IN THE CASE OF:
BOARD DATE: 20 May 2010
DOCKET NUMBER: AR20090019739
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 reconsideration of his previous request to have his rank reinstated to the pay grade of E-4.
2. The applicant states, in effect, that all disciplinary action was taken against him after he had completed his 30 months of obligated service and therefore should be voided. As a result, his records should be corrected to change his discharge to his rank and reflect a disciplinary-free record. He continues by stating that it is an established and undisputed fact that the Army clearly represented that he was obligating himself to a 30-montn period of enlistment and just because the Army decided to eliminate the early-out program should in no way have altered the Armys obligation to honor its commitment to him. He further states that had the Army honored its obligation to him he would have never been put in the position of having to deal with the issue.
3. The applicant provides no additional documents with his application.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090007143, on 24 September 2009.
2. The applicant enlisted in the Regular Army on 6 November 1972 for a period of 3 years and training as an audio specialist. As part of his enlistment contract, the applicant completed a DA Form 3286-4 (Statement for Enlistment) regarding the terms of his enlistment. He indicated that no promises had been made that were not reflected on that form and signed the form on the same day as his enlistment.
3. He completed his training and was transferred to Fort Belvoir for his first and only duty assignment.
4. On 5 December 1974, the applicant submitted a request for early discharge from active duty in which he requested that he be granted a 6-month early out to attend college. He stated at the time that when he enlisted, his specialty required a 3-year commitment; however, the same option now only requires a 2-year commitment. He continued by stating that although the early-out program was now defunct, and that it was never a guarantee put in his contract, he had counted on getting the 6-month drop. His request was disapproved at the Department of the Army on 28 March 1975 indicating that the applicant case did not satisfy the requirements for an early release.
5. On 21 May 1975, nonjudicial punishment (NJP) was imposed against him for being absent from his place of duty and disobeying a lawful order from his commander. He did not demand trial by court-martial or submit matters in defense and/or extenuation. His punishment consisted of a reduction to the pay grade of E-3 and a forfeiture of pay. He did not appeal the punishment.
6. On 16 June 1975, he was honorably discharged under the provisions of Army Regulation 635-200, chapter 13, for unsuitability in the pay grade of E-3. He had served 2 years, 7 months and 11 days of total active service.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that his rank should be restored to the pay grade of E-4 and that his record be cleared of any disciplinary actions taken after he had completed his 30-month obligation has been noted and found to lack merit.
2. It is clearly not an established and undisputed fact that the Army represented that he was really only obligating himself to a 30-month enlistment at the time he enlisted or anytime after his enlistment.
3. At the time he enlisted he clearly indicated in writing that he understood the terms of his enlistment and that no other promises that were not annotated on his contract had been made to him. He has provided no additional evidence other than hearsay/argument to dispute his actual contract.
4. Therefore, in the absence of actual evidence to support his argument that the Army reneged on his contract, there is no basis to grant his request.
5. 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.
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 to amend the decision of the ABCMR set forth in Docket Number AR20090007143, dated 24 September 2009.
_______ _ _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) AR20090019739
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ABCMR Record of Proceedings (cont) AR20090019739
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