IN THE CASE OF:	  

		BOARD DATE:	  29 November 2011

		DOCKET NUMBER:  AR20110010330 


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, reconsideration of his earlier request for an upgrade of his undesirable discharge to fully honorable.

2.  The applicant essentially states the following:

	a.  The 1960's were a period of extreme prejudices resulting in assassinations of a President, a candidate for the presidency, and a civil rights leader.  There were the Ku Klux Klan, Jim Crow, and the Black Panthers.  Times were very difficult and dangerous.  There were protests, demonstrations, and marches for civil rights.  Also, the "hippie movement involving 'free love,' [lysergic acid diethylamide], weed, 'peace and love,' and Woodstock" was happening.

	b.  He enlisted for 3 years and served his country with honor for 29 1/2 months.  He contends that in June 1970 he arrived at Fort Ord, CA, where he awaited his discharge.  While waiting, he purchased a pistol at a local pawn shop to give to his parents for their protection during those dangerous times.

	c.  A sergeant who was a southern bigot from Mississippi saw the pistol in his locker.  They had previously had some hot words.  He did not know he was required to register the pistol on post.

	d.  Two Criminal Investigation Division (CID) [now known as Criminal Investigation Command] agents approached him about the pistol they had heard was in his locker.  The agents took the pistol to an office building and began to interrogate him about it.  They threatened him with 12 years of imprisonment.  They pounded on tables and threw chairs.  They shoved him several times and referred to him with racial slurs.  He was not advised of his rights.  They tried to get him to hit them.

	e.  He later went home and explained to his minister what had happened.  The minister called several newspapers resulting in his commander being contacted.  A deal was made between him and his commander wherein the public would not be told about what the Army had tried to do to him and he would receive a general discharge.

	f.  When he returned to Fort Ord he was told to return home and wait for his discharge in 2 weeks.  While at home, the Army called to say there had been a mix-up about whether he was to be discharged while at home or on post.  When he got back to post, he did not get a general discharge.  Rather, he was given an undesirable discharge.  The Army had double-crossed him.

	g.  He did not understand what rights he had.  CID was putting a tremendous amount of fear, stress, and pressure on him.  He had no advocate and did not receive any counseling.  He had no general court-martial.

	h.  He was charged with being absent without leave (AWOL) for more than 30 days.  A sergeant and a specialist five were present when he signed for a general discharge.  He did not even open the envelope, because he thought they had kept their word about receiving a general discharge.  When he got home he discovered he had been given an undesirable discharge.

	i.  He did not receive a mental status evaluation or any debriefing.  He was coerced and threatened.  He was very confused and to afraid to go back and ask why he did not receive a general discharge.

3.  The applicant provides no additional evidence.

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 AR20090018548 on 29 April 2010.  The original Record of Proceedings discussed and concluded:

	a.  The applicant's military records were not available for review.

	b.  Reconstructed military documents showed:

* he enlisted for a period of 3 years
* he completed basic training but was never awarded a military occupational specialty
* he had 401 days of lost time due to AWOL
* he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, with an undesirable discharge

	c.  The facts and circumstances surrounding his discharge were not available for review.

	d.  On 9 October 1970, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

	e.  The applicant based his request for an upgrade of his discharge on his good standing in the community, supported by multiple letters of recommendation attesting to his good character.

	f.  The evidence and argument were found insufficient to warrant his request for relief.

2.  The applicant has not provided any new documentary evidence; however, in the interest of justice, the Board should consider the applicant's additional comments and arguments as stated above.

3.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his undesirable discharge should be upgraded because he was promised a general discharge that he did not receive.  Furthermore, he contends he was threatened, coerced, and denied his rights.

2.  The applicant has provided a lengthy statement of the facts as he recalls them.  However, there are no available records showing the facts and circumstances that led to his discharge.  Furthermore, the applicant has not provided any corroborating documentation to support his argument that his rights were violated.

3.  In view of the above, the applicant's request should be denied.

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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20090018548, dated 29 April 2010.



      _____________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)                                         AR20110010330



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ABCMR Record of Proceedings (cont)                                         AR20110010330



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