2. The applicant requests, in effect, that his 20 December 1952 dishonorable discharge (DD) be upgraded to honorable (HD). He states that he was the victim of racism and that his medical condition was not given proper weight at his trial by general court-martial.
3. The applicant is a black man, born in Columbus, Ohio, on 12 January 1933. He enlisted in the Regular Army for 3 years on 8 August 1950. His initial service was at Fort Knox, Kentucky. While there, he was tried and convicted twice by summary courts-martial for being absent without leave for 4 days, and for being absent from his place of duty. His conduct and efficiency ratings were unsatisfactory.
4. On 2 January 1951, the applicant arrived in Korea and was assigned to the 15th Infantry Regiment, 3rd Infantry Division. On 31 January 1951, he received fragment wounds in his left shoulder. He was evacuated to Japan for medical treatment, then returned to his unit. On 7 June 1951, he was wounded in the back and, once again, evacuated to Japan. He was marked fit for duty and sent back to Korea with an open wound in his back. This created medical problems which caused his permanent evacuation in September 1951. After spending 3 months in Japan, he was sent back to the United States in December 1951.
5. Upon his return to the United States, the applicant was reassigned to Fort Knox. While there, he received two more summary courts-martial for failure to report for Kitchen Police (KP) on 18 February 1952, and for disobeying an NCO on 2 May 1952. At approximately 0530 hours, 3 June 1952, the Charge of Quarters (CQ) awakened the applicant for KP duty, but the applicant stated that he would not report for duty. The applicant got up and went to breakfast at 0610 hours. Following his breakfast, the Mess Sergeant approached him and ordered him to report for KP duty. He ignored the Mess Sergeant. Shortly thereafter, the Company Commander found him in bed and ordered him to report for duty. He refused.
6. The applicant was tried by a general court-martial on 17 July 1952 for three specification of failure to obey a lawful order to report for KP duty. He pleaded not guilty and, at trial, attempted to show that he was not rostered to perform KP duty, but was the victim of a whim of the first sergeant who verbally assigned him to duty at the last minute. He also attempted to show that his medically documented war wounds gave him a physical profile which precluded him from duty involving heavy lifting and/or prolonged standing. Trial counsel argued that, even if he was not on the KP duty roster, he still disobeyed the verbal orders of the CQ, the Mess Sergeant, and the Company Commander. He also argued that KP duty did not violate the applicants profile against heavy lifting and/or prolonged standing. Contrary to his plea, he was found guilty and sentenced to 5 years confinement and a DD. On review, The Judge Advocate General reduced the period of confinement to 2 years.
7. The Military Justice Act of 1983 (Public Law 98-209), provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial.
CONCLUSIONS:
1. The applicant had a series of minor violations of military regulations for which he received four summary courts-martial. These convictions were presented at his general court-martial as proof that he was an habitual offender and, most probably, influenced the court towards a harsher sentence.
2. The applicant probably should never have been placed on KP duty because of his physical profile. KP routinely involves the lifting of heavy items--sacks of food (potatoes), full trash cans, etc.--and interminably long period of prolonged standing.
3. The applicant was guilty of disobeying a lawful order, however the command was disproportionately harsh in referring the matter to a general court-martial, and the courts sentence was too harsh for the offense committed.
4. While the Board cannot, by law, disturb the finality of a court-martial conviction, it can mitigate the punishment when deemed appropriate. In this situation, the documented evidence, as well as the applicant's record, justifies mitigation. It would, therefore, be unjust and inequitable, after more than 40 years, to continue to cause the applicant to suffer the stigma of a DD.
5. In view of the foregoing findings and conclusions, and in the interest of justice and equity, it would be appropriate to correct the applicants records as indicated below.
RECOMMENDATION:
1. That all of the Department of the Army records related to this case be corrected by voiding the DD of 20 December 1952, now held by the individual concerned, and issuing him a General Discharge Certificate, dated 20 December 1952, in lieu of the same.
2. That so much of the application as is in excess of the foregoing be denied.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
X X X GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
ABCMR Proceedings (cont) AC58-01729B
4
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