BOARD DATE:	  6 July 2010

		DOCKET NUMBER:  AR20090016218 


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 reconsideration of his earlier petitions for an upgrade of his dishonorable discharge (DD) through Members of Congress. 

2.  The applicant states while serving in Korea in 1951, he was convicted of a crime he did not commit.  He claims he has been trying to get this wrongful conviction overturned for 10 years.  He states it took 8 years to get his medical records and record of trial and he has undergone two reviews by the Army Board for Correction of Military Records (ABCMR) and the results have always been guilty as charged.  He states he sent his medical records and record of trial to the ABCMR in 2007, which provided proof beyond a shadow of a doubt he could not have possibly committed the crime.  He claims he has been treated like a dog for 10 years and it was his belief every American had rights.  He states it could be the head of the ABCMR is Oriental and possibly from Korea.  

3.  The applicant's new evidence and argument is provided by counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier petitions to the ABCMR requesting an upgrade of his DD in a letter to the staff of the Chairman of the Ways and Means Committee of the United States Congress.  



2.  Counsel states there are many compelling reasons the ABCMR should reconsider the applicant's request not the least of which is the fact there was no consideration given at his court-martial for the obvious effects of the Post Traumatic Stress Disorder (PTSD) resulting from his prior combat service as documented in a doctor's letter, dated 17 May 2005, the applicant provided to the ABCMR.  

3.  Counsel further states another reason the case should be reconsidered is in large part, the applicant's conviction was the result of statements he allegedly made immediately after the shooting incident and on the following morning when he was obviously not in a condition to recall events that had occurred or to relate an accurate account.  

4.  Counsel further refers to a Statement of Errors submitted by the applicant's appointed defense counsel during the court-martial in connection with an appeal submitted to the Board of Review in 1951 and indicates, as this document notes, the statements taken from the applicant could not have been considered voluntary under the law in 1951.  Further, they certainly could not be considered voluntary and admissible in evidence under constitutional law as it has developed since then.  This factor alone, in counsel's opinion, should warrant a very careful review of his conviction which has simply not occurred.  

5.  Counsel further indicates they are exploring the possibility of a post-conviction motion in Federal District Court to raise constitutional issues which are presented in the applicant's case.  However, he is seeking any advice or assistance he can receive from the Member of Congress to which he addresses his letter.  

6.  The following documents are provided in support of the application:

* Congressional Inquiry Packet from the Chairman of the House of Representatives Ways and Means Committee
* Congressional Inquiry Packet from a Senator from Illinois
* Self authored letter from the applicant, dated 15 August 2009
* Counsel letter, dated 24 August 2009
* Office of the Surgeon General (OTSG) Hospital Admission Records for December 1949 and 1950
* Appellate Defense Counsel Assignment of Errors Document, dated 
18 July 1951
* Clinical psychologist letter, dated 17 May 2005



CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2002081133 on 13 May 2003 and in Docket Number AR20050013507 on 13 April 2006.  

2.  The counsel provides new arguments in support of the applicant's previous requests that require reconsideration.  

3.  As stated in the ABCMR Records of Proceeding (ROPs), dated 13 May 2003 and 13 April 2006, the applicant's military records were lost or destroyed in a fire at the National Personnel Records Center (NPRC) in 1973.  The applicant's Record of Trial was signed out of the National Archives by Federal Court on 
2 April 1990, and has never been returned.  These records are not available for review.  

4.  During the original 13 May 2003 review of the applicant's case, the evidence of record and independent evidence submitted by the applicant failed to show the applicant's record was in error or unjust.  It further concluded the applicant's trial by court-martial was warranted by the gravity of the offense charged and that his conviction and discharge were effected in accordance with applicable law and regulation.  It was also determined that the applicant's contentions related to evidentiary and procedural matters that were finally and conclusively adjudicated in the court-martial appellate process and provided no basis to change the characterization of his discharge.  

5.  During the second review of the applicant's case on 13 April 2006, it was determined that the doctor's statement provided by the applicant showed the applicant was currently suffering from PTSD, but it was not sufficiently mitigating to support amending the original 2003 ABCMR proceedings.  Additionally, no evidence was found to indicate the applicant suffered from a disabling physical or mental condition at the time of his court-martial or discharge that would have warranted separation processing through medical channels.  Finally, it was concluded the applicant had failed to submit new evidence or argument that supported the requested relief. 

6.  Counsel provides new arguments concerning the applicant's PTSD, as documented in the psychologist's statement provided to the 2006 Board and the Assignment of Errors document completed by the applicant's appellate counsel in 1951 which provide the basis for this request for reconsideration.  Counsel claims the applicant's PTSD, as documented in the 2005 letter, was given no consideration during the court-martial and the fact his conviction resulted in large part from statements the applicant made at the time which could not have been considered voluntary.  

7.  The assignments of errors document was available to the ABCMR during both prior reviews and the psychologists letter was available to and considered by the Board during the 2006 review.  

8.  As outlined in the 2003 ROP, a Staff Judge Advocate (SJA) legal review of the applicant's court-martial was completed at the time.  The SJA opined that as a general rule of law voluntary intoxication is not an excuse for a crime committed while in that condition.  However, it could be considered as affecting mental capacity to entertain a specific intent where such intent is a necessary element of the crime.  The SJA further stated the applicant's actions of returning to his company, hiding the weapon under his bed, and then moving it to a place of better concealment revealed sufficient mental capacity to entertain the specific intent alleged.  The SJA indicated it was for the court to determine the degree of the applicant's intoxication based on all the evidence before it.  

9.  The SJA further noted there was no error in receiving the applicant's pre-trial statement and it was voluntary and elicited only after he was made aware of the protection afforded by the 24th Article of War.  The SJA opined the prevailing rule, military and civilian, was the drunken condition of an accused when making a confession affects neither the voluntary character nor the admissibility in evidence of the confession unless the drunkenness has induced a condition equivalent to total insanity.  The drunkenness of the applicant at the time of the confession was a matter for consideration by the court to determine what weight and credibility should be given to the confession.  The SJA opined based on the legally sustained findings of guilty the applicant's sentence was legal.  The convening authority approved the findings of guilty and the sentence.  

10.  The SJA further confirmed the U.S. Army Board of Review, after considering many of the "errors" considered by the SJA affirmed the findings of guilty and the sentence.  He further noted the U.S. Court of Military Appeals denied the applicant's petition for a grant of review on 24 October 1951. 

11.  On 8 August 1951, a U.S. Army Board of Review, after considering many of the errors considered by the SJA and presented in the assignment of errors document provided by the applicant's appellate defense counsel affirmed the findings of guilty and the sentence.  

12.  On 24 October 1951, the U.S. Court of Military Appeals denied the applicant's petition for a grant of review.

13.  In the 13 April 2006 review, the Board determined the available evidence failed to show the applicant suffered from a disabling physical or mental condition that impaired his ability to serve or contributed to his misconduct. 

14.  The applicant provides an OTSG Hospital Record that shows he was hospitalized on 1 January 1951 for 5 days and treated for combat exhaustion.  He was released back to duty.  There is no evidence that this condition impaired his judgment or ability to serve.  

15.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552 (10 USC 1552) , the authority under which the ABCMR acts, the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's/counsel's request for reconsideration of his previous petitions to upgrade his discharge has been carefully considered.  However, the evidence and arguments provided are insufficient to grant the requested relief or to amend the previous ABCMR decisions in this case.  The evidence confirms his trial by court-martial was warranted by the gravity of his offense.  His court-martial proceedings to include the appellate process were accomplished in accordance with the applicable law and regulation in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the court-martial process.  

2.  Counsel's argument regarding the validity of statements the applicant made immediately after the shooting incident was fully vetted during his trial by court-martial.  The assignment of errors document prepared by the applicant's appellate counsel clearly shows the errors were addressed by the command's SJA in his review during the appellate process and was considered by the U.S. Army Board of Review prior to the final affirmation of the court-martial findings and sentence.  Finally, it was considered and addressed by the Board during its original review of the case on 13 May 2003.  As a result, absent any new compelling and convincing evidence or argument confirming the applicant's statements were involuntary and/or inadmissible in evidence at his court-martial this argument continues to provide an insufficient evidentiary basis to support granting the requested relief. 

3.  The other significant argument raised by counsel is that the effects of the applicant's PTSD, resulting from his prior combat service, was given no consideration during the applicant's court-martial.  However, the applicant's combat record and his record of treatment for combat exhaustion were part of the record at the time and would have been available to the court-martial panel and to the applicant's defense counsel during his trial.  Absent evidence to the contrary, it must be presumed the court-martial panel examined his entire record of military service, including his combat service and treatment for combat exhaustion, prior to rendering its final guilty finding and resultant sentence.

4.  In addition, his entire military service record would have been fully considered during the appellate process.  Further, given he was returned to duty after receiving treatment for his combat exhaustion, it appears medical authorities at the time did not find his condition unfitting or that it impaired his ability to serve. 

5.  Absent evidence confirming the applicant's PTSD existed or rendered him unfit for service at the time, this factor provides an insufficient evidentiary basis to support a conclusion a PTSD condition diagnosed some 50 years after the fact contributed to the misconduct that led to his court-martial and resulting DD.  

6.  10 USC 1552 prevents the ABCMR from changing or upsetting a finding of guilt by a court-martial for cases tried or reviewed under the Uniform Code of Military Justice (UCMJ).  The UCMJ replaced the Articles of War as the legal authority for establishing and trying offenses under military law.  The UCMJ went into effect on 31 May 1951 and applied to all court-martial processes taken after that; cases tried under the Articles of War prior to 31 May 1951, but as of that date did not have final action by the convening authority, had appellate review conducted under the 1951 version of the Manual for Courts-Martial.  As a result, any case affirmed by the Army Board of Review or the United States Court of Appeals are governed by the limitations under 10 USC 1552 concerning ABCMR actions or findings.  In other words, regardless of the merits of a claim, the ABCMR may not, in the applicant's case, consider matters to overturn the applicant's court-martial conviction.  By law, the ABCMR is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.   

7.  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, the record is in error or unjust.  The applicant and his counsel have failed to submit new evidence or argument that would satisfy this requirement or that would support clemency in this case, or amendment of the previous Board decisions on this matter.  




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x_____  ___x___  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 to amend the decisions of the ABCMR set forth in Docket Number AR2002081133 dated 13 May 2003 and Docket Number AR20050013507 dated 13 April 2006.  



      _______ _   _x______   ___
               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)                                         AR20090016218



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ABCMR Record of Proceedings (cont)                                         AR20090016218


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