IN THE CASE OF:	

		BOARD DATE:	  9 December 2008

		DOCKET NUMBER:  AR20080014508 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the 1944 conviction by general court-martial of his deceased father, a former service member (FSM), be overturned and all his rights, privileges, and property be restored; and that his dishonorable discharge be voided and his records be corrected to show he continued to serve on active duty until his scheduled expiration of term of service with issuance of an honorable discharge that date.

2.  The applicant states the FSM was not afforded due process of law; his counsel was denied access to all evidence; and he was not provided with adequate counsel, making the trial improper and unfair.
 
3.  The applicant provides the FSM’s death certificate and his birth certificate.

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 3 January 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 damages done by the rioters without regard to the securing of fingerprints, foot prints, and other material evidence.  

12.  The IG report noted that, previous to the riot, there had been minor altercations in the post exchange between “Negroes” and Italians, and even between Italians and white American Soldiers.  It 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.”

13.  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.”

14.  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. 

15.  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.

16.  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 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 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.

17.  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.

18.  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.

19.  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.

20.  On 18 December 1944, the FSM, 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.    

21.  Three Soldiers were convicted of an additional charge of manslaughter.  Thirteen Soldiers were acquitted.

22.  The FSM’s sentence was to be dishonorably discharged, to forfeit all pay and allowances, and to be confined at hard labor for 10 years.

23.  On 23 April 1945, the Board of Review examined the FSM’s record of trial and held the trial to be legally sufficient to support the sentence.

24.  On 12 October 1945, while in confinement, the FSM was convicted, contrary to his plea, of committing an assault upon another general prisoner by cutting him on the body with a dangerous weapon, to wit, a knife.  On 25 October 1945, the approval authority approved his sentence of confinement at hard labor for     3 years.  

25.  On 29 July 1946, so much of the FSM's aggregate sentence to confinement (i.e., 13 years) as was in excess of five years was remitted by direction of the President.  This would have meant his dishonorable discharge would have been executed on or about 18 December 1949.

26.  On 15 January 1948, a Classification Board's recommendation of home parole for the FSM was approved.

27.  The FSM's separation document is not available.

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

29.  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.  

30.  The National Defense Authorization Act of Fiscal Year 2009 amended Title 10, U. S. Code, section 1552 by adding subsection (c)(4):

"If the correction of military records under this section involves setting aside a conviction by court-martial, the payment of a claim… shall include interest at a rate to be determined by the Secretary concerned, unless the Secretary determines that the payment of interest is inappropriate under the circumstances.  If the payment of the claim is to include interest, the interest shall be calculated on an annual basis, and compounded, using the amount of the lost pay, allowances, compensation, emoluments, or other pecuniary benefits involved, and the amount of any fine or forfeiture paid, beginning from the date of the conviction through the date on which payments made."

31.  The above amendment applies with respect to any sentence of a court-martial set aside by a Corrections Board on or after 1 October 2007, when the Corrections Board includes an order or recommendation for the payment of a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or for the repayment of a fine or forfeiture, that arose as a result of the conviction.



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 from the FSM's 1944 court-martial showed that the defense team mounted a spirited defense.  

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

4.  The FSM 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 FSM 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 FSM) 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 FSM 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 FSM (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 FSM’s 1944 conviction should be set aside and all rights, privileges, and property lost as a result of his 1944 conviction should be restored to him.  

11.  The FSM was then, however, convicted by a general court-martial of committing an assault while he was in confinement.  

12.  The FSM's records should be corrected to restore to him all rights, privileges, and property lost from the date of his 18 December 1944 conviction through       24 October 1945, the day prior to the approval of his October 1945 conviction by general court-martial.

13.  On 29 July 1946, so much of the FSM's aggregate sentence to confinement (i.e., 13 years) as was in excess of five years was remitted by direction of the President.  

14.  Five years is about 38 percent of the FSM's aggregate sentence to confinement of 13 years.  Thirteen months is about 38 percent of the FSM's      25 October 1945 sentence to confinement of 3 years.  

15.  Taken proportionally, the above remission of the FSM's 25 October 1945 sentence to confinement would have meant his sentence would have ended on 24 November 1946.  Since he did not receive a punitive discharge from his October 1945 general court-martial, it would now be equitable to show that he was discharged in the rank of private (grade 7) with an honorable discharge on 24 November 1946.

16.  Further, the FSM's estate should be paid all due pay and allowances that would have been due the FSM in accordance with Title 10, U. S. Code, section 1552(c)(4) from 18 December 1944 through 24 October 1945 and again effective from his honorable discharge date of 24 November 1946.

BOARD VOTE:

___X_____  ___X_____  ___X_____  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 from the date of his 18 December 1944 conviction through 24 October 1945; 

     b.  preparing an appropriate document showing he was discharged in the rank of private (grade 7) with an honorable discharge on 24 November 1946; and

     c.  paying to his estate all back pay and allowances due as a result of the above corrections in accordance with Title 10, U. S. Code, section 1552(c)(4) from 18 December 1944 through 24 October 1945 and again effective from his honorable discharge date of 24 November 1946.




      ______XXX_ _   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080014508





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080014508



9


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1