RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 October 2007
      DOCKET NUMBER:  AR20070009496


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. David W. Tucker               |     |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, in effect, that his conviction by general court-
martial be overturned and all his rights, privileges, and property be
restored.

2.  The applicant states he was charged and unlawfully detained.  He was
dishonorably discharged for a crime he did not commit.

3.  The applicant provides his Certification of Military Service and
portions of the previous Board action in his case.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The FSM was inducted into the Army on 2 May 1944.

3.  On 14 August 1944, three port companies, composed of about 612 “Negro”
troops, were stationed in the northwest section of Fort Lawton, WA.  They
had been alerted and, on the evening of 14 August 1944, were engaged in the
final preparation for shipment overseas on the following morning.

4.  The 28th Italian Quartermaster Service Unit, consisting of about 206
troops     (prisoners of war who volunteered to serve with the U. S. Army
after Italy became a non-belligerent), was stationed immediately to the
west of the port companies.  The members of the Italian unit were employed
at various activities at or near Fort Lawton.

5.  At about 11:00 p.m. on 14 August 1944, four “Negro” Soldiers were on
their way to their respective barracks.  They were met by members of the
Italian Service Unit.  As the two groups passed, at least one of the
American Soldiers swore at the Italians, and one of them shouted, “Hey,
Italian.”  One of the Italians stopped and turned around.  An American
walked toward the Italian with what appeared to be a knife.  The Italian
struck the American with his fist, knocking him to the ground.  The
Italians then ran to their area, pursued for a short distance by the
Americans, who threw rocks at them.

6.  The American Soldier who had been knocked down was carried to his
barracks and later driven to an installation hospital by military police
(MPs).  A short time thereafter, three groups of Soldiers from the port
companies went into the Italian area.  The number was variously estimated
at between 100 and 200.  The Americans were armed with stones, knives,
shovels, clubs of all sizes and description, and at least one ax.

7.  The quarters of the Italian Service Unit were first attacked by the
throwing of large stones against the buildings and through the windows.
The main force of the attack was directed at the orderly room.  A door
between Room X and R was chopped down with an ax, and a number of windows
were broken.  A number of the American Soldiers entered this building armed
with the ax, knives, clubs, and other instruments and inflicted severe
injuries upon its occupants, which included several [white] American
Soldiers assigned to the Italian Service Unit as interpreters.  Some
Italian soldiers escaped into the woods without injuries.  MPs eventually
broke up the riot about an hour after it started.

8.  The body of one Italian was found at about 6:00 a.m. the following
morning by two MPs, including one of the MPs (Private L___) who took the
injured “Negro” Soldier to the hospital the previous night.  The body was
found hanging from a cable which was part of the obstacle course.  The
members of the port companies (as were most Soldiers stationed at Fort
Lawton) were familiar with this obstacle course.  The cable was about 398
feet by a path down a steep incline over rough terrain from the area of the
riot.  The time of death was estimated as midnight but could have been as
early as 11:00 p.m., 14 August or as late as 1:00 a.m., 15 August.

9.  An autopsy of the body revealed abrasions of the neck; multiple
abrasions of the skin of the anterior (front) surface of both lower
extremities, an old scar on the scalp, and marked plethora (a general term
denoting a red, florid complexion) of the head and neck.  At the trial, the
physician who conducted the autopsy testified that there were no bruises or
any contusions on the body such as would come from a blow on that body.  He
testified that the scratches found could have been obtained from walking
through underbrush or undergrowth.

10.  An Army Inspector General (IG) Department investigation into the riot
was conducted.  The IG report noted that the MP patrol that took the
initially-injured American Soldier to the hospital passed within 100 yards
of the guard house, but they did not stop or enter the guardhouse for the
purpose of warning the Sergeant of the Guard or anyone else of the imminent
riot.  They also chose to take the injured Soldier to the hospital most
distant from the scene of the disturbance, and while at the hospital failed
to telephone any responsible authority of what had taken place or what was
obviously about to take place.

11.  The IG report noted that, at the height of the attack on the Italian
barracks, the Italian who was later found hung leaped out of a window in a
panic.  He was immediately seized upon by five “Negro” Soldiers and was
last seen being dragged toward the woods west of the Italian area.  After
the body was discovered, no photographs were taken of the body while it was
still hanging, and no effort was made to secure fingerprints.  The
installation Provost Marshal placed a piece of cardboard over two foot
prints found where the body was hanging, but no casts were made of those
prints and they were later obliterated.  Orders were given that no troops
would utilize the obstacle course until after a thorough investigation of
that area had been completed.  However, troops did enter the area, both on
15 and on 16 August, before investigators could properly search the area
for evidence.  Orders were also given to immediately repair all of the
damage done by the rioters without regard to the securing of fingerprints,
foot prints, and other material evidence.

12.  The IG report noted that prior to the riot there had been minor
altercations in the post exchange between “Negroes” and Italians, and even
between Italians and white American Soldiers.  Specifically, Private S___,
who acted as bartender at post exchange number 3, testified that on the
Saturday before the riot one white Soldier got up and “…smacked one of the
Italian boys.  He went plumb against a trash can.”  He testified that the
white Soldier was not an MP.  He also testified that the next afternoon the
same white Soldier prevented the Italians from coming into the door to the
post exchange.

13.  The IG report noted that the “conduct of the two MP’s…who first saw
the riot forming, yet failed to take immediate steps toward the quelling of
that disturbance, reflects, if not cowardice, a decided lack of proper
training and a clear violation of the 96th Article of War.  Despite these
facts, neither of these men have been censored nor punished in any way.”

14.  The IG report noted that none of the MPs who quelled the riot could or
would identify a single “Negro” as having participated in the riot although
they were in a fully-lighted orderly room for from 15 to 30 minutes with a
large number of the rioters.  The IG noted that the failure was scarcely
understandable.  Because of that, the investigating officers “cannot help
but believe that the white MP’s had, for some undetermined reason, agreed
amongst themselves not to identify any of the rioters.”

15.  During the IG investigation, one of the Italian witnesses, Mag___, was
asked about a “Negro” MP.  When asked “did they continue to attack you?” he
answered, “A white MP came in and told me to get out of the barracks.  As I
went toward the door I was hit on the leg” [with a club].

16.  During the IG investigation, one of the Italian witnesses, Cat___, was
asked if he saw any “Negro” MPs inside barracks 708 while he was under the
bed.  Cat___ stated he did see a Negro MP, who shined a flashlight and told
Cat___ to “Come on, let’s go.”  Cat___ stated he was happy to see an MP and
crawled out from under the bed.  About the time he got out from under the
bed he was struck by some other “Negro” who was behind him and whom he
(Cat___) did not see.  Cat___ did not mention seeing any white MP.

17.  During the IG investigation, William J___, a “Negro” Soldier,
testified he saw an Italian being chased by a tall MP who had an MP club.
He testified that the MP was chasing the Italians (sic) because “He was
going to bust his (sic) skull.”  He testified that he could not recognize
the MP again if he saw him, but he was sure it was a white MP.  He
testified that he would not recognize the MP’s voice, that the MP “just
come down and some other MP’s (sic) told him to stay and keep the colored
boys from going down and bothering them.”  He testified that the MP said
“he came down here with six other MP’s (sic) and they told him to stay
there.”  He testified that he was sure the MP did not catch the Italian,
and he testified that he did not see any Italians who had been caught by
anyone.

18.  The IG report was later updated to note that court-martial charges
were later brought against the two MPs who first saw the riot forming.
Both were charged under the 96th (general article) Article of War with (1)
neglect to give, without delay, information of a threatening disturbance to
proper authority and (2) failure to use reasonable efforts to prevent
destruction of certain government property.  In addition, Private L___ was
charged under the 96th Article of War for (3) failure to use reasonable
efforts to quell a riot, being armed with a service pistol, and under the
61st (absence without leave) Article of War for two specifications of (4)
failure to repair at a fixed time and place of duty.  Both Soldiers were
acquitted of the charges under the 96th Article of War.  Private L___ was
convicted on the charges under the 61st Article of War.

19.  The IG report was classified “Confidential” and was not given to the
defense prior to or during the trial.  However, the prosecutor was allowed
to use statements at trial and, even after doing so, attempted to limit
what defense counsel was able to read in the statements given to the IG.
Defense counsel repeatedly sought these statements but was denied access by
the trial counsel because the IG report was classified “Confidential.”  The
IG report was reclassified “For Official Use Only” on an unknown date but
apparently a number of years after the incident at Fort Lawton.

20.  The lead defense counsel had 9 days from service of the charges on the
applicant and on 42 other accused to prepare for trial.  He advised the
court at that time that he interviewed 132 witnesses and had not
interviewed some of his clients since the referral of charges.  On the
first day of trial, the defense requested a 4-day continuance, which was
granted by the panel president.

21.  On 18 December 1944, the applicant, a private (grade 7) at the time,
was convicted by a general court-martial, in a joint trial with 42 other
Soldiers and contrary to his pleas, of committing a riot.

22.  Three other Soldiers were convicted of manslaughter (the charge had
been premeditated murder) and committing a riot.  Thirteen Soldiers were
acquitted.

23.  The applicant’s sentence was to be dishonorably discharged, to forfeit
all pay and allowances; and to be confined at hard labor for 1 year.

24.  On 17 October 1945, the applicant was discharged, with a dishonorable
discharge, pursuant to his sentence by court-martial.

25.  In 1949, the Army Board for Correction of Military Records (ABCMR)
denied the applicant’s request for an upgraded discharge. In 1975, the
ABCMR granted the applicant’s request to upgrade his discharge and upgraded
it to general under honorable conditions.  His ABCMR cases indicated that
he had confessed to participating in the riot; however, his confession was
obtained under duress (when he was placed in the stockade after first
denying he had participated in the riot).

26.  The Manual for Courts-Martial, U. S. Army, in effect at the time, did
not require confidential reports to be provided to the defense.

27.  Title 10, U. S. Code, section 1552(f) states that, with respect to
records of courts-martial tried or reviewed under the Uniform Code of
Military Justice, the Board's action may extend only to action on the
sentence of a court-martial for purposes of clemency.

DISCUSSION AND CONCLUSIONS:

1.  Title 10, U. S. Code, section 1552 prohibits the ABCMR from upsetting
the finality of a conviction at a court-martial convened or reviewed under
the Uniform Code of Military Justice.  However, the ABCMR is not so
constrained when reviewing trials convened prior to 4 May 1950 under the
Articles of War.  The ABCMR retains jurisdiction to overturn convictions
under the Articles of War when, in part, an applicant shows that the court-
martial lacked jurisdiction.  A lack of jurisdiction may arise from a
denial of due process in the proceedings amounting to fundamental
unfairness.

2.  Despite limitations (13 days to prepare for the defense of 43
defendants; no access to the IG report), the Record of Trial showed that
the defense team mounted a spirited defense.

3.  Nevertheless, based on several factors it appears that the Army failed
to provide the applicant, and the 43 other Fort Lawton accused, with due
process by the standards in place at the time of their trial.

4.  The applicant and the other Fort Lawton accused were not afforded a
meaningful and full opportunity to exercise their right to counsel.  In
joint trials, each accused had the same rights and privileges that he would
have been afforded if tried separately.  The accused had the right to
conflict-free representation (i.e., a right to an attorney unfettered by
his obligation in representing other clients).  In the setting of this
case, it is unimaginable that two attorneys could fully and freely
represent each accused.  By the very nature of the charge against each
accused – rioting – it is fair to assume that at least some of the clients
had information that, while harmful to them, may have been helpful to
another one of the accused.

5.  While it is not apparent that the defense of the applicant or any one
of the other defendants was hampered by the fact the defense counsel could
not call any of the co-accused as a defense witness, it is inconceivable
that at least some of the accused Soldiers (to include the applicant) were
not prejudiced.  Defense counsel could not call a client to testify as a
witness for any other defendant if doing so would open the client up to
incriminating testimony.  Further, as all 43 Soldiers were tried at once,
it is unlikely that the convening authority would have entertained a
defense request to grant any of the accused immunity to testify on behalf
of any other accused.

6.  The right to prepare for trial is fundamental.  To deny this right is
to deny a fair trial.  In this case, lead defense counsel had 9 days from
the service of charges to prepare for the trial of 43 men, 3 of whom were
also accused of premeditated murder.  Even though defense counsel
requested, and received, a short continuance, it is a stretch to believe
each client received the individualized attention from counsel that the
seriousness of the charges warranted.

7.  Time to prepare for trial is normally not a reviewable issue on appeal
or by the ABCMR unless raised at trial.  However, in the overall context of
this case, defense counsel’s limited time to prepare is a factor the ABCMR
may consider in weighing the overall question of whether the applicant and
his co-accused received a fair trial under the circumstances.

8.  Perhaps the most egregious error occurring in this trial involved the
trial counsel’s access to and use of portions of the IG investigation, a
right denied defense counsel despite his many requests.  Trial counsel
asserted at trial that he had no right to release these documents because
they were classified “Confidential.”  Yet, despite this classification,
trial counsel was able to and did use statements obtained in the
investigation during trial to, among other things, impeach defense
witnesses.

9.  The question is whether the government’s failure to produce the IG
report and witness statements to defense counsel rendered the trial
fundamentally unfair.  The ABCMR must assess whether release of the IG
report was so materially relevant to the charges and the defense of the
Fort Lawton Soldiers that the decision to withhold it deprived defense
counsel of the opportunity to fully prepare for trial.  It appears that it
was relevant, especially when viewed in light of other factors (two defense
counsel for 43 accused and a limited time to prepare) involved in this
case.  Even if it were concluded that the evidence supported the findings
of guilt for the applicant (or any other defendant), such findings would
not be proper since the factors described above, overall, rendered the
trial fundamentally unfair and improper.

10.  The applicant’s conviction should be set aside and all rights,
privileges and property lost as a result of the conviction should be
restored to him.  The applicant was an inductee.  During wartime, Soldiers
are normally retained until the end of the conflict plus 6 months.  As the
Japanese officially surrendered on 2 September 1945, it would further be
equitable to show that the applicant was discharged from active duty in the
rank of private (grade 7) with an honorable discharge on 2 March 1946 with
all due pay and allowances.

BOARD VOTE:

__jns___  __jtm___  __dwt___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by:

     a.  setting aside his 18 December 1944 conviction and restoring to him
all rights, privileges, and property lost as a result of that conviction;

     b.  preparing an appropriate document showing he was discharged from
active duty in the rank of private (grade 7) with an honorable discharge on
          2 March 1946; and

     c.  paying to him (or his estate) all back pay and allowances due as a
result of the above corrections.




                            __John N. Slone_______
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070009496                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20071018                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |105.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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