RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 MAY 2005
      DOCKET NUMBER:  AR20040004052


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Carmen Duncan                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the records of her spouse, a deceased
former service member, be corrected by upgrading the character of his 1951
discharge to honorable as a matter of clemency.

2.  The applicant states that clemency is warranted because of the
injustice suffered by her spouse as result of the adverse consequences of a
bad discharge.  She states that her spouse was constantly reminded of the
stigma of his discharge which affected his family relationships,
employment, health, education, and home ownership.  She notes that under
“current standards,” and because of many changes in the Armed Forces and
laws affecting racial discrimination, she believes that he would not now
receive the same type of discharge.  She states that in spite of the
desegregation of the military, fair treatment to all servicemen was ignored
“and/or taken to the extreme.”  She believes his discharge was too harsh
and was much worse than most people received.

3.  The applicant states that her spouse was an infantryman and moved up
the ranks to corporal, that he was a hard worker, showed initiative and
determination, and worked well with others, and was also dependable.  She
states that his good service should be taken into account as a basis to
upgrade his discharge and that racial discrimination impaired his ability
to serve.  She states he was a member of an Elite Honor Guard during the
Nuremburg Trials and was asked by General Ridgeway to accompany him to
Korea but he did not go “because he was a victim of prejudice and racial
discrimination” when the “so-called riot supposedly broke out.”

4.  She states that members of his command used her spouse as an example
and that giving him a bad discharge was a “method to prevent a Negro to
achieve or further any life ambitions.”  She states that her spouse was
confined but that his sentence was overturned “through the sacrifices of
his father…and step-mother.”

5.  The applicant also states that her spouse was a good citizen following
his discharge and worked for the Burton Dixon Corporations for 15 years
until the company closed.  She notes they married in 1970 and that he
worked a variety of jobs and ultimately was employed as a clerk for the
Cook County Circuit Court.

6.  The applicant provides two statements commending the former service
member for his contributions to the Democratic Party of Illinois, a letter
of sympathy from the Circuit Court Clerk’s Office as well as a birthday
greetings.  She also submits two letters from individuals attesting to the
former service member’s good character.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel argues that “there were racial and social issues that pervaded
the military forces in the day and time of the court martial and these
issues influenced the climate of interracial relations in the Korean War
era” as evidenced by the civil rights act of 1964 and equal opportunity
employment acts that were passed after this incident.

2.  Counsel states that the former service member’s “successful
rehabilitation, and integration into society” is demonstrated by the record
and evidence submitted by the applicant and notes that the Board has
previously acted to change the characterization of a discharge in such
cases.  Counsel reemphasized the same issues of post service
accomplishments cited by the applicant.

3.  Counsel notes that the former service member’s military service “was
not one indicative of a pattern or repetition of misconduct” and that this
“one incident, brought on in the heat of a moment by an act of his
misjudgment.”  It should not be the defining moment in this person’s life.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate that the former service member
entered active duty in May 1948 and was trained as an infantryman.  He was
several months shy of his 18th birthday when he enlisted and had completed
nearly 10 years of formal education.

2.  In August 1948 he was assigned to an infantry battalion in Landshut,
Germany and was promoted to the rank of corporal by September 1950.

3.  In April 1951 the former service member, who was now 20 years old, was
convicted by a general court-martial of acting with another Soldier “in
pursuance of a common intent” on 19 March 1951 to commit a riot, along with
“about” 12 other individuals, and “did unlawfully and riotously assault an
unknown number of persons by striking with fists, objects, and breaking of
glass and furniture, to the terror and disturbance of” a woman proprietor
and her guests.  The charge was violation of the 89th Article of War.  Both
the service member and the other Soldier were sentenced to be dishonorably
discharged, forfeit all pay and allowances, and to be confined at hard
labor for 1 year.  The sentence was adjudged on 20 April 1951 and affirmed
on 28 May 1951.  The sentence was ordered “duly executed” on 19 July 1951.

4.  On 30 July 1951 the former service member was dishonorably discharged.
He had nearly 3 years of active Federal service at the time of his
discharge.

5.  In a statement regarding the former service member’s offense, completed
as part of a clemency and parole evaluation, it was noted that on 19 March
1951, five white Soldiers from an Armored Cavalry unit were in a café in
Landshut, Germany, which was owned by a German National.  At about 2300
hours two German girls entered the café and asked for a room for the night.
 When the proprietress turned them down, one of the five white Soldiers
referred to them in a derogatory manner, using derogatory language.  The
two German women left the café and told the former service member and his
friend (the other Soldier court-martialed for the same event), “who were
waiting for them in a taxi” about the incident.  The former service member
and his friend entered the café and approached the five Soldiers, but then
left the café together.  The former service member and his friend went to
another café where they were joined by several other Soldiers before
returning to the first café in two taxicabs.  The former service member,
his friend, and the other Soldiers confronted the white Soldiers and a
“general fight and melee resulted with ash trays, chairs, bottles, and
glasses being destroyed.”  The fight lasted several minutes, “during which
three of the white Soldiers were injured and knocked to the floor” at which
time the Soldiers, and the two German women left the café.

6.  The statement noted that two master sergeants and a captain testified
during the court-martial that the former service member was an excellent
Soldier.  However, the former service member “elected to remain silent”
except for reciting details of his civilian and military background.  While
in confinement the former service member stated that he stayed outside the
café during the fight.

7.  According to documents in the former service member’s file, his father
wrote the President in September 1951.  In November 1951 the former service
member was denied clemency but was paroled to his home.  As part of an
evaluation, conducted prior to the clemency and parole decision, it was
noted that the former service member’s sentence was not excessive and that
he “demonstrated his consent by enlisting revenge of other Soldiers.”

8.  The 89th Article of War applied to “committing riot” and noted that a
riot “is a tumultuous disturbance of the peace by three or more persons
assembled together of their own authority, with the intent mutually to
assist one another against anyone who shall oppose them in the execution of
some enterprise of a private nature, and who afterwards actually execute
the same in a violent or turbulent manner, to the terror of the people,
whether the act intended was of itself lawful or unlawful.”

9.  The Articles of War were replaced by the Uniform Code of Military
Justice.  Under the Uniform Code of Military Justice the maximum punishment
for violation of Article 116 (Riot) included a dishonorable or bad conduct
discharge, confinement for 10 years and total forfeiture of pay and
allowances.

10.  Army Regulation 635-200, which currently establishes the policies and
provisions for the separation of enlisted Soldiers, states that an
honorable discharge is a separation with honor.  The honorable
characterization is appropriate when the quality of the Soldier’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.

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted and his discharge was accomplished
in accordance with applicable laws and regulations.  There is no evidence,
and the applicant has not provided any, that her spouse’s separation was
unjust or that his rights were jeopardized in any way.

2.  It is noted that the former service member successfully completed
training, was promoted to corporal, and that both his commander and unit
first sergeant agreed that he was an excellent Soldier.  Such evidence and
comments is an indication that the former service member was capable of
honorable service and that in spite of the racial and social climate of the
day he had excelled and had been recognized for his accomplishment.  His
honorable service prior to the incident was clearly considered in his
receiving only one year of confinement at hard labor.

3.  Contrary to counsel’s argument, the evidence suggests that the events,
which resulted in the service member’s court-martial, did not occur in the
heat of the moment.  Rather, the evidence indicates that the service member
entered the café with another Soldier to confront the five white Soldiers
and then departed without incident, only to return when their numbers were
greater, at which time, his actions, along with his friends resulted in
injuries and caused damage to a civilian establishment.  There does not
appear to have been any racial motivation in court-martialing the former
service member.  The fact that his confinement was limited to only one year
supports this conclusion.

4.  The applicant’s argument that under current standards her spouse would
not have received the same type of discharge is also not supported by
available evidence. The maximum punishment allowed for the same charge
(riot) today includes a dishonorable discharge.

5.  The former service member’s post service achievements have been noted,
however, they do not outweigh the seriousness of the charge for which he
was convicted, particularly in view of the fact that it occurred in a
civilian establishment owned by a citizen of the host country in which the
former service member was serving.  In this case his post service
accomplishments do not warrant an upgrade of his discharge based on equity.

6.  The former service member’s discharge was executed in accordance with
applicable laws and regulations.  There is no evidence of any error.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JS___  ___RD __  ___CD __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





                                  _______John Slone________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040004052                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050517                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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