MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 1 April 2003
         DOCKET NUMBER: AR2002078283

         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. W. W. Osborn, Jr. .		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas B. Redfern		Member
Mr. Thomas E. O'Shaughnessy		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: That his dishonorable discharge be upgraded to honorable.

APPLICANT STATES: In effect, that the discharge was unjust. He feels he was simply doing his duty as a soldier. He submits letters from his chain of command at the time and character references from long time friends. He also requests a personal appearance before the Board.

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

He enlisted in 1960, completed training as an infantryman and reenlisted in 1963. He was promoted to sergeant (E-5) on 23 March 1965 and reported to Vietnam for duty with C Company, 2^nd Battalion, 2nd Infantry on 23 December 1965.

He was wounded in action and hospitalized. On 11 October 1966 he was tried by a general court-martial and convicted of one specification of premeditated murder of a Vietnamese youth and one specification of unpremeditated murder of a second Vietnamese youth. The approved sentence included total forfeitures, reduction to pay grade E-1, imprisonment for life and a dishonorable discharge. Following the trial the applicant was confined at the United States Disciplinary Barracks (USDB), Fort Leavenworth, Kansas.

The Board of Review approved the findings and sentence, but the Court of Military Appeals (COMA) found that the law officer's failure to instruct the panel members on self-defense and a faulty instruction regarding character reference evidence constituted prejudicial error. The COMA remanded the case to The Judge Advocate General for disposition. The Judge Advocate General referred the case to the Commandant, USDB, Fort Leavenworth, Kansas for rehearing.

The rehearing was conducted on 25 and 26 June 1968. The charge was, again, one specification each of premeditated and unpremeditated murder.

The prosecution presented evidence showing that the two Vietnamese youths were in a tent talking with two American soldiers, Private First Class (PFC) P____ and PFC J____ when the applicant came in to get his gear. He picked up and loaded his M-16 rifle and approached the group. PFC J____ asked him what he was doing. He replied that he was going hunting. When PFC J____ remarked that he hoped the sergeant would "go out yonder" to do his hunting, the applicant replied that he could hunt anywhere. He pointed the rifle at one of the Vietnamese. The boy raised his hands and protested that he was not a Viet Cong. The applicant lowered the weapon and the witnesses thought he would leave the tent, but then he trained the weapon back on the youth and fired.

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PFC P____ rolled onto the floor and out under the tent flap. The applicant turned to PFC J____, told him to leave the tent. PFC J____ did so and then heard another burst of gunfire. PFC P____ described the applicant as "glassy eyed”, with "a real smirkish smile on his face."

Further testimony established that there were two weapons in the tent but none near the Vietnamese and neither made any move toward any weapon.

The applicant testified in his own defense. He had been in Vietnam for eight months. He had been hospitalized for a wound to the back. He did not trust the Vietnamese. People who received food and medical aid from American soldiers during the day were trying to kill them at night. He had lost many friends. When he entered the tent on 29 August 1966 he had gone from bright sunlight and could not see in the dim light. He had picked up his rifle, chambered a round and then noticed the two Vietnamese. He asked them to show their identification (ID) cards, they started laughing and refused to show their ID cards. It appeared to him that one had pulled a .45 caliber pistol. He killed the Vietnamese before he had time to think. There was a movement behind him. He thought the other one was trying to get him from behind. He spun and fired without thinking. He did not recall seeing other Americans in the tent.

The platoon sergeant and the platoon leader both testified that there was a general distrust of all Vietnamese among the members of the platoon and that their training stressed the instant application of firepower to any perceived danger. They also stated that the applicant had been hospitalized after being shot by a sniper and that he had just returned from Rest and Recreation (R and R) when the shooting occurred.

A psychiatrist, Major B____ testified for the prosecution. He stated that the applicant suffered from a character disorder classified as a schizoid personality. At the time of the incident, the applicant "carried with him many anxieties or fears about returning to duty" and that, in his opinion, the applicant did not premeditate the killings.

A defense psychiatrist, Captain K____, was of the opinion that the applicant was somewhat impaired in his ability to judge right from wrong and in his ability to adhere to the right. Captain K____ also opined that the applicant's "glassy eyed" appearance may have been an indication of his disturbed state of mind.

The court-martial panel found the applicant guilty of unpremeditated murder on both counts and sentenced him to total forfeitures, reduction to pay grade E-1, confinement for 50 years, and a dishonorable discharge.

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The staff judge advocate recommended that the convening authority (CA) credit the applicant with all time served to date and that he approve the findings and sentence as adjudged. The CA did so and ordered the applicant confined at the USDB, Fort Leavenworth, Kansas pending appellate review.

The Army Board of Review found that the new CA lacked jurisdiction and that the case should be returned to the Judge Advocate General for further proceedings.

The COMA ruled that, where an appellate court had directed a rehearing, the jurisdictional question was not an issue. COMA returned the case to the Judge Advocate General for further consideration by the Army Court of Military Review.

The Army Court of Military Review cited possible mitigation arising from: Conditions at the base camp, such as tunnels under the compound, booby traps under bunks and a camp policy excluding all Vietnamese from any tent; the applicant's situation, by returning from R and R to learn friends had been killed by persons believed to be trusted Vietnamese nationals; and his own schizoid personality traits that had progressed "…to the point that every Vietnamese person was a Viet Cong, not a single [such] person could be trusted." The findings and sentence of the rehearing were approved, except that the confinement was reduced to 15 years.

On 12 January 1971, the provisions of Article 71(c) of the Uniform Code of Military Justice having been complied with, the dishonorable discharge was ordered executed. The applicant was discharged on 8 February 1971. He had a total of 5 years 9 months and 29 days of creditable service. He was released on parole from the USDB on 27 April 1971.

On 20 June 1974 the Secretary of the Army acting through the Army and Air Force Clemency and Parole Board remitted the sentence in excess of 9 years. Further, by order dated 1 May 1975 the unexecuted sentence to confinement was remitted. The applicant was released from parole and set at liberty on 12 May 1975.

The statements submitted in support of the current application consist of the following:

•         A retired first sergeant writes that he believes that the applicant's military service prior to this incident, his exemplary conduct in confinement and his post-service personal behavior all demonstrate that the applicant is not a dishonorable person. He sees the applicant as a person of many admirable traits who made a grave mistake when confronted with an unforeseeable situation. He considered the applicant an outstanding leader who made levelheaded decisions. He reestablished contact with the applicant about 11 years ago. He knows that applicant, "gives both time and money to help preserve veteran’s rights and benefits, most of which he is not eligible for under his current discharge restrictions." The applicant attends the unit’s annual reunions and goes out of his way to provide transportation to disabled veterans who could not otherwise attend. He is proud to consider the applicant a life-long friend and a brother–in–arms and he feels that changing the discharge to allow the applicant to receive veteran's benefits would be appropriate.

•         A retired lieutenant colonel, the applicant's platoon leader at the time, describes the applicant as a well-trained leader who looked after the welfare of his men. He was not known to have displayed malice toward the Vietnamese people. He believes that the applicant's state of mind and the fact that he had been trained to simply react to situations were important to the incident. He describes the applicant as simply reacting to a perceived danger. He believes that the applicant was convicted with the help of the media and public opinion. He describes the applicant as a model prisoner, a good husband, and a valued employee and an asset to his community. The applicant is a church member and has been a volunteer ambulance attendant for 17 years. He believes that those who avoided the draft dishonored themselves and the nation and that the applicant performed his duty, got caught up in an unfortunate situation, then took his punishment and got on with his life. He recommends that the applicant's dishonorable discharge be upgraded.

•         A retired major, the company commander, writes that the applicant was an outstanding leader, that the applicant's platoon was, usually the point platoon and always accounted for and engaged the enemy. The applicant was always active in these engagements. He feels that the trial itself was unjust. In his opinion, the applicant was
simply reacting to the situation. He feels the applicant should be restored to an honorable discharge. He has attended four or five unit reunions and those whom he has talked to also feel that the applicant's punishment was unjust.

•         A next-door neighbor, for 11 years, writes that she could not ask for a more considerate, caring friendly neighbor. “He is there to offer a hand no matter when I need him.…He is a fine man, respected by all his neighbors." She thinks he is deserving of an honorable discharge.

•         A family friend writes that she has known the applicant for 25 years. He is a dependable and diligent worker and a friend who is generous of his time and talents. He has helped her family through many hard times.

•         The applicant's sister writes that, since he was released from prison, he has lived a very good life. He is well thought of in his community and has volunteered on ambulance calls for years. She works in a state prison and knows convicts who are veterans; although they have been convicted of crimes they still have their honorable discharges. She believes that her brother has paid his debt to society and should be considered for an honorable discharge

•         Another sister writes that the applicant's father drank a lot and was mean to him. Her husband died of cancer in February 2003. The applicant was always there for her and she knows that he will be in the future. She thinks that the life sentence was unfair and that the Army would not treat soldiers so harshly now. She believes that he was done a great injustice.

•        

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The applicant's brother-in-law states that the applicant is an asset to his community, that he is always doing everything that he can for friends and family. His discharge should be upgraded.

•         A lifelong friend writes that the applicant is honest, dependable, generous and a hard worker who has integrity. He is very patriotic and keeps up with his Army buddies. He is a "true blue American" and deserves an honorable discharge.

•         A neighbor says the applicant is always willing to help. The neighbor was personally helped by the applicant's activity as a volunteer ambulance attendant.

•         An 83 year-old widow describes that applicant as a blessing. He does her grocery shopping every week. He fixes her plumbing and "whatever else is needed."

•         An acquaintance of 25 years cites that applicant's service as a volunteer ambulance attendant who "has a willingness to help and asks nothing in return."

•         Another, who has known the applicant for 10 years states that he is a very caring and compassionate person. He is always ready to help and deserves an honorable discharge.

•         Another sister confirms that their father was especially abusive to the applicant, but he grew up to be fine man who is always willing to help anyone in need.

•         An acquaintance of 25 years considers the applicant a great friend and family man who is involved in many community activities. He is active in the Vietnam Veterans and deserves an honorable discharge

•         An in-law writes that he sponsored the applicant as a member in a Polish civic organization and the applicant has served as an officer for many years. The applicant is always available to help anyone who needs help.

•         An acquaintance of 22 years standing writes that the applicant inspired his younger brother to become a volunteer ambulance attendant. The applicant concern and compassion are boundless. He is deeply committed to his family, community, and nation. He is personally aware of the applicant's helping care for an elderly person who cannot control her bodily functions and of his actions in helping extricate an injured person from a wrecked vehicle. He believes, in effect, that the discharge should be upgraded.

There is no statutory or regulatory right to a formal hearing. The Board receives over 12,000 applications each year, but normally grants only approximately 15 formal hearings a year. Formal hearings are granted only when the Board determines that a case is so complex, or the records so incomplete that only sworn testimony can provide the necessary information.

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. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2. The supporting statements from the applicant's chain of command that speak to the situation and their opinion that he was simply reacting relate to evidentiary and procedural matters which were finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for recharacterization of the discharge.

3. The supporting statements relating to the applicant's post-conviction behavior and conduct have been carefully considered but these matters do not outweigh the seriousness of the offenses that led to the discharge.

4. The Board does not consider a formal hearing is warranted in this case.

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5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

6. 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:

__AAO__ __TBR___ _TEO___ 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	AR2002078283
SUFFIX
RECON
DATE BOARDED	20030401
TYPE OF DISCHARGE	DD
DATE OF DISCHARGE	19710208
DISCHARGE AUTHORITY	AR 635-200. . . . .
DISCHARGE REASON	SPN 292
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	A92.21
2.
3.
4.
5.
6.