ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 16 April 2019 DOCKET NUMBER: AR20160016582 APPLICANT REQUESTS: * credit for lost time * restoration of rank * personal appearance before the Board APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Forms 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant's complete military records are not available for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center (NPRC), St. Louis, MO, in 1973. It is believed his records were lost or destroyed in that fire. This case is being considered using the records that were available from the NPRC. 3. The applicant states: * he is requesting the 168 days of lost time be restored or accredited to his time served * this is in light of his upgraded discharge on 4 October 1979 * he is also requesting for his rank that was taken prior to his court-martial to be restored * he would like to be reimbursed for the forfeitures of pay from his court-martial * at an upgrade hearing it was determined he should not have been court- martialed for disobeying an order * the order was to get a haircut which he states he got and was proper according to military manual * the sergeant who gave the order was racist and did not approve of his straight wavy hair * he's always kept his appearance up and never disobeyed an order * he applied for dental assistance grants and was denied for not having served enough time 4. The applicant's record contains a separation wherein he was discharged for misconduct. Specifically, he used his off duty time on activities which prevented him from being alert the following duty days and he would lie around and fall asleep. The administrative board found that he demonstrates habits and traits of character manifested by misconduct. He received a separation with an under other than honorable conditions discharge. 5. Army Regulation 635-208 (Personnel Separations Discharge), in effect at the time, states upon determination that an enlisted person is to be discharged from the service with an undesirable discharge the authority accomplishing the discharge will automatically reduce such individual to grade E-1. 6. Within the applicant's separation packet was a record of previous conviction. He was convicted at court-martial for disobeying a lawful order of a noncommissioned officer and treating the same noncommissioned officer with contempt. The approved sentence was confinement at hard labor for 3 months and forfeiture of $50 per month for 3 months. The available records do not contain any other evidence of lost time. 7. The applicant's DD Form 214 indicates he had 168 days of lost time under section 6(a), ACT of 5 May 1950, appendix 2b, Manual for Courts-Martial 1951. This regulation states lost time is accrued and must be made up for confinement. 8. The applicant received notice from the Office of the Adjutant General and the Adjutant General Center on 9 November 1979 stating his request for an upgraded discharge was approved. The applicant provides a copy of his upgraded DD Form 214 showing his rank as Private, an under honorable conditions discharge, and 168 day lost. 9. Army Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined relief was not warranted. The applicant’s contentions were carefully considered. He received an UOTHC discharge that was later upgraded by the Army Discharge Review Board (ADRB) to under honorable conditions. He received a reissued DD Form 214 with the new characterization of service; however, his initial reason for discharge remained. The ADRB has the authority to provide upgrades by using liberal consideration. The Board agreed there is no evidence the initial discharge was by error nor unjust, and concluded his request for reinstatement of his rank, time lost, and forfeiture of pay has no merit. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): N/A REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Section 6(a) ACT of 5 May 1950 Appendix 2b Manual for Courts-Martial 1951, states every soldier who in an existing or subsequent enlistment who is confined for more than one day under sentence, or while awaiting trial and disposition of his case, if the trial results in conviction renders himself unable for more than one day to perform duty, shall be liable to serve, after his return to a full-duty status, for such period as shall, with the time he may have served prior to such confinement amount to the full term of that part of his enlistment period which he is required to serve with his organization before being furloughed to the Army reserve. 4. Army Regulation 635-208 (Personnel Separations Discharge), in effect at the time, states upon determination that an enlisted person is to be discharged from the service with an undesirable discharge under the provisions of these regulations, the authority accomplishing the discharge will, if the individual concerned is in a grade above E-1, automatically reduce such individual to grade E-1 as prescribed in section V, AR 624- 200. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160016582 2