BOARD DATE:	  12 February 2015

		DOCKET NUMBER:  AR20140010122 


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, correction of the record of her late husband, a former service member (FSM) by:

* upgrading his dishonorable discharge to an honorable discharge
* changing the reason and authority for his discharge to "expiration of term of service (ETS)"
* crediting him with active service for the period he was in confinement
* restoring his rank to the rank he held at the time of conviction
* entitling him to back pay, leave, mustering out pay (MOP), and other monetary benefits in which he was entitled to

2.  The applicant states:

   a.  The case presented is substantively identical to that already decided by the Secretary of the Army on 26 January 1981, pursuant to Title 10, U.S. Code (USC), section 874(b), regarding a group of Japanese American Soldiers (to which group the FSM was a member) in the matter of Hxxxxxx Nxxxxx, et. al.  

   b.  Her husband was one of the draft resisters who was court-martialed in 1944 at Fort McClellan, AL.  He was court-martialed for refusing to train for combat while his family was incarcerated in a concentration camp.  His group, known as the Detention Barracks (DB) Boys or DB Boys, was sentenced to a dishonorable discharge.  In January 1981, the Army changed the sentences for 11 of the 21 resisters from dishonorable to honorable.  Her husband had already passed away by 1981 which is why his sentence wasn't changed.
   c.  The family learned about the possibility of having his discharge corrected in 1981 when Mr. Pxxx T. Mxxxxxxx had his father-in-law's discharge corrected.  The family did not know they could submit a request since her husband had died in 1974.  It is now imperative that his discharge be corrected to assist her in applying for the aid and attendance pension.

   d.  On 8 December 1981, additional relief was provided by the Army Board for Correction of Military Records (ABCMR) following a hearing to a group of Japanese/American Soldiers (who had already received discharge upgrade relief).  

3.  The applicant provides copies of the following:

* Special Orders Number 80
* Record of Trial and transcript
* WD AGO Form 366 (Supplemental Dishonorable Discharge – Pay Roll)
* FSM's death certificate
* their marriage certificates and license
* General Court-Martial Order Number 8
* Pxxx T. Mxxxxxxx Brief in Support of Application for Secretarial Review of Punitive Discharge Pursuant to Title 10, USC, section 874(b)
* ABCMR Proceedings
* her declaration
* completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers request and statements to the applicant and provides no additional evidence.

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 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's complete military records are not available to the Board for review. A fire destroyed approximately 16 million service members’ records at the National Personnel Records Center (NPRC) in 1973.  It is believed his records were destroyed in that fire.  However, there was sufficient documentation submitted by the applicant for the Board to conduct a fair and impartial review of this case.

3.  The FSM's available military records show he was inducted into the Army of the United States (AUS) on 1 July 1941.

4.  The applicant provided copies of the following:

   a.  Special Orders Number 80, dated 3 April 1944, which show a general court-marital was appointed to meet at Fort McClellan, AL, on 3 April 1944 or soon thereafter.

   b.  Record of Trial, dated 18 April 1944, which shows the FSM, while serving as a member of Company B, 33rd Training Battalion, Infantry Replacement Training Center, Fort McClellan, AL, pursuant to his plea of not guilty, was convicted by a general court-martial of willfully disobeying a lawful command from his superior officer to march to the Field House on or about 20 March 1944. He was sentenced to a dishonorable discharge, a forfeiture of all pay and allowances, and confinement at hard labor for 8 years.  The FSM testified that he did not hear the major give an order at the orderly room.  He did not go to the Field House because he did not know he was supposed to go there.  He states that it was true he had complained about the treatment his 3 sisters received at the Relocation Center.  He did not respond to questions on whether he felt that he should not serve in the Army until something was done to better his sisters' conditions and if he felt at that time he could fight for the country against Japan.  The FSM's counsel contended that the prosecution had failed to show that there was any willful intent to disobey an order on the part of the FSM.

   c.  WD AGO Form 366 (Pay Roll (For Enlisted Men)), dated 10 August 1944, which shows the FSM was dishonorably discharged, credited with 134 days of time lost, and he was not entitled to MOP or travel pay.

   d.  Two marriage certificates and a license which shows her and the FSM were married on 2 August 1949.

   e.  FSM's death certificate which shows he died on 27 April 1974.

   f.  General Court-Martial Order Number 8, dated 26 January 1981 shows the Assistant Secretary of the Army (ASA) (Manpower and Reserve Affairs (M&RA)) ordered that portion of the sentence, dated 10 December 1945, of Private Hxxxxxx Nxxxxx providing for a dishonorable discharge be changed to an honorable discharge and the issuance of an Honorable Discharge Certificate.

5.  The applicant also provides ABCMR Proceedings, dated December 8, 1982 which shows 11 applicants, who were among a group of 43 American Soldiers of Japanese extractions who were assembled in front of the orderly room of Company B, 33rd Training Battalion on 20 March 1944 that the battalion commander had instructed to march to the Field House, applied to the ABCMR for correction to their records by:

	a.  setting aside their convictions by general court-marital in 1944; 

	b.  crediting them with active service for the period they were in confinement; 

	c.  restoring their rank; and

	d.  granting them an honorable discharge due to the ETSs of their enlistment on the date of their actual releases from confinement

		(1)  The proceedings stated the following:

		(a)  In March 1944 there were some 600 Japanese/Americans sent to Fort McClellan for training.  Many of the men were resentful of the transfer and some expressed an unwillingness to take combat training in view of the conditions in which they, or their families, found themselves, and protested the undemocratic action taken by the United States Government in disposing their relatives and themselves simply because they were of Japanese descent.

		(b)  All of the applicants, except for two, were among a group of 43 American Soldiers of Japanese extraction who were assembled in front of the orderly room of Company B, 33rd Training Battalion on 20 March 1944.  The battalion commander instructed a corporal to march that group to the Field House.  The group obeyed the initial commands of the corporal and marched about 55 yards and the group stopped of their own accord.  They were again ordered to march, but none did so.  The battalion commander ordered them to march to the Field House and explained the probable serious consequences of their failure to do so. He then instructed the corporal to take the names of all the men and they all refused to give their names.  The military police were then called and the men were placed under arrest.

		(c)  As of 22 March 1944, there were 106 Japanese/Americans who had been placed in the stockade as a result of alleged failure to properly obey orders after arrival at Fort McClellan.  While in the stockade a lieutenant colonel talked to the group through an interpreter and attempted to explain that it was beyond the capability of the Army officers at that post to resolve the problems of the Relocation Centers.  It was the business of the Army to train them for combat and some statement to that effect was made of "Those who were willing to train for combat were to leave the assembly by the right door and those who were not to leave by the left door."

		(d)  Seventy-eight men left by the right door and 28 went to the left door.  Of the 28 men who went to the left door, 21 were tried and convicted by general courts-martial during April and May 1944 for violation of the 64th Article of War (willfully disobeying the lawful orders of a commissioned officer).

		(e)  Nine of the applicants were in the group of 17 who were tried by general courts-marital for disobeying the orders to march to the Field House.  Each pled not guilty to the offense.  That testimony was essentially that they did not hear the battalion commander give an order to march.  They stopped because the man in front of them stopped.  They were all sentenced to dishonorable discharges, total forfeitures, and confinement at hard labor, ranging from 5 to 30 years.  All sentences in excess of 10 years were reduced to 10 years by the Secretary of War.

		(f)  Each record of trial was reviewed in the Office of The Judge Advocate General and was found legally sufficient to support the sentence.  Several subsequent reviews within the Department found no error in the records of trial and convictions.  However, on 19 November 1945, all of the sentences were reduced by a special clemency action to 3 years (exact dates unknown – service records were apparently destroyed by a fire in the NPRC in 1973).

		(g)  In January 1981, action was taken by the ASA to change so much of the sentence by the general court-martial, pertaining to each of the applicants, to provide for an honorable, rather than dishonorable discharge.

		(h)  Testimony given at the hearing stated that the applicants were released from confinement (parole) during May and June 1946.  It was known that one of the applicants was released on 7 June 1946.  They failed to undergo combat training because no one appeared to listen to their complaints about the manner in which their families were being treated in the Relocation Centers.  They realized that they would be court-martialed, but hoped to have the chance at their trial to bring their grievances to the attention of the authorities.  The Japanese/Americans who did complete the training at Fort McClellan subsequently were assigned to the 442nd Infantry Regiment and served with distinction with that unit in combat in Italy.
		(2)  The Board concluded:

		(a)  From a purely legal standpoint there was no error in the FSM's record of trial by courts-martial.  The evidence clearly established that they did fail to obey the orders of a commissioned officer, as charged, and the Board could find no sound basis for disturbing the finality of their convictions.

		(b)  While the Board could find no basis for setting aside their convictions by the general court-martial, in retrospect it appeared that the sentences imposed were too severe.  The Board recognized that the incidents took place during a time of war; however, it appeared their actions were more in the nature of a protest against the prolonged incarceration of members of their immediate families in Relocation Centers rather than outright refusal to undergo combat training.  They had been frustrated in all prior attempts to free their families.  They apparently chose to bring the plight of their families to the attention of high Government officials through the media of the general courts-martial.

		(c)  The Board noted that there was no record of any lost time, or disciplinary actions taken against them and they had apparently performed their military duties in a satisfactory manner up until the time they were assigned to duty at Fort McClellan.

		(d)  Considering the circumstances surrounding those cases it appeared that it would be appropriate, as a matter of equity and further clemency, to change the records in such a manner so as to provide those individuals with credit for active service during the time they were actually in confinement, for their honorable discharge at the time they were actually released from confinement, that since their records had been destroyed and the exact dates of their released from confinement could not be determined, it would be appropriate to establish the date of discharge as 31 May 1946.

		(3)  The Board recommended all the Department of the Army records of the individuals be corrected by:

		(a)  That on the date of their convictions by the general courts-martial in 1944 the convening authority approved the sentence imposed, but suspended the execution therefore for a period of 2 years; that the sentences were automatically rescinded upon the expiration of 2 years;

		(b)  That the action taken in 1944 to execute the discharges, promulgated by the general courts-marital, are void and of no force, or effect; and

		(c)  That on 31 May 1946 they were honorably discharged due to ETS. 
		(d)  That so much of their application which was in excess of the foregoing be denied.

		(4)  Two members of the Board dissented from the foregoing conclusions and recommendations in that they felt that the applicants' actions in refusing to obey orders were a direct attempt to avoid combat duty; that these individuals had been aware of the conditions existing in the internment camps for over 2 years and had done nothing by way of protest earlier; that the incidents took place during a time of war, were extremely serious violations, and should not be taken lightly; that their willful disobedience of orders came at a time when they know that their combat training would, in all probability, mean assignment to the heroic 442nd which at that time was incurring very high casualties.  The minority believed that the sentences, as modified, were appropriate for the offenses.  They, therefore, recommended that their applications be denied in their entirety.

6.  She further provides Pxxx T. Mxxxxxxx's Brief in Support of Application for Secretarial Review of Punitive Discharge Pursuant to Title 10, USC, section 874(b) the individual submitted on behalf of several Japanese applicant requesting an upgrade of their discharges executed in accordance with the sentence of a general court-martial where "good cause" for such action was shown.

7.  She also provides her Declaration wherein she stated she was married to the FSM, they had 7 children together, and briefed their married life and the FSM's military history during 1944.

8.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to change a court-martial 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 available evidence shows the FSM was inducted into the AUS on 1 July 1941.  On 18 April 1944, while serving as a member of Company B, 33rd Training Battalion, Infantry Replacement Training Center, Fort McClellan, AL, pursuant to his plea of not guilty, he was convicted by a general court-martial of willfully disobeying a lawful command from his superior officer to march to the Field House on or about 20 March 1944.  

2.  The FSM was sentenced to a dishonorable discharge, a forfeiture of all pay and allowances, and confinement at hard labor for 8 years.  The FSM testified that he did not hear the major give an order at the orderly room.  He did not go to the Field House because he did not know he was supposed to go there.  It was true he had complained about the treatment his 3 sisters received at the Relocation Center.

3.  A WD AGO Form 366 (Pay Roll (For Enlisted Men)), dated 10 August 1944, show the FSM was dishonorably discharged, credited with 134 days of time lost, and he was not entitled to MOP or travel pay.  The FSM died on 27 April 1974.

4.  On 26 January 1981, the ASA ordered that portion of the 10 December 1945 sentence of Private Hxxxxxx Nxxxxx (who was one of the Japanese/American Soldiers court-martialed) providing for a dishonorable discharge be changed to an honorable discharge and the issuance of an Honorable Discharge Certificate.

5.  On 8 December 1982, in response to 11 applicants who were among a group of 43 American Soldiers of Japanese extractions who were court-martialed along with the FSM, the ABCMR concluded that:

   a.  Evidence clearly established that they did fail to obey the orders of a commissioned officer, as charged, and the Board could find no sound basis for disturbing the finality of their convictions.  

   b.  Two members (Majority) of the Board dissented from the Board's recommendation, as a matter of equity, to correction of the applicants' records by showing that on the date of their convictions by the general courts-martial in 1944 the convening authority approved the sentence imposed, but suspended the execution therefore for a period of 2 years; that the sentences were automatically rescinded upon the expiration of 2 years; that the action taken in 1944 to execute the discharges, promulgated by the general courts-marital, are void and of no force, or effect; and that on 31 May 1946 they were  honorably discharged due to their ETS.  By minority vote, the Board denied their applications in their entirety.

6.  The ABCMR Proceedings stated in January 1981 the ASA took action to change so much of sentence of by the general court-martial for several Japanese/American Soldiers who were court-martialed between March and April 1944 and provided for an honorable, rather than dishonorable discharge, for them.

7.  Based on the foregoing ASA (M&RA) action, it would be appropriate as a matter of equity to upgrade the FSM's dishonorable discharge to an honorable discharge.  As the exact date of the FSM's release from confinement cannot be determined, it would be appropriate to establish the date of his discharge as 31May 1946.

8.  There is also no evidence his court-martial was unjust or inequitable.  Any redress by this Board of the finality of a court-marital conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the offense and absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency for setting aside his conviction is not warranted in this case.

9.  As also stated in the ABCMR Proceeding, all the sentences of the Japanese/American Soldiers were reduced on 19 November 1945 by a special clemency action to 3 years (exact dates unknown – service records were apparently destroyed by a fire in the NPRC in 1973).  As the FSM's' records were also apparently destroyed in that fire, there is no evidence his sentence was also reduced.  

10.  Regrettably, there is no available evidence and the applicant did not provide sufficient evidence showing an error or injustice was apparent in the FSM's available record.  Therefore, there is insufficient evidence to support correction of the FSM's records by restoring his rank to the rank he held at the time of conviction and entitling him to back pay, leave, MOP, and other monetary benefits.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ___X_____  ___X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

* showing the FSM was honorably discharged on 31 May 1946 by Secretarial Authority
* issuing a Honorable Discharge Certificate for his period of service from 1 July 1941 through 31 May 1946

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to:

* restoring his rank to the rank he held at the time of conviction
* entitling him to back pay, leave, mustering out pay (MOP), and other monetary benefits in which he was entitled to



      _________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)                                         AR20140010122





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ABCMR Record of Proceedings (cont)                                         AR20140010122



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