MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 4 December 2001
         DOCKET NUMBER: AR2001059990

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. JoAnn H. Langston		Chairperson
Ms. Margaret K. Patterson		Member
Mr. Eric N. Anderson		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that as the son of the deceased former service member (FSM) he asks that his father’s dishonorable discharge (DD) be upgraded to honorable and that his awards of the Bronze Star Medal (BSM) and the Army of Occupation Medal (AOM) be restored to him. He further asks for restoration of pay and allowances.

APPLICANT STATES: In effect, that a review of the records will show that his father was wrongly and falsely accused and his guilt was not proved beyond a reasonable doubt. As a result, the FSM had to live with the stigma of a DD, could not vote or be employed by the Federal government, or by any business or company that viewed this type of discharge as a bar to reenlistment. He claims the FSM denied any involvement in the incident for which he was accused, convicted of, and sentenced. The FSM’s son further contends that it is illogical to conclude that all seven of the Black soldiers, if any, committed these crimes. Specifically, there is no evidence which proves beyond a reasonable doubt that his father killed or assaulted the White soldiers in question. He claims that the relatively light sentence he received for this capital offense is illogical, particularly in view of the racial prejudice, inequality, and egregious injustice that Black troops had to endure in the United States Army in 1946. Moreover he claims his father’s sentence was adjudged on 18 November 1946, and the reviewing authority apparently thought something was not right with this case because he reduced the period of confinement from 8 to 5 years, which is unheard of for a capital offense and given the soldier that was killed and the one assaulted were White. He claims that it is his belief that in this highly charged racial climate, his father, along with six other Black soldiers were targeted and made scapegoats to avenge the death and assault. He finally requests that the Board review his father’s case from not only a legal perspective, but also from a historical perspective. While race relations have improved, a Black person had very few civil rights 54 years ago, and no recourse if accused of a crime against a White person. In support of his request, he provides a copy of his father’s death certificate and his birth certificate confirming that he is the son of the deceased FSM.

EVIDENCE OF RECORD: The applicant's military records show:

The deceased FSM was inducted into the Army on 20 June 1944, for the duration of World War II plus 6 months. He completed his initial training and was assigned to the European Theater of Operations (ETO) on 11 February 1945. The FSM served with the 3121^st Quartermaster Service Company and participated in the Rhineland Campaign of World War II.

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On or about 31 December 1945, the FSM was involved in a riot off post that resulted in the death of one soldier and the assault of another. An investigation was conducted and resulted in the FSM and six other individuals being charged with two specifications of violating the 93^rd Article of War (Various Crimes). Specification 1 was for acting jointly, and in pursuance of a common threat, willfully, feloniously and unlawfully killing another human being, by shooting him with a carbine (Manslaughter) and specification 2 was for acting jointly, and in pursuance of a common threat, committing an assault, with intent to do bodily harm, upon another by striking him on the head with a dangerous weapon, to wit: a pistol. In addition, there was a second charge of violation of the 89^th Article of War (Good Order to be Maintained and Wrongs Redressed). The specification of this charge was that acting jointly, and in pursuance of a common threat, the FSM along with six other soldiers did commit a riot by unlawfully and riotously, and in a violent and tumultuous manner, assemble to disturb the peace.

On 14 January 1946, the FSM completed a written sworn statement in which he denied having a weapon and entering the café on the evening of the events in question. However, he did admit that after being told their weapons carrier had been shot at earlier in the evening he joined the group of soldiers that left the company area in the weapons carrier for the café where the earlier incident had occurred. He also admitted to seeing a carbine rifle in the front seat of the weapons carrier and that he joined this group knowing they were going to the café to confront the soldiers there and what he thought was to bat it out with their fists.

A general court-martial (GCM) was convened in Heidelberg, Germany from
13 through 18 November 1946. The FSM appeared before this GCM panel and entered a plea of not guilty to all of the above discussed charges and specifications. On 18 November 1946, the FSM was found guilty of all charges and specifications along with six other soldiers. He was sentenced to receive a DD, a forfeiture of all pay and allowances, and confinement at hard labor for
8 years. The reviewing authority approved the sentence; however, in the applicant’s case reduced the period of confinement to 5 years.

On 22 January 1947, the Staff Judge Advocate (SJA), Third United States Army, conducted a review of the FSM’s record of trial. It indicated that the FSM had made the following admissions during the investigation that led to the trial. After being told that their weapons carrier had been shot at earlier in the evening, he joined a group of soldiers from his unit and rode on the weapons carrier to the Red Cross Club and the Café; he had seen a carbine in the weapons carrier; he was headed toward the café when he heard shots fired; he ran back and jumped on the 6X6 truck; and it was his belief they were going to the café to bat it out with their fists.

The final conclusion of the Third Army SJA was that all seven members were legally found guilty of all the charges and specifications. The specific comments made pertaining to the FSM were that although he saw a gun in the weapons carrier, he went along with the trucks with the belief they were going to bat it out with their fists. Finally, the SJA found that although it may be questionable if any of the seven accused members fired the shot that killed the soldier, they were nevertheless accountable as principals for acts committed by the members of their group and on 25 January 1947, the convening authority approved the FSM’s sentence, but remitted 3 years of the confinement at hard labor.

On 28 April 1947, a Board of Review, Office of The Judge Advocate General (OTJAG), War Department, Washington D.C., examined the record of trial and held that it was legally sufficient to support the sentences imposed. On 9 May 1947, TJAG advised The Adjutant General (TAG) that the Board of Review determination was approved and that authority was now granted to order the execution of the sentences. The Board of Review also indicated that the offenses merge in the riot as to maximum punishment and the final action was promulgated in GCM Orders Number 161, dated 13 May 1947, published by the War Department, Washington, D.C.

On 25 July 1947, the FSM was dishonorably discharged from the military service after completing a total of 3 years, 1 month and 5 days of creditable active military service and having accrued 247 days of lost time due to confinement.

The WD AGO Form 53-57 (Enlisted Record and Report of Separation, Dishonorable Discharge) issued to the applicant on the date of his discharge confirms, in Item 33 (awards and decorations), that he was awarded the European-African-Middle Eastern Campaign Medal (EAME) with a bronze service star denoting his campaign participation and the AOM.

On 29 December 1947, by direction of the President, the FSM’s sentence to confinement that was in excess of 3 years was remitted. On 3 September 1948, the FSM was informed that he had been granted a parole, effective
20 September 1948.

On 11 January 1949, TAG provided the following response to a letter from the Secretary, Veterans’ Affairs (VA). A review of the FSM’s case showed that the proceedings in his case were accomplished in accordance with statutory requirements throughout; there were no errors or irregularities prejudicial to his substantial rights; the evidence adduced at the trial was adequate, competent and compelling, and of such a nature as to justify the court in arriving at its findings of guilty.

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Army Regulation 15-185 prescribes the policy and procedure of correction of military records by the Secretary of the Army through the Army Board for Correction of Military Records (ABCMR). Paragraph 2-9 stipulates that the ABCMR begins its consideration of each case with the presumption of administrative regularity and that the applicant has the burden of proving error or injustice by the preponderance of the evidence.

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 deceased FSM’s trial by a GCM was warranted by the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable law and regulations in effect at the time, and his discharge appropriately characterizes the misconduct for which he was convicted.

2. The Board notes the applicant’s contention that the FSM denied any involvement in the incident for which he was accused, convicted, and sentenced and that racial prejudice was the basis for the prosecution. However, it finds the applicant has failed to provide sufficient evidence to meet the regulatory burden of proof necessary to show an error or injustice by the preponderance of the evidence, as is required by law and regulation.

3. While the Board understands the applicant’s feelings in regard to the racial elements involved in this case and freely admits that racial bias was more prevalent during the timeframe in question, it does not find sufficient convincing evidence that this was the basis for the FSM’s prosecution in this case.

4. In the opinion of the Board, notwithstanding the lack of his physical involvement in the direct action that led to the death of one soldier and the assault of another, the trial record clearly shows the FSM was an active and willing participant with the group that traveled to the site of the incident with weapons to confront the group of soldiers at that location.

5. Further, while the Board does not contest that there were possibly racial elements involved between the groups of soldiers involved in this incident, which may very well have resulted in the reduced charges and in leniency granted in sentencing by the reviewing authority, it does not find compelling evidence to show that racial prejudice was the basis for the FSM’s prosecution or conviction. Further, the Board concludes that even had racial bias existed and been the cause for the incident, this would not mitigate the FSM’s misconduct sufficiently to warrant an upgrade of his discharge.

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6. The FSM’s separation document shows that during his active duty tenure the FSM earned the EAME with a bronze service star denoting his campaign participation and the AOM. His conviction or discharge did not impact his entitlement to these awards and there is no evidence to show he was ever recommended for, awarded, or entitled to receive the BSM. Therefore, the Board finds no error or injustice related to the FSM’s earned awards and it concludes no correction action is required in regard to this issue.

7. In view of the foregoing, there is no basis for granting the applicant's 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

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR200159990
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/12/04
TYPE OF DISCHARGE	DD
DATE OF DISCHARGE	1947/07/25
DISCHARGE AUTHORITY	AR 615-364 & GCM
DISCHARGE REASON	GCM conviction
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.00
2.
3.
4.
5.
6.