APPLICANT REQUESTS: Reinstatement to active duty with payment of all back pay and allowances since his discharge.
APPLICANT STATES: That he was unjustly discharged from the service because he was never informed of the discharge or afforded the opportunity to review any of the documentation that served as the basis for his administrative discharge. He further states that nonjudicial punishment (NJP) was unjustly imposed against him and that he was railroaded out of the Army without being afforded his due process rights.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant enlisted on 14 November 1989 for a period of 4 years for training as a medical specialist. After serving 3 years, 8 months, and 29 days of total active service, he reenlisted on 13 August 1992 for a period of 2 years in the pay grade of E-4.
On 24 January 1994 NJP was imposed against the applicant for striking a female soldier in the face with his fist. His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay, and extra duty and restriction. He appealed the punishment; however, his appeal was denied on 24 February 1994.
On 31 March 1994, the applicants commander initiated action to involuntarily separate the applicant from the service no later than 30 April 1994, due to his exceeding the retention control point (maximum number of years of service authorized) for his pay grade. The applicant signed the request but failed to indicate the date of his signature.
On 30 April 1994 the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 16-8, due to reduction in force. He had served 4 years, 5 months, and 17 days of total active service.
Army Regulation 601-280 prescribes the criteria for the Total Army Retention Program. It states, in pertinent part, that the retention control point for soldiers serving in the pay grades of E-3 and below is a maximum of 3 years. Soldiers serving in the pay grades of E-4 and below who are beyond their retention control point are ineligible to reenlist or extend their enlistment and must separate not later than 29 days after reaching their retention control point regardless of current enlistment agreement.
Army Regulation 635-200 serves as the authority for the separation of enlisted personnel from active duty. It states, in pertinent part, that commanders who have a judge advocate or legal advisor available are authorized to order separation from active duty under chapters 8, 11, and 16; and under paragraph 5-15, and chapters 9 and 13 in those cases in which the notification procedures are used. Personnel separated under the provisions of paragraph 16-8 will be notified of the separation by appropriate commanders and provided the basis for the separation.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. The applicants administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.
2. The applicants contention that he was never informed of the commanders intentions to administratively discharge him from the service or provided the reasons therefor, is without merit. The applicant signed the initial action by the commander to separate him from the service due to his exceeding the retention control point for his grade. This in itself was sufficient notification as required by the applicable regulations.
3. The applicants contention that NJP was unjustly imposed against him, is also without merit. Although the applicant has submitted no evidence to support his contention, the
Board notes that the applicant had the opportunity to request trial by court-martial, at which time he could have asserted his innocence.
4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
5. In view of the foregoing, there is no basis for granting the applicants request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
David R. Kinneer
Executive Secretary
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