IN THE CASE OF:
BOARD DATE: 14 June 2009
DOCKET NUMBER: AR20090004404
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 rank be restored to specialist/pay grade E-4.
2. The applicant states, in effect, that he was stationed in Bamberg, Germany when he disobeyed a direct order and was demoted to pay grade E-3. After he was demoted, he was promised his rank would be restored to specialist/pay grade E-4 after 30 days. He also states that the colonel who punished him retired before his 30 days were up and his rank was never restored.
3. The applicant provides a one-page hand-written letter explaining his application.
CONSIDERATION OF EVIDENCE:
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 applicants 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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 14 February 1974 for a period of 2 years and assignment to Europe. He successfully completed his training as a light weapons infantryman and was transferred to Warner Barracks, Bamberg, Germany on 10 July 1974, for assignment to the Combat Support Company, 1st Battalion, 52nd Infantry Regiment. He was advanced to the pay grade of E-4 on 1 March 1975.
3. On 17 July 1975, nonjudicial punishment (NJP) was imposed against the applicant by the battalion commander for disobeying a lawful command from a superior commissioned officer. His punishment consisted of a reduction to pay grade E-3 and 30 days of extra duty. The applicant did not appeal his punishment.
4. On 13 February 1976, the applicant was honorably released from active duty (REFRAD) in pay grade E-3 due to the expiration of his term of service. He had served 2 years of total active service.
5. A review of the applicant's official records fail to show any indication that the applicant was ever promised that he would be advanced back to pay grade E-4 within 30 days or that he ever held that pay grade again.
DISCUSSION AND CONCLUSIONS:
1. 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 this requirement.
2. The applicant's contention that he was promised that he would be advanced back to the pay grade of E-4 within 30 days of his demotion to the pay grade of E-3 has been noted and found to lack merit. There is no indication that any such promises were made to the applicant at any time during or after the imposition of NJP.
3. It is also noted that had the commander wanted him to again serve in the pay grade of E-4, he could have suspended the reduction in grade; however, he did not do so. Additionally, there is no evidence to show that he was ever recommended for advancement to the pay grade of E-4 before his REFRAD.
4. Therefore, in the absence of evidence to support his claim, it must be presumed that what the Army did at the time (33 years ago) was correct.
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.
_________X___________
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) AR20090004404
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ABCMR Record of Proceedings (cont) AR20090004404
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