflect 3B, thereby requiring the applicant to once-again be subjected to selective re-enlistment program (SRP) consideration, we believe it appropriate to further correct the applicant’s records to reflect an RE code which would allow his immediate re-enlistment (1J).  In this respect, we note the applicant was already subjected to SRP consideration in 2013, whereby his commander’s decision to deny him re-enlistment based on the now removed lost time was overturned by the wing commander and his re-enlistment eligibility was restored.  Therefore, we believe it appropriate to recommend the applicant’s records be corrected as indicated below.



THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that:

	a.  He was ineligible for consideration by the Fiscal Year 2014 Enlisted Qualify Force Review Board (QFRB).

	b.  His Re-entry (RE) code is “1J,” rather than “3K.”



The following members of the Board considered AFBCMR Docket Number BC-2013-05227 in Executive Session on 5 Sep 14 and 8 Sep 14, under the provisions of AFI 36-2603:

All members voted to correct the records as recommended.  The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 11 Oct 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/JA, dated 10 Jun 13.
	Exhibit D.  Letter, AFPC/DPSOA, dated 25 Aug 14, w/atch.
	Exhibit E.  Letter, AFPC/DPSOR, dated 29 Aug 14.
	Exhibit F.  Letter, SAF/MRBR, dated 2 Sep 14.




		

						

2