APPLICANT REQUESTS: In effect, that his dishonorable discharge be upgraded.
APPLICANT STATES: That he received a general court-martial without knowing the reason why. Also, he was wounded in Italy during World War II and did not receive the Purple Heart.
EVIDENCE OF RECORD: The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973. Information herein was obtained from the record of his trial by court-martial.
He was inducted in the Army on 27 November 1943 at the age of 22 and was dishonorably discharged following conviction by a general court-martial on or about 13 August 1946.
On 19 October 1944, while serving in Italy, the applicant was accused of violation of the 75th Article of War (misbehavior before the enemy) by failing to join his unit which was at that time involved in combat with the enemy.
On 22 January 1945 charges were preferred against him for two specifications of violation of the 75th Article of War. Specification 1 occurred on 19 October 1944 when he absented himself without proper authority from his organization, which was engaged with the enemy, and did remain absent until he was apprehended on 22 October 1944. Specification 2 occurred on 22 and 23 October 1944 when he repeatedly refused to rejoin his platoon, which was then engaged with the enemy.
The applicant was apprised of the charges against him on 22 January 1945. He also underwent a psychiatric evaluation which determined that he understood the nature of the proceedings against him and, at the time of the offenses charged, he was not suffering from any mental defect, disease or derangement.
He pleaded not guilty to both specifications before a general court-martial that convened on 6 February 1945. During the course of the trial the applicant appeared as a sworn witness in his own behalf. During his testimony, he acknowledged that he was the accused in the case and that he understood his rights. In addition to answering the charges against him, it was revealed that prior to the incidents in question, he suffered a wound to the thigh as the result of enemy action. But subsequent testimony established that the wound would not have affected his ability to carry out the orders given to him to rejoin his unit. (Hospital admission files of the Surgeon General substantiate his testimony that he sustained wounds during that time period while assigned to a unit in Italy).
On 6 February 1945 the applicant was found guilty of the charge and both specifications against him. He was sentenced to be shot to death with musketry. However, the reviewing authority commuted the death sentence to a suspended dishonorable discharge, total forfeiture of pay and allowances, and confinement at hard labor for a period of 20 years.
On 13 February 1946 his conviction was reviewed by the Army Clemency Board. The board determined that the applicant had a low borderline intelligence level, possessed only a 7th grade education and suffered from impulsive and unstable behavior patterns. The board believed that combat, during which he was wounded, was an extenuating circumstance which placed him under greater strain than he was able to tolerate. The board further believed that he would not benefit from additional confinement and recommended complete remission of confinement in his case.
On 5 March 1946 the applicants period of confinement was reduced to a period of no more than 6 years, and on 13 August 1946, at the direction of the President, his sentence to confinement was remitted to time served and he was released.
Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record.
The same regulation states that a personal decoration will not be awarded or presented to any individual whose entire service subsequent to the time of the distinguished act, achievement or service has not been honorable.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. The evidence of record in this case does not support the applicants contention that he did not know the reason for his court-martial. The record of trial shows that he was apprised of the charges against him prior to the court-martial and during the proceedings he appeared as a witness in his own behalf, indicating that he must have had some appreciation of the charges against him. Finally, in court, he acknowledged under oath that he was the accused in the case and that he understood the charges against him.
2. The applicant received clemency at the time his death sentence was commuted and further relief is not warranted.
3. The evidence of record also shows that he was wounded in action as a result of enemy action. Normally, such a wound would qualify for award of a Purple Heart. However, in this case, his conduct and behavior subsequent to his wound was not honorable, in light of his general court-martial conviction, and he should not, therefore, be awarded a Purple Heart.
4. In view of the foregoing, there is no basis for granting the applicants request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
David R. Kinneer
Executive Secretary
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