IN THE CASE OF:
BOARD DATE: 16 December 2008
DOCKET NUMBER: AR20080017503
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, that his pay grade be reinstated to specialist (SPC)/pay grade E-4.
2. The applicant states that he was absent without leave (AWOL) in New Orleans, Louisiana after Hurricane Katrina because his 10-year old son was there.
3. The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty); a DD Form 4856 (Development Counseling Form), dated
13 October 2005; a Naval Medical Center, San Diego, CA, Department of Mental Health, Physical Evaluation Board (PEB) proceedings, undated; a letter from J___ A____ F_______ to Senator R___, dated 7 March 2006, concerning the applicant; extracts of service medical records; and a DA Form 199 (PEB Proceedings), dated 19 May 2008.
CONSIDERATION OF EVIDENCE:
1. Having prior service in the Army National Guard, the applicant was ordered to active duty on 16 August 2004 in support of Operation Noble Eagle.
2. On 21 October 2005, nonjudicial punishment was imposed against the applicant for being AWOL from 20 September 2005 to 13 October 2005. His punishment consisted of a reduction to private first class (PFC)/E-3, a forfeiture of pay (suspended), extra duty, and restriction. The applicant appealed the
Article 15. The Judge Advocate stated that although the Article 15 was legally sufficient, the punishment (reduction in rank) did not fit the crime given the extreme extenuating and mitigating circumstances surrounding the case and recommended that the applicant not be reduced to E-3. On 31 October 2005, the appeal was denied. On 7 December 2005, the suspended portion of the applicants punishment (forfeiture of pay) was vacated.
3. On 28 August 2006, the applicant was released from active duty in the rank of PFC/pay grade E-3 and placed on the Temporary Disability Retired List (TDRL) the following day.
4. Item 4a (Grade, Rate or Rank) on the applicants DD Form 214 for the period ending 28 August 2006 shows the entry, PFC. Item 4b (Pay Grade) on this DD Form 214 shows the entry, E03.
5. On 13 June 2008, the applicant was removed from the TDRL.
6. There is no evidence of record which shows the applicant was promoted back to SP4/pay grade E-4 prior to his placement on the TDRL.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention was noted. However, there is no evidence of record to show he sought assistance from his chain of command or chaplain on a way to resolve his problems within established Army procedures prior to going AWOL.
2. There is no evidence of record which shows the applicant was promoted back to SPC/pay grade E-4 prior to his placement on the TDRL. Therefore, there is no basis for granting the applicants request.
BOARD VOTE:
________ ________ ________ 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 that the overall merits of this case
are insufficient as a basis for correction of the records of the individual concerned.
________XXX______________
CHAIRPERSON
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.
ABCMR Record of Proceedings (cont) AR20080017503
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ABCMR Record of Proceedings (cont) AR20080017503
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