Breach of Contract; BadApple please help.

[Davidzill]

CA. I am a prior service Marine now a California Gaurdsmen who was just alerted yesterday that I am to report to SRP so I can be a casualty replacement in Iraq. I joined the Guard 1 1/2 years ago as a garunteed 19K(Tank crewman), but still have yet to go to armor school. I still carry my Infantry MOS(11B), and from what I was told I am deploying as an 11B for my MOS. I do not want to, I want to be a 19K as per the first or second line on my enlistment contract. They can stoploss me or extend me all they want, just let me have the damn MOS I chose and am fully qualified for. Question is: Is this breach of contract, and if so, what should I tell the JAG when I go through SRP this week? This couldn't come at a better time because my brother was killed a little over a month ago and I am the sole surviving son. I don't think I'll survive the next time through over there, my parents is worried he will burry his last child before he even retires.

 

[fozzy2]

Well, it would appear that there is good news and there is bad news. From what I understand (not being an attorney, mind you) you can request a discharge - which might spur the military into giving you the school you were guaranteed. But there is a catch, which I'll get to.

Assuming that you were guaranteed that MOS training in your enlistment contract, and did not get it, the applicable regulation would appear to be
AR 635-200 ch 7-16, "claims for unfulfilled enlistment commitment." According to the regulation you can file a DA Form 4187 requesting separation. (This is a standard form used for a number of "personnel action" requests).

Here is the kicker. Down in (4) in the regulation it states that such requests should be made "30 days after the defect was discovered or reasonably should have been discovered by the soldier." In other words, you can't just wait forever (or until it is handy for you) to make your request for discharge. You have 30 days from when you discovered, or "reasonably should have discovered", that the government was not going to fulfill your contract.

The Army *might* argue that since you haven't received your guaranteed training in a year and half, you should have long ago "reasonably" realized/discovered the problem and already made your request for discharge. Since you haven't, you have what is in effect a 'constructive enlistment' in which you have agreed (by going along with) to serve as an 11B.

Of course, you can argue that you were just being patient and it was not unreasonable for you to wait this long to complain. Your case might be bolstered if, for example, superiors told you your training was "in the works" or "being scheduled" or that the Guard is just Godawful slow about such things. You can also argue that you DID complain to your chain of command but either were not told, or were mistold, about the regulation and the 30 day period. ("Miscounseling" is a frequent, but difficult, defense).

I would talk to a JAG as soon as humanly possible. One problem you face is the timing of your request. If it is being done in the face of deployment the Army will claim your only reason for requesting discharge is the deployment, not the lack of training/MOS guaranteed. In addition, if you are deployed "pending a decision" or such, then your odds of getting approval will probably go down.

I'm not familiar enough with the Army or Guard to predict how this will likely turn out. If it were the Navy of a few years back, however, you would almost certainly have your discharge approved even if they put a "pro forma" paragraph about how they didn't *have* to but did so out of the goodness of their hearts. The Navy is meeting all its enlistment quotas, however....

 

[Davidzill]

Thanks for the advice, but I figure I'm good to go do to the fact that I'm not trying to get out, and they can't force me to serve as an MOS that is not on my contract. I simply bring it up and REMIND them they are breaching my contract when they say "You got orders to such and such unit as an 11B" when I joined as a garunteed tanker. This is breach of contract and it is illegal, even though I was an infantryman in the Marines. The 1st SGT would simply ammend the orders and they would find someone else. Keep in mind that I am a California Gaurdsman and was told I was being transfered to the Kentucky National Guard indefinately as a replacement. Hell if they still tried to force me I would just go through the Inspector General numbers...if that didn't fix the problem I would go on a campaign calling all of my congressmen and women.

 

[fozzy2]

Actually, if I uderstand correctly, they CAN force you to serve in any MOS they choose. Your enlistment probably guaranteed *training* as a tanker. What you are actually assigned to do every day is up to the military. They can give rifles to nukes and spooks and order them to infantry units. Of course, if our nation is THAT desperate we are in big trouble.....
Naturally the military tries to assign people in accordance with their skills/designators. But the military routinely cuts orders for "out of rate" assignments. In the US Navy one of the big ones was physical security. Likewise, even within a command you could always be assigned "out of rate" to X-division, barracks, etc.

The point is that you may not have as firm a legal base to stand on as you think. There are a *lot* of people who phone hotlines and congressional offices who end up not being very happy. As I pointed out, a court could decide that you had willingly acceded to modification of your contract by not objecting in a timely fashion. The regulation (which has been thoroughly reviewed by attornies) explicitly states a 30 day deadline. Just ask any attorney how courts are about meeting deadlines.....