DEPARTMENT OF TRANSPORTATION
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for the Correction of
the Coast Guard Record of:
BCMR Docket No. 1998-087
FINAL DECISION ON RECONSIDERATION
ANDREWS, Attorney-Advisor:
This is a proceeding upon reconsideration, conducted under the provisions of 10
U.S.C. § 1552, 14 U.S.C. § 425, and 33 C.F.R. § 52.67. The final decision on the original
proceeding in this case, BCMR Docket No. 373-91, was issued by the Board on July 30,
1992. The application for reconsideration was filed on March 2, 1998, and completed on
June 23, 1999, upon receipt of copies of the applicant’s military records.
This recommended final decision on reconsideration, dated March 20, 2001, is
signed by two of the three duly appointed members who were designated to serve as
the Board in this case. The third member of the Board has submitted a dissenting
opinion.
TABLE OF CONTENTS
INTRODUCTION ...................................................................................................................................................... 5
RELIEF REQUESTED ............................................................................................................................................ 5
FINAL DECISION IN BCMR DOCKET NO. 373-91 ............................................................................................. 5
PROCEDURE UPON RECONSIDERATION ........................................................................................................ 6
APPLICANT’S INITIAL ALLEGATIONS ............................................................................................................. 7
ALLEGATIONS OF FACT ..................................................................................................................................... 7
APPLICANT’S LEGAL ARGUMENTS ............................................................................................................... 10
Timeliness .......................................................................................................................................................... 10
Self-Defense ....................................................................................................................................................... 10
Due Process....................................................................................................................................................... 10
Pardon ............................................................................................................................................................... 12
SUMMARY OF THE EVIDENCE ......................................................................................................................... 13
APPLICANT’S MILITARY RECORD ................................................................................................................. 13
LOG OF THE U.S.S. XXXXXXX ............................................................................................................................. 14
STATEMENTS IN THE 194X F.B.I. REPORT ..................................................................................................... 15
194x Statement of the Applicant ........................................................................................................................ 15
194x Statement of J.M. ...................................................................................................................................... 16
194x Statement of R.W. ...................................................................................................................................... 17
194x Statement of J.C. ....................................................................................................................................... 19
194x Statement of A.A. ...................................................................................................................................... 19
194x Statement of F.Z. ....................................................................................................................................... 19
194x Statement of F.W. ...................................................................................................................................... 20
194x Statement of L.N. ...................................................................................................................................... 20
194x Statement of R.C. ...................................................................................................................................... 20
194x Statement of N.S. ....................................................................................................................................... 21
194x Statement of R.D. ...................................................................................................................................... 21
194x Statement of R.A. ...................................................................................................................................... 22
194x Statement of P.V. ...................................................................................................................................... 22
194x Statement of H.R. ...................................................................................................................................... 23
194x Statement of P.B. ...................................................................................................................................... 23
194x Statement of B.C. ...................................................................................................................................... 23
194x Statement of E.G. ...................................................................................................................................... 23
194x Statement of Ensign R.R., Officer of the Day ............................................................................................ 24
194x Statement of W.M. ..................................................................................................................................... 24
194x Statement of LCDR C.S., Commanding Officer of the U.S.S. Xxxxxxx ................................................... 24
194x Statement of the Deputy U.S. Marshal ...................................................................................................... 26
MEDICAL AND AUTOPSY REPORTS ............................................................................................................... 26
Report of the Autopsy on L.S. by Dr. A.N., Coroner ......................................................................................... 26
Report of the Ship’s Doctor to the F.B.I. Concerning L.S.’s Wounds ............................................................... 26
Report of the Ship’s Doctor to the F.B.I. Concerning the Applicant’s Injuries ................................................. 26
Applicant’s Medical Records ............................................................................................................................ 28
Medical Opinion on Applicant’s Physical Examination by the Ship’s Doctor .................................................. 28
COURT DOCUMENTS......................................................................................................................................... 28
1951 BOARD OF REVIEW, DISCHARGES AND DISMISSALS ....................................................................... 32
RECENT AFFIDAVITS SUBMITTED BY THE APPLICANT ........................................................................... 34
1996 Statement of N.S. ...................................................................................................................................... 34
1996 Statement of J.M. ...................................................................................................................................... 35
1996 Statement of L.B. ...................................................................................................................................... 35
1996 Statement of M.Z. ...................................................................................................................................... 35
1996 Statement of R.S. ....................................................................................................................................... 36
1996 Statement of H.R. ...................................................................................................................................... 36
1996 Statement of W.R. ..................................................................................................................................... 36
1996 Statement of R.R. ...................................................................................................................................... 37
1996 Statement of R.E. ...................................................................................................................................... 37
1996 Statement of A.P. ...................................................................................................................................... 37
1996 Statement of W.D. ..................................................................................................................................... 37
1996 Statement of P.V. ...................................................................................................................................... 38
1996 Statement of Xxxxx Attorney on Territorial Judicial Process ................................................................... 38
2000 Statement of J.P., a WWII Navy Veteran .................................................................................................. 38
RECENT AFFIDAVITS SUBMITTED BY THE COAST GUARD ..................................................................... 39
1999 Statement of R.B. ...................................................................................................................................... 39
1999 Statement of Ensign R.R., the Officer of the Day ...................................................................................... 39
1999 Statement of P.M. ..................................................................................................................................... 40
AUDIOTAPES SUBMITTED BY THE APPLICANT .......................................................................................... 40
Audiotape of Interview with L.N. ....................................................................................................................... 40
Audiotape of First Interview with F.R. .............................................................................................................. 41
Audiotape of Second Interview with F.R. .......................................................................................................... 41
Audiotape of Interview with the Widow of H.B. ................................................................................................ 41
Audiotape of Interview with R.O. ...................................................................................................................... 42
Audiotape of Interview with A.A. ....................................................................................................................... 42
Audiotape of Interview with P.M. ...................................................................................................................... 42
Audiotape of Interview with R.Y. ....................................................................................................................... 43
Audiotape of First Interview with R.E. .............................................................................................................. 43
Audiotape of Second Interview with R.E. .......................................................................................................... 43
Audiotape of Interview with H.M. ..................................................................................................................... 43
Audiotape of Interview with R.B. ....................................................................................................................... 44
NEWSPAPER ARTICLES .................................................................................................................................... 44
Account of Coroner’s Inquest in the Xxxxxxx Xxxxxx .................................................................................... 44
Account of Coroner’s Inquest in the Xxxx Xxxxx Xxxxx ................................................................................ 45
Death Penalty Research Article ........................................................................................................................ 46
CORRESPONDENCE ........................................................................................................................................... 46
Letter of the Deputy Chief of the Coast Guard’s Congressional Affairs Staff ................................................... 46
Unavailability of Grand Jury Proceedings ....................................................................................................... 46
GOVERNOR’S PARDON ..................................................................................................................................... 47
VIEWS OF THE COAST GUARD ......................................................................................................................... 48
NO JURISDICTION TO COURT-MARTIAL ...................................................................................................... 49
PARDON HAS NO LEGAL EFFECT ON THE DISCHARGE ............................................................................ 49
DOCTRINE OF LACHES SHOULD BAR CLAIM .............................................................................................. 50
UNDESIRABLE DISCHARGE FULLY JUSTIFIED ........................................................................................... 51
EVIDENCE DISPROVES SELF-DEFENSE ........................................................................................................ 52
VOLUNTARY INTOXICATION BARS DEFENSE OF SELF-DEFENSE ......................................................... 53
APPLICANT’S RESPONSE TO THE COAST GUARD’S ADVISORY OPINION ......................................... 54
ALLEGATIONS CONCERNING THE ORIGINS OF THE FIGHT ..................................................................... 54
ALLEGATIONS CONCERNING THE END OF THE FIGHT ............................................................................. 56
ALLEGATIONS CONCERNING THE MEDICAL EVIDENCE ......................................................................... 57
ALLEGATIONS CONCERNING THE AFTERMATH OF THE FIGHT ............................................................. 58
ALLEGATIONS CONCERNING THE INVESTIGATION ................................................................................. 58
ALLEGATIONS CONCERNING THE 194X COURT-MARTIAL ...................................................................... 59
ALLEGATIONS CONCERNING THE NAVY .................................................................................................... 60
ARGUMENTS CONCERNING THE PARDON .................................................................................................. 60
ARGUMENTS CONCERNING THE DOCTRINE OF LACHES ......................................................................... 60
ARGUMENTS CONCERNING DUE PROCESS ................................................................................................. 60
COAST GUARD’S SUPPLEMENTAL RESPONSE ............................................................................................ 61
APPLICANT’S FINAL RESPONSE ...................................................................................................................... 62
SUMMARY OF APPLICABLE LAW.................................................................................................................... 63
BCMR STATUTES, REGULATIONS, AND POLICIES ..................................................................................... 63
JURISDICTION OVER STABBING .................................................................................................................... 63
The Articles of War............................................................................................................................................ 63
Articles for the Government of the United States Navy 1930 (2d ed. 1944) ...................................................... 64
Coast Guard Regulations—Jurisdiction ............................................................................................................ 64
Navy Regulations—Jurisdiction ........................................................................................................................ 65
CHARACTER OF DISCHARGE .......................................................................................................................... 66
194x Coast Guard Regulations—Discharge ..................................................................................................... 66
2001 Coast Guard Regulations—Discharge ..................................................................................................... 66
CRIMINAL LAW .................................................................................................................................................. 67
1933 Compiled Laws of Xxxxx .......................................................................................................................... 67
Modern Criminal Law ....................................................................................................................................... 68
Case Law—Self-Defense ................................................................................................................................... 70
CRIMINAL PROCEDURE ................................................................................................................................... 72
1933 Compiled Laws of Xxxxx .......................................................................................................................... 72
Rules of Court .................................................................................................................................................... 73
DUE PROCESS LAW ........................................................................................................................................... 73
Grand Juries ...................................................................................................................................................... 73
Effective Counsel ............................................................................................................................................... 74
PARDON ............................................................................................................................................................... 75
Governor’s Jurisdiction .................................................................................................................................... 75
Legal Effect of Pardon ...................................................................................................................................... 76
Effect of Letter by Coast Guard Congressional Affairs Staff ............................................................................ 77
FINDINGS AND CONCLUSIONS ......................................................................................................................... 79
FINDINGS OF FACT ............................................................................................................................................ 80
Events in Xxxxxxx, Xxxxx, on Friday, October 26, 194x ................................................................................... 80
The Onset of the Fight on the U.S.S. Xxxxxxx ................................................................................................. 82
The Break in the Fight on the U.S.S. Xxxxxxx ................................................................................................. 83
The End of the Fight on the U.S.S. Xxxxxxx .................................................................................................... 85
Reliability of the Evidence ................................................................................................................................. 89
The Role of Racism in the Fight ........................................................................................................................ 94
The Prosecution of the Applicant ...................................................................................................................... 95
FINDINGS OF LAW ............................................................................................................................................. 97
Doctrine of Laches ............................................................................................................................................ 97
Jurisdiction over the Stabbing ........................................................................................................................... 98
Self-Defense ..................................................................................................................................................... 100
Due Process—Grand Jury ............................................................................................................................... 104
Due Process—Right to Counsel ...................................................................................................................... 104
Due Process—Right to Present and Confront Witnesses ................................................................................ 105
Effect of Pardon .............................................................................................................................................. 106
Effect of the Letter of the Deputy Chief of the Congressional Affairs Staff ..................................................... 107
Grounds for Discharge .................................................................................................................................... 108
CONCLUSION .................................................................................................................................................... 109
ORDER .................................................................................................................................................................... 110
APPENDIX A: EXCERPTS OF STATEMENTS IN 194x F.B.I. REPORT………………………..A-1
APPENDIX B: EXCERPTS OF STATEMENTS SUBMITTED BY THE APPLICANT………..B-1
APPENDIX C: EXCERPTS OF STATEMENTS SUBMITTED BY THE COAST GUARD….C-1
APPENDIX D: EXCERPTS OF MEDICAL AND AUTOPSY REPORTS……………………….D-1
INTRODUCTION
RELIEF REQUESTED
The applicant, a fireman first class (FN1) on active duty in the Coast Guard
Reserve during and after World War II, asked the Board to reconsider its decision in
BCMR Docket No. 373-91 denying his request to upgrade the character of his discharge
from undesirable to honorable. He served in the Coast Guard from August 18, 194x,
until April 27, 194x, when he was discharged after having been convicted of man-
slaughter in the U.S. District Court for the Territory of Xxxxx and sentenced to five
years in a federal penitentiary.
FINAL DECISION IN BCMR DOCKET NO. 373-91
In the applicant’s original case before the BCMR, filed on August 29, 1991, he
alleged that he had been a victim of racial discrimination. He alleged that he “was
charged with manslaughter but [he] never received a trial or had the chance to defend
[him]self.”
The applicant did not provide any further information or submit any evidence to
support these allegations. He stated that he had not previously applied to the BCMR
for relief because he “did not know that [he] could appeal prior decision due to hospi-
talization.”
In his advisory opinion for the original application, the Chief Counsel of the
Coast Guard explained that the applicant had received an undesirable discharge for
misconduct after pleading guilty to manslaughter in February 194x and being sentenced
to five years in prison. The Chief Counsel alleged that the applicant had previously
been convicted by summary court-martial for an earlier assault with a dangerous
weapon in 194x. The Chief Counsel further alleged that, in 1951, the Secretary of the
Treasury had approved a decision of the Coast Guard Board of Review, Discharges, and
Dismissals (the predecessor to the Discharge Review Board), which had “concluded
that Applicant’s discharge was legal, proper, just, and equitable under applicable stan-
dards of Coast Guard and naval law and discipline.”
On July 30, 1992, the BCMR denied the applicant’s application for untimeliness
and lack of proof, because the passage of time had severely hindered the Coast Guard’s
ability to investigate the case and the applicant had submitted no evidence in support of
his allegations.
On September 15, 1992, the applicant submitted further evidence and allegations.
He explained that one night, after dancing with a white woman at a bar, he returned to
his ship, reported that a group of southern white members were out to get him, and
went to his bunk. He then “received the beating of [his] life” and his vertebra was
cracked. He alleged that during his subsequent prison term, xxxxxxxx infected his
spine through the crack, and he later lost hearing in one ear due to his treatment for
xxxxxxxx.
The applicant submitted copies of a letter from a doctor dated January 11, 1972,
stating that the applicant had undergone a spinal fusion for xxxxxxxx, and a letter from
the New York League for the Hard of Hearing dated September 16, 1982, stating that
the applicant should be excused from jury duty due to his hearing loss. He also
submitted copies of a page from his Coast Guard medical records showing that he had
been treated for Xxxxx throughout his time in service and a 194x letter informing him
that he had been turned down for National Service life insurance because of Xxxxx and
albumin in his urine.
On September 24, 1992, the BCMR informed the applicant that his recent submis-
sions had not met the standard for reconsideration set out in 33 C.F.R. § 52.67(b). There-
fore, his case would not be reconsidered.
PROCEDURE UPON RECONSIDERATION
On March 2, 1998, the applicant filed an application for reconsideration. In light
of the substantial new evidence submitted by the applicant and his 1997 pardon by the
Governor of Xxxxx, the Chairman of the BCMR docketed the case on June 22, 1998, and
waived the statute of limitations under 33 C.F.R. § 52.67(e). The BCMR then ordered
the applicant’s military record from the National Personnel Records Center (NPRC), in
accordance with the requirements of 33 C.F.R. § 52.21(c)(2). However, despite numer-
ous requests, the NPRC never found the applicant’s official military records.
On June 23, 1999, the BCMR received from the applicant’s attorney of record
photocopies of many of the applicant’s military records. Therefore, the Chairman
determined that his application was complete under 33 C.F.R. § 52.21(c). On June 30,
1999, the Chief Counsel of the Coast Guard submitted his advisory opinion in accor-
dance with 33 C.F.R. § 52.82. On July 1, 1999, that recommendation was sent to the
applicant and his attorney of record with an invitation to respond within 15 days, in
accordance with 33 C.F.R. § 52.82(d).
On July 16, 1999, the applicant’s attorney requested an extension of the time to
respond to the advisory opinion until August 30, 1999, which the BCMR granted. On
August 27, 1999, he wrote to the BCMR requesting a further extension of 60 days,
through October 29, 1999, which was granted. On November 1, 1999, he wrote to the
BCMR requesting a further extension of 45 days, through December 13, 1999, which
was granted. On December 9, 1999, he wrote to the BCMR requesting a further exten-
sion of one month, through January 13, 2000, which was granted. On January 12, 2000,
he requested a further extension of one week, through January 20, 2000, which was
granted.
On January 27, 2000, the BCMR received the applicant’s response to the Chief
Counsel’s advisory opinion. Because the response included a substantial amount of
new evidence, a copy was forwarded to the Chief Counsel of the Coast Guard for
review, in accordance with 33 C.F.R. § 52.82(a), with a request that he respond within 90
days. On May 5, 2000, the BCMR received the Chief Counsel’s supplemental response.
On May 10, 2000, a copy of the supplemental response was sent to the applicant’s attor-
ney with an invitation to respond with 15 days, in accordance with 33 C.F.R. § 52.82(d).
On May 19, 2000, the applicant’s attorney requested an extension of 30 days, which was
granted. On June 23, 2000, he requested a further extension of three weeks, through
July 15, 2000, which was granted. On July 19, 2000, the BCMR received his response,
which included a new affidavit, to the Chief Counsel’s supplemental response. The
applicant’s final response was forwarded to the Chief Counsel’s office not for comment
but for informational purposes only.
APPLICANT’S INITIAL ALLEGATIONS
ALLEGATIONS OF FACT
In his application for reconsideration, the applicant alleged that his unjust con-
viction for manslaughter was the sole basis for his undesirable discharge in 194x. He
alleged that the Governor of Xxxxx had granted him “a full and unconditional pardon”
on November 26, 1997, and thereby vacated his conviction. Therefore, he alleged, the
BCMR should upgrade his undesirable discharge to an honorable discharge.
The applicant alleged that in October 194x, he was one of four black members of
a 150-member crew aboard the U.S.S. Xxxxxxx. He alleged that many of the crew were
racist and would refer to him and other black sailors with racial slurs.
On the night of Friday, October 26, 194x, the applicant alleged, the Xxxxxxx was
moored at Xxxxxxx in the Territory of Xxxxx, and the starboard watch, of which he was
a member, was granted liberty until midnight. He and J.M., a black sonarman, went to
a cocktail lounge, where the applicant danced with several women, some of whom were
white. The applicant alleged that, while he was dancing with a woman who was either
white or Native American, several of his shipmates approached them. A seaman first
class from Oklahoma, L.S., asked the woman to dance with him, but she declined.
Heated words were exchanged, and L.S. and another shipmate, R.W. from Texas,
threatened to “do him up like they do in Texas and Oklahoma.” A friend advised the
applicant and J.M. to leave the lounge.
The applicant alleged that he returned to the Xxxxxxx before midnight, went to
the bridge, and told an officer that he had been threatened by L.S. and others. The offi-
cer told him to go to his bunk. Several of his shipmates returned to the ship from the
lounge around midnight and began looking for him and making threats. The applicant
was discovered and chased by L.S. He ran to his bunk, where he was cornered. He
alleged that L.S., who was much bigger than he, then began to beat him viciously. The
applicant alleged that he began to feel an incredible amount of pain, especially in his
back, and nearly lost consciousness. As a result, he fell to his knees. L.S. began kicking
him, so he reached into his foot locker and grabbed a knife with which to defend him-
self. He alleged that he stabbed L.S. to save his own life when “confronted with a
deadly force.”1
The foregoing allegations appear in the applicant’s brief and are apparently
based on recent statements of fellow crewmembers collected by his counsel. In 1996,
the applicant signed an affidavit2 containing the following statement, which describes
the stabbing incident somewhat differently:
… I was lying in my bunk when I looked up and saw between five and ten men sur-
rounding me. One of the men grabbed me from behind and had me in a choke hold. At
the same time I felt a knee jam into my back and I felt an incredible amount of pain. I felt
that my back had been cracked. I was also being severely beaten by the others and was
trying my best to escape the beating. I was kicked and punched repeatedly by the men.
No one ever tried to help me. As I was being beaten, I began to lose consciousness and I
remember blacking out for a time. When I regained consciousness, I crawled up a ladder
to the deck and sought the protection of the officers. They told me that I had killed [L.S.].
In his brief, the applicant alleged that, after the stabbing, many of the crew began
to punch and kick him until the officer of the deck, who was armed, stopped them and
escorted the applicant out of the compartment. On his way out, the applicant alleged,
he was struck in the back with a fire extinguisher, which cracked a vertebra. Soon
afterwards, the ship’s lights were turned off in an attempt to calm the crew. The appli-
cant was guarded until 1:20 a.m., when he was placed in the custody of a federal mar-
shal on shore.
The next day, Sunday, October 28, 194x, the remaining black sailors were also
removed from the Xxxxxxx for their own safety because of the racist tensions among the
1 One of the crewmembers, P.V., provided a very different account of these events in a 1995 affidavit (see
page 32). The applicant alleged that P.V.’s 1995 affidavit differed greatly from what P.V. told the F.B.I. in
194x and that P.V. disavowed and denied signing the 1995 affidavit when he learned that his 194x
statements to the F.B.I. had been found.
2 The affidavit is excerpted in Appendix B of this Final Decision on Reconsideration.
crew. They too were placed in the custody of the marshal even though they had not
participated in the incident. However, the applicant alleged, even in the Xxxxxxx jail,
they were not safe because some of the crew later aimed one of the ship’s three-inch
guns at the jail intending to blow it up but were stopped by an officer. The Xxxxxxx, the
applicant alleged, never again had black crewmembers.
On Monday, October 29, 194x, a coroner’s inquest was held in Xxxxxxx. On
October 30th, the applicant was charged with first-degree murder, arraigned, and held
without bail. He was soon transferred to Xxxxxxx. The Xxxxxxx also went to Xxxxxxx
but soon set sail for China, leaving all its black crewmembers behind and taking all but
six of the witnesses with it. The applicant alleged that many sailors failed to tell the
authorities what they knew because they were afraid of revealing their involvement, of
incurring the wrath of their racist shipmates, and of being left behind for a lengthy stay
in Xxxxx.
Because no grand jury was scheduled to be convened in Xxxxxxx until October
194x, the applicant agreed to be sent to Xxxxx to be tried in January. On January 26,
194x, the applicant was indicted for second-degree murder in Xxxxx. He was arraigned
on January 29th. On February 1, 194x, the applicant alleged, a plea of not guilty was
entered on his behalf by his assigned counsel, M.E.M., whom he had never met. Trial
was set for one week later, February 8, 194x. On that day, it was reset for February 13th.
On February 13, 194x, the applicant alleged, M.E.M. entered a plea of guilty to
the charge of manslaughter on his behalf without ever having consulted the applicant.
The applicant alleged that he first met M.E.M. later that day. “He told me that my case
had been taken care of and that he had made a plea of guilty to manslaughter on my
behalf and I was going to serve a five year sentence. He told me that this was better
than the twenty years I would have gotten for murder. I never gave him permission to
make a plea on my behalf.” For years, the applicant alleged, he believed that he had not
been allowed to appear in court because his clothes were still on the Xxxxxxx.
On February 18, 194x, the applicant was sentenced to five years in a federal peni-
tentiary. He alleged that, while serving those years in prison, he contracted xxxxxxxx.
Treatment for the xxxxxxxx, he alleged, later rendered him almost completely deaf. He
alleged that he also had to undergo spinal fusion due to the back injury he had received
when he was beaten on the Xxxxxxx. The applicant alleged that because of his
undesirable discharge, he received no veterans’ benefits for these ailments.
The applicant alleged that in 1951, he appealed his discharge to the Discharge
Review Board, but relief was denied.
The applicant further alleged that in the intervening 50 years, he “has lived an
exemplary life” and “has had no further encounters with the criminal justice system.
He has been neither charged with, nor accused of, any further crimes.” From 1955 to
1971, he worked in an umbrella factory. From 1971 until he retired in 1985, he worked
as a bookkeeper at a bank.
APPLICANT’S LEGAL ARGUMENTS
Timeliness
The applicant alleged that his application should not be barred by the doctrine of
laches because he applied promptly after his pardon in 1997. Furthermore, the pardon
and his application to the BCMR are based upon evidence that was not previously
accessible to him. Therefore, under Hirabayashi v. United States, 828 F.2d 595 (9th Cir.
1987), and Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984), the doctrine of
laches should not apply. The applicant argued that the evidence was not accessible
because it came to light only after an investigation that consisted of placing more than
1,000 phone calls to all 50 states; hiring two private investigators to locate witnesses;
locating and retrieving old military records; and acquiring the aid of the Solicitor Gen-
eral of the United States in obtaining old files of the Federal Bureau of Investigation
(F.B.I.). The applicant argued that, like the plaintiff in Hirabayashi, he could not be
faulted for not uncovering this information on his own. Therefore, he argued, the
Board should waive its statute of limitations.
Self-Defense
The applicant alleged that he when he stabbed L.S., he was acting in self-defense
against a deadly force. He alleged that his actions met the definition of self-defense
under both statutory law and case law.3 He alleged that 24 witnesses have provided
testimony proving that he had good reason to fear for his life and that he acted in self-
defense when he stabbed L.S. He also alleged that the medical evidence supports his
allegation that he was being viciously beaten when he stabbed L.S.
Due Process
The applicant alleged that, because the Coast Guard removed most of the wit-
nesses to the incident when the Xxxxxxx sailed off to China, he was “deprived of his
right to a fair trial, under the Due Process Clause of the United States Constitution. His
ability to prepare a defense based on eyewitness testimony was abolished.” The appli-
cant alleged that, even if his attorney had requested a continuance, he could not have
found the witnesses because the Xxxxxxx was constantly on the move in exotic locales.
Moreover, since the war was over, sailors were being discharged and deposited at many
different ports along the way.
3 XXXXX STAT. § 11.81.335; Owens v. United States, 130 F. 279, 281 (Ct. App. 1904).
Furthermore, the applicant argued, he was denied the right to effective counsel
because his attorney was not appointed until his arraignment a few days before the trial
date, could not gather evidence from absent witnesses, did not consult him before the
trial date, and entered a guilty plea without his consent.
The applicant argued that the court transcripts that indicate his presence at the
arraignment and trial “are so formulaic and pro-forma that they are unconvincing as a
means of establishing that [the applicant] was in court.” The reliability of the court
transcripts cannot be presumed, he argued, because three of the seven sailors named as
witnesses before the grand jury have since stated that they did not testify or cannot
recall testifying before the grand jury. (Of the remaining four sailors, three are deceased
and one was not located.) Therefore, the presumption of regularity accorded court
documents should not apply in this case, the applicant argued. The applicant also
argued that further doubt is cast on the reliability of the proceedings because the docu-
ments indicate he pled guilty just minutes before his trial was to begin, yet two of the
witnesses stated that they never spoke with the prosecutor.
Thus, the applicant alleged, he “was denied the opportunity to prepare a defense
as guaranteed and proscribed [sic] by the land mark case of Powell v. Alabama, 287 U.S.
45 (1932).” He further alleged that, had he been permitted to prepare a proper defense,
the jury would have found that he acted in self-defense.
The applicant argued that, even if one assumes that he did plead guilty, the plea
cannot be considered a waiver of his right to trial because the trial he was offered was
not constitutionally valid: it did not include the right to present the testimony of the
witnesses because the witnesses were unavailable. The applicant argued that “[b]y
pleading guilty, [he] was doing nothing more than acknowledging the loss of rights that
had already been effectively denied.” As the Court held in Powell v. Alabama, “[i]t is
vain to give the accused his day in court, with no opportunity to prepare for it, or to
guarantee him counsel without giving the latter any opportunity to acquaint himself
with the facts … of the case.”4 Furthermore, he argued, because the grand jury wit-
nesses apparently never actually appeared before the grand jury, any “plea of guilty to
a charge stemming from such a defective indictment” should be considered void.
The applicant also argued that the Coast Guard should have retained jurisdiction
over his case because both the accused and the victim were servicemembers and the
stabbing occurred on a military vessel. He alleged that the due process violations that
resulted in his conviction probably would not have occurred had the Coast Guard
retained jurisdiction over the case. He alleged that, in a court-martial conducted under
the Articles of War, he would have had access to all the evidence known to the govern-
4 Powell v. Alabama, 287 U.S. 45, 70 (1932).
ment, whereas in a common law criminal prosecution, discovery was limited “to some
tangible evidence, inspection of grand jury witnesses and a list of government witness
names.” He alleged that in a court-martial, he could have subpoenaed witnesses and
requested an investigating officer to obtain further evidence on his behalf.5 The Coast
Guard could have ordered the subpoenaed witnesses to appear and transported them
to Xxxxx or whatever site it chose for the court-martial.6 Furthermore, a military judge
could have granted a continuance if more time was needed to gather the witnesses.7
In contrast, the criminal code of the territory contained no provisions for discov-
ery. The private attorney assigned to his case at the arraignment would have had to
bear the cost of transporting any witnesses to Xxxxx, were that even feasible after they
had sailed away on the Xxxxxxx. The territory only reimbursed the travel expenses of
witnesses for indigent defendants if the witnesses were located within the district or
within 100 miles of the court.8
The applicant argued that the only reason the Coast Guard failed to court-martial
him was because he was black and there was racial animus on board the Xxxxxxx after
the incident. Therefore, the captain did not want him or any of the other black sailors to
remain on board. Thus, he was denied due process in large part because of his race.
Pardon
The applicant argued that his discharge should be upgraded from undesirable to
honorable because it was based solely upon his conviction, which was vacated when he
was pardoned by the Governor of Xxxxx in 1997. He alleged that a letter written by the
Deputy Chief of the Coast Guard’s Congressional Affairs Staff in 1993 (see page 46)
proved that the conviction was the sole basis for his undesirable discharge.
The applicant argued that the Governor’s pardon vacated his federal conviction
because jurisdiction over his case “devolved upon the State of Xxxxx” under the Xxxxx
Statehood Act. He argued that “[a] full pardon ‘frees the criminal without any condi-
tion whatever[, erasing both] the punishment prescribed for the offense and the guilt of
the offender. It obliterates in legal contemplation the offense itself.’”9 He alleged that
the pardon showed that he had acted in self-defense in a racially motivated attack and
that he had not received a fair trial.
5 THE ARTICLES OF WAR, Art. 70, 10 U.S.C. § 1471 (1920).
6 Calvin M. Lederer, Warrants of Attachment: Forcibly Compelling the Attendance of Witnesses, 98 MIL. L. REV.
1, 2 (1982), citing MANUAL FOR COURTS-MARTIAL, para. 115(a) (1969).
7 THE ARTICLES OF WAR, Art. 20, 10 U.S.C. § 1471 (1920).
8 COMPILED LAWS OF XXXXX § 5423 (1933).
9 State v. T.M., 860 P.2d 1286, 1290 n.3 (Alaska Ct. App. 1993) (quoting BLACK’S LAW DICTIONARY (6th ed.
1990)).
SUMMARY OF THE EVIDENCE
APPLICANT’S MILITARY RECORD
enlisted in the Coast Guard Reserve on August 18, 194x, as a seaman third class.
The applicant was born on July 29, 192x, in xxxxxxxxxxx, xxxxxxxxxxxx. He
On January 1, 194x, the applicant was promoted to fireman first class.
On June 30, 194x, the applicant went to captain’s mast for failing to carry out a
He was promoted to seaman second class on November 27, 194x, and to seaman
first class on February 20, 194x. On May 29, 194x, he was promoted to fireman second
class.
lawful order and was awarded non-judicial punishment (NJP).
On October 14, 194x, the applicant appeared before a summary court-martial at
the Coast Guard barracks in New York City for “wilfully, maliciously, and without jus-
tifiable cause” assaulting and wounding another member of the Coast Guard with a
hunting knife on August 18, 194x. The member was cut on his left arm, left elbow, and
left wrist. The charge was proved, and his sentence was confinement for two months,
extra duties for two months, and a fine of $132.
work and was awarded NJP of 10 days’ restriction and 20 hours of extra duty.
The applicant was reported by his commanding officer in Charleston, South
Carolina, to be AWOL (away without leave) from December 19, 194x, to December 26,
194x. He was apprehended by the Navy Shore Patrol in Jacksonville, Florida.
On June 20, 194x, the applicant began serving on the U.S.S. Xxxxxxx. For his
service overseas on the Xxxxxxx, the applicant became eligible to wear the Asiatic-
Pacific Area Campaign Medal and the American Campaign Medal.
The applicant’s DD Form 214 indicates that he was discharged on April 27, 194x,
with an “undesirable” character of discharge. His final average marks were 2.39 for
proficiency and 2.91 for conduct.10
On November 1, 194x, the applicant went to captain’s mast for failing to report to
10 The copy of the applicant’s record provided by his counsel did not include the evaluation marks he
received during his first two years on active duty after his enlistment on August 18, 194x. His quarterly
marks thereafter were as follows: 9/30/4x: 3.0 for proficiency, 4.0 for conduct; 11/1/4x: 2.5 for
proficiency, 2.5 for conduct; 3/31/4x: 3.0 for proficiency, 4.0 for conduct; 6/14/4x: 3.0 for proficiency, 4.0
for conduct; 9/30/4x: 2.5 for proficiency, 4.0 for conduct. In addition, the applicant received nine
LOG OF THE U.S.S. XXXXXXX
Just after midnight, on Saturday, October 27, 194x, the ship’s log notes that the
“liberty party” returned on time. The log records the stabbing incident and its after-
math as follows:11
0035 [12:35 a.m.] – Fight reported on after berth deck, Officer-of-the-Deck below to
investigate. Discovered [L.S.] to be severely injured, results of knife wounds inflicted by
[the applicant]. 0040 – [L.S.] pronounced dead by [the ship’s doctor]. 0055 – [R.S.] and
shore patrol of four (4) men returned. 0100 – [The applicant] placed under armed guard.
0110 – [R.Y.] placed on report by the [Officer of the Deck] for disorderly conduct. 0120 –
[The applicant] placed in custody of U.S. Marshall … for confinement in Federal brig.
The following named men placed in custody of U.S. Marshall … for safe-keeping: [F.W.,
J.M., and M.W.][12] 0130 – Security watch of two (2) officers, one (1) chief and three (3)
guards placed throughout the ship; security patrol stationed on dock. 0200 – Two (2)
shore patrol dispatched to Federal Brig as sentries. 0205 – Dr. [A.N.], coroner of Xxxxxxx,
Xxxxx, aboard. 0230 – Body of [L.S.] removed to Xxxxxxx morgue for autopsy by [the
ship’s doctor], and Dr. [A.N., the local coroner].
At 4:00 p.m. that day, the log notes that the body of L.S. was taken by plane to Xxxxxxx
for burial in a Coast Guard plot.
On October 28 and 29, 194x, the ship’s log notes that the crew were “maintaining
Brig watch at U.S. Federal Building.” At 9:30 a.m. on Monday, October 29th, the log
indicates that the “Board of Investigation party and witnesses departed for U.S. Federal
Building.” The party returned at 11:45 a.m. and departed again at 12:55 p.m. At 2:00
p.m., the log notes that “[t]he following persons appeared in Justice’s Court … in accor-
dance with Justices Court Subpoena of 29 October, 194x … : [the ship’s doctor]; [R.W.];
[R.D.]; [R.A.].”
On Tuesday, October 30, 194x, the ship’s log notes that at 3:25 p.m., “[the appli-
cant was] delivered to custody of … Deputy U.S. Marshal on a warrant issued for his
arrest by U.S. Commissioner’s Court, Xxxxxxx, Xxxxx, charging the crime of murder.”
At 9:45 p.m., the log notes that the “[p]ersonal gear belonging to [the applicant was]
transferred to Federal Building, Xxxxxxx, Xxxxx, as per invoice no. 46-44.”
On Wednesday, October 31, 194x, the ship’s log notes that the crew was still
maintaining the brig watch at the Federal Building where the applicant was held. At
10:15 a.m., the log notes that an agent of the Federal Bureau of Investigation (F.B.I.)
conduct marks of 4.0 for very short-term periods during the year before the stabbing. From 11/1/4x to
4/27/4x, he received marks of 0.0 in proficiency and conduct for four evaluations.
11 For privacy purposes, crewmembers are identified by their initials rather than by name in this decision.
Because some crewmembers have the same initials, certain crewmembers are identified by initials
consisting of the first letters of their first names and the last letters of their last names.
12 These three were the only other black crewmembers serving on the Xxxxxxx.
came on board to interview witnesses and for transportation to Xxxxxxx. The log also
notes that F.W., J.M., and M.W., the three other black sailors “reported on board for
return to regular duty.” The ship sailed to Xxxxxxx the same day.
On Thursday, November 1, 194x, the ship’s log notes that F.Z., R.W., E.G., N.S.,
R.D., and P.V. were transferred off the ship pursuant to instructions in ALCOAST bul-
letin 99-44.
On Friday, November 2, 194x, the ship’s log notes that F.W., J.M., and M.W., as
well as another sailor, T.S., were transferred off the Xxxxxxx pursuant to ALCOAST 99-
44. The ship left Xxxxxxx the same day with orders to sail to the Far East.
STATEMENTS IN THE 194x F.B.I. REPORT
The F.B.I. agent who boarded the Xxxxxxx to investigate the stabbing completed
his report on November 28, 194x. The report states that the applicant was delivered
over for civilian prosecution because “under articles governing the Navy or Coast
Guard, neither had authority to court martial a man for the crime of murder if it was
committed within the territorial jurisdiction of the United States.” The F.B.I. report
included 20 statements attributed to the applicant and other crewmembers after their
interviews with the agent.13 The agent reported that the statements were made in
duplicate and that the duplicate copies were given to the U.S. District Attorney in
Xxxxx, Xxxxx. Large excerpts of these statements appear in Appendix A to this deci-
sion. The statements are summarized below.
194x Statement of the Applicant14
The applicant stated that, after returning to the ship from shore leave, he had
been in the Mess Hall with his friend, J.M., but was heading to bed about 12:05 a.m.,
when he ran into L.S., R.W., and R.Y., who was very drunk, in a passageway. The
applicant made no mention of any incidents on shore.
The applicant stated that in the passageway, L.S. shoved him and said, “go hit
your sack you black cocksucker.” L.S. grabbed the applicant’s coat. The applicant
stated that he then kicked L.S. in the abdomen, ran down the passageway, turned
13 The use of personal pronouns indicates that the applicant and some sailors wrote or dictated and
signed their statements themselves, while other statements were apparently typed up by the F.B.I. agent
after his interviews. However, the BCMR does not have any of the original 194x statements.
14 The agent reported that he interviewed the applicant in the Xxxxxxx jail between 9:30 p.m. on October
30, 194x, and 1:30 a.m., October 31st, after he was arraigned by the Commissioner. The agent reported
that the applicant “was advised of his constitutional rights” and that his statements “were reduced to
writing and signed by” the applicant.
around, and kicked him in the abdomen again because L.S. had followed him. Then he
heard R.W. yell “get him,” and he ran toward his berthing compartment.
The applicant stated that, as he was “undogging” (opening) a hatch, R.W. found
him and told him L.S. was going to bed and that the applicant should not have kicked
L.S. The applicant also stated that although a pipe was “involved,” he did not remem-
ber having it in his hand or handing it to R.W.
The applicant went to his locker near his bunk and opened it. L.N. told him not
to get into trouble. He heard R.W. say that he was “a knife man.” R.W. told him
repeatedly that if he “cut” L.S., R.W. would “bend a pipe over” the applicant’s head.
R.W. also said “I’ll do you like they do Negros in Texas.” Then E.G. and R.W. talked
about how “they hang and beat Negros in Texas.” The applicant stated that he had not
seen his knife yet and that he told R.W. his knife was locked up.
The applicant stated that he then squatted down and opened his locker, which
was not in fact locked. L.S. entered the room looking for him, and B.C., who was near
the hatch, pointed the applicant out by saying “there that Negro is.” L.S. came “charg-
ing after” him “attempting to hit” him. The applicant used his arms to “knock off”
L.S.’s blows and then ran around some of the bunks. The applicant stated that he ran
through a crowd of men, stumbled, and was caught or held by one or two sailors. He
told them, “Hold [L.S.], don’t hold me.” He continued running and fell down near his
locker.
The applicant stated that he was on the ground by his locker when L.S. gripped
him by the neck, with his arm under the applicant’s chin. He could hardly breathe, but
then L.S. dropped him. The applicant stated that as he tried to retrieve his knife from
his locker, L.S. tried to pull him to his feet, but he got the knife, pulled it out of its
sheath, and rose to his feet, while L.S. was still “strangling” him. The applicant stated
that his right arm and hand, holding the knife, went over L.S.’s back, but then his mind
went blank, and he could not recall the rest, except that some sailors started punching
and kicking him before the Officer of the Day arrived and stopped them.
194x Statement of J.M.15
J.M., a black petty officer and the applicant’s friend, stated that he accompanied
the applicant while they went on shore leave. In his description of their evening on lib-
erty, J.M. did not mention running into L.S. at all. He stated that the applicant drank
five or six shots or “approximately 1/2 pint of whisky” over the course of the evening.
15 J. M.’s 1996 statement is summarized on page 30.
J.M. stated that in one bar, the applicant danced with a white girl. Later, the
applicant asked the girl to dance again, but she refused and told him he was too drunk.
J.M. said that if he had been she, he would have refused to dance with the applicant too.
J.M. also stated that later in the evening, the applicant got into an argument with
another sailor, whom J.M. did not know.16 He did not indicate the cause of the argu-
ment.
J.M. stated that he and the applicant left the bar to return to the ship and were
followed by the man with whom the applicant had argued. The three of them went to
the Mess Deck and continued to argue. The applicant soon said he was tired of arguing
and left to go to bed, leaving the other two on the Mess Deck. J.M. estimated that this
happened sometime between 12:15 and 12:30 a.m.
Shortly thereafter, L.S. and another sailor entered the Mess Deck and asked J.M.
if he knew where the applicant was. L.S. told J.M., “If I find him, I’ll kill him. He
kicked me in my stomach.” B.C. and F.R. advised J.M. that four sailors were looking for
the applicant and “had it in for him” because he had kicked L.S. in the stomach. J.M.
stated that he told F.R. that “he had done his best all evening to keep [the applicant] out
of trouble so that any further trouble in which he got involved would be his own neck.”
J.M. said he then went to bed.
Regarding race relations on board, J.M. stated that “he had not had any trouble
with any of the white men on board ship.” However, he stated that the applicant was
not well liked because of his “independent, arrogant attitude.” But, J.M. said, the dis-
like was “due strictly to his personality and not against him because of his race.” J.M.
stated that the applicant was “always arguing with someone.” He further indicated
that the four black sailors had discussed the fact that they should try to keep out of
trouble because there were men who did not want them on board. He stated that the
only overtly racist incident he knew of was when a white sailor protested having to
sleep in the same compartment with a black sailor.
serve as a witness at the applicant’s trial.
The F.B.I. report states that J.M. was transferred off the ship to be available to
194x Statement of R.W.
R.W. stated that he and L.S. had gone “uptown” together while on shore leave in
Xxxxxxx. L.S. had had “about five drinks” during the evening. L.S. spent most of the
evening talking with “an old Indian man and his wife” in a bar. R.W. stated that they
16 It is clear from his statement that J.M. knew L.S. Therefore, this argument presumably was not with
L.S.
had not run into the applicant at all while on shore and that L.S. did not quarrel or fight
with anyone in Xxxxxxx that evening.
R.W. and L.S. returned to the Xxxxxxx together about midnight. They came
upon the applicant, A.A., and R.Y., who was drunk, arguing in a passageway. L.S. and
the applicant began to scuffle, and the applicant kicked L.S. in the stomach. R.W. saw
the applicant run down the passageway, with L.S. chasing him, turn around, brace him-
self, and kick L.S. in the stomach again. R.W. said he told L.S. to forget it, but L.S. ran
after the applicant.
R.W. followed them down the passage. He found the applicant by the starboard
hatch of the berthing compartment with a ten-inch pipe used for dogging hatches in his
hand. R.D. was talking to the applicant. R.W. says he persuaded the applicant to hand
over the pipe. R.W. denied having threatened the applicant. He stated that he told the
applicant he would try to keep L.S. away from him, and the applicant walked away
toward his bunk.
R.W. stated that in the berthing compartment, he heard someone mention a knife
and saw sailors arguing with the applicant about his knife. He said he then approached
the applicant and saw that he had his knife out. R.W. told him to put it away and
threatened to use the pipe on him if the applicant “cut” L.S. The applicant put the knife
away in his locker, and R.W. handed the pipe over to another man.
At this moment, L.S. entered the compartment. R.W. stated that he went to him
and warned him that the applicant had a knife. However, L.S. approached the appli-
cant and they “swung two or three licks at each other, but neither were hit.” The appli-
cant then ran around some bunks, ran back to his locker, and dropped to his knees to
open it. L.S. grabbed the applicant around his neck somehow —R.W. stated that he
could not see—and said: “Stand up and fight like a man.” R.W. stated that the appli-
cant told L.S. he had a knife but then “instantly got up on his feet, threw his left arm
around [L.S.’s] right shoulder and pulled [L.S.] close to him” before throwing his right
arm over L.S.’s back to stab him three times. R.W. stated that it happened too fast for
anyone to stop it. He stated that these events—beginning with the incident in the pas-
sageway—happened over a period of six to eight minutes.
R.W. stated that after the stabbing, E.G. took the knife away from the applicant
and other sailors began to punch him, saying “Why did you cut him—etc.” R.W. indi-
cated that he and L.S. were close friends, and he knew L.S. had not previously had
trouble or arguments with the applicant.
Regarding race relations on board, R.W. stated that he had “not observed any
prejudice or discrimination shown against the negroes.” He also stated that the other
black crewmembers, F.W., M.W., and J.M., were “nice fellows” but that the applicant
had “always been arrogant, quarrelsome and a ‘wise guy’.” He stated that most of the
crew knew the applicant had “cut” a man before.
The report states that R.W. was transferred off the ship to be available to serve as
a witness at the applicant’s trial.
194x Statement of J.C.
J.C., a sonarman on the Xxxxxxx, stated that, while on liberty in Xxxxxxx, he
“saw [L.S.] two times and [the applicant] once or twice up town, but neither time were
they together.” J.C.’s description of the stabbing was substantially the same as that of
R.W. and the other witnesses. He mentioned that L.S. called the applicant a “black
s____ b____” when the applicant was on his knees reaching into his locker for the knife.
He stated that the fight in compartment 202 happened about 12:10 or 12:15 a.m.
194x Statement of A.A.17
A.A. stated that he was helping R.Y., who had gotten drunk in Xxxxxxx, get back
on board and to his bunk about 12:10 a.m. when they ran into the applicant and L.S. in a
passageway. The applicant called R.Y. a “c___ s_____,” and A.A. had to hold R.Y. back
to prevent a fight. A.A. stated that L.S. began to help him with R.Y., but the applicant
pushed L.S. away, saying “He doesn’t need your help, I’ll help.” L.S. and the applicant
then began shoving each other. A.A. stated that L.S. did not punch the applicant at this
time. However, the applicant kicked L.S. in the stomach, ran down the passageway,
turned, braced himself, and kicked L.S. in the stomach again. The applicant and L.S.
then disappeared, running aft down the passageway.
Regarding race relations on board, A.A. stated that he had not seen any of the
black sailors being mistreated. He stated, however, that the applicant was a “wise guy”
who frequently got into arguments and used “filthy language.” A.A. said that he did
not think either the applicant or L.S. was drunk.
194x Statement of F.Z.
F.Z. was also in the passageway, and his description of the cause and onset of the
fight between the applicant and L.S. is very similar to A.A.’s description, although he
stated that it occurred between 11:45 and 11:55 p.m. F.Z. stated that, based on their
actions and quickness, he did not think either the applicant or L.S. was drunk.
17 A summary of an audiotaped telephone interview between A.A. and the applicant’s counsel appears
on page 36.
F.Z. said that he followed L.S. down the passageway and into a berthing com-
partment. They asked other sailors if they had seen the applicant, but no one had. F.Z.
then “went on top side” and did not witness the stabbing, which he estimated hap-
pened about ten minutes after the incident in the passageway.
cated that he and the applicant had argued several times before.
able to serve as a witness at the applicant’s trial.
The report states that F.Z. was transferred from the Xxxxxxx in order to be avail-
F.Z. said that the applicant was a “wise guy” who often carried a knife. He indi-
194x Statement of F.W.
F.W., one of the other black crewmembers of the Xxxxxxx, stated that he was in
his bunk when the applicant walked past into the next berthing compartment. A little
later, L.S. and another man walked through asking if anyone had seen the applicant.
Then someone he knew as “Joe” came in quite intoxicated. He asked for the applicant
and said, “I’ll kill the s___ b____.” Some of the crew got “Joe” under control and took
him away. F.Z. and R.W. also walked through looking for the applicant. F.W. stayed in
his bunk and did not witness the stabbing.
194x Statement of L.N.18
L.N. stated that he was in the berthing compartment at about 12:15 a.m. when he
heard that L.S. was looking for the applicant. L.N. told the applicant he should “go tell
the Officer of the Day what was going on for his own protection,” but the applicant
refused. R.W. came up to talk to the applicant and told L.N. that he had taken the pipe
in his hands away from the applicant. L.N. stated that he then took the pipe away from
R.W.
L.N. stated that when L.S. came in, L.N. tried to get hold of him, but L.S. walked
on toward the applicant. L.N. started to leave to get the Officer of the Day, but just
before he left the compartment, he turned and saw the applicant stab L.S.
194x Statement of R.C.
R.C. was sleeping in his bunk across the aisle from the applicant’s bunk when he
was awakened by N.S. and L.N., who were talking. The applicant came in and joined
them. R.C. heard L.N. tell the applicant he should go to the Officer of the Day and ask
18 In 1996, the applicant’s attorney prepared an affidavit for L.N. that he never signed. Excerpts of the
unsigned statement appear in Appendix B on page B-13. An audiotape of an interview between the
applicant’s counsel and L.N. is summarized on page 34).
for protection. He heard R.W. tell the applicant to put his knife away. He also heard
R.W. tell the applicant that if he “cut” L.S., R.W. would “bend” the pipe over his head.
R.C. stated that from his bunk, he saw L.S. come in and chase the applicant
around the bunks. L.S. caught up with the applicant near his locker and began to throw
punches, which the applicant “warded off” with his arms. Then the applicant dropped
to his knees to open his locker, and L.S. kicked him. When the applicant stood up, he
had a knife in his hand, and he reached over L.S.’s shoulder and stabbed him in the
back.
194x Statement of N.S.19
N.S. was in the berthing compartment at about 12:05 a.m. when the applicant ran
by appearing “excited.” N.S. stated that he walked toward the applicant’s bunk and
saw R.W. with a pipe in his hand talking to the applicant. N.S. saw that the applicant
had his knife in a sheath sticking out of the top of his trousers. He saw L.N. talking to
both R.W. and the applicant. N.S. said that at about 12:10, R.W. told L.N. that he had
taken the pipe away from the applicant, and the applicant said that he had grabbed the
pipe to protect himself. N.S. said that he heard R.W. tell the applicant that he would
use the pipe on him if the applicant used his knife on L.S., but he did not hear any
threats about treating the applicant like the people in Texas treat Negroes. N.S. heard
L.N. tell the applicant to go to the Officer of the Day. He stated that they convinced the
applicant to put his knife away but he would not go to the Officer of the Day. He
described the applicant as “scared and excited.”
When L.S. came running in, N.S. saw L.N. and R.W. try to stop him. He heard
L.N. say that the applicant would knife L.S. and that he would go get the Officer of the
Day. N.S. stated that there were several men between him and the applicant at the
moment of the stabbing and so he did not see it.
as a witness at the applicant’s trial.
The report states that N.S. was transferred off the ship to be available to appear
194x Statement of R.D.
R.D. stated that he was in his bunk when L.S. and F.Z. came through looking for
the applicant because, they said, he had kicked L.S. in the stomach. R.D. went out of his
compartment and saw R.W. take a pipe away from the applicant. He stated that R.W.
and the applicant were not arguing. R.D. stated that he told the applicant to go to the
officers’ ward room, but the applicant did not answer him.
19 N.S.’s 1996 statement is summarized on page 29, below.
A little later, he walked into the berthing compartment and saw R.W. and the
applicant talking. He heard the applicant say, “I will hit my sack if you will get [L.S.] to
hit his sack.” He also heard the applicant agree to put his knife away. R.D. stated that
as he left to go back to his own compartment, he heard L.N. say, “If someone doesn’t go
after the [Officer of the Day], I will.”
Soon he heard a commotion and went back into the other compartment. R.D.’s
description of the fight was very similar to that of the other sailors. He saw L.S.’s hands
around the applicant’s neck and shoulders but “could not see the exact position or
nature of the hold” or say whether the applicant was being choked. He heard L.S. say,
“Stand up and fight like a man.” He stated that as the applicant rose to his feet, L.S.
was not hitting him, but the applicant told L.S. that he had a knife and quickly stabbed
him.
serve as a witness at the applicant’s trial.
The report states that R.D. was transferred off the Xxxxxxx to be available to
194x Statement of R.A.
R.A. stated that at about 12:15 a.m., the applicant ran through compartment 202
into 203, followed a few minutes later by L.S., who was looking for the applicant. A few
minutes later, he walked over to the starboard side of the compartment and saw R.W.
take a pipe away from the applicant. He stated that they were not arguing. Later, R.A.
overheard part of the conversation between the applicant, R.W., L.N., and N.S. He
heard them talk the applicant into putting away his knife. R.A. stated that L.S. came in
about a minute later. He saw L.S. running around the bunks after the applicant and
observed some “scuffling” but did not see the stabbing. After the stabbing, he saw E.G.
take the knife away from the applicant.
194x Statement of P.V.20
P.V. stated that he was asleep in his bunk, which was next to the applicant’s,
when he was awakened by a scuffle. He first noticed that there were 10 or 15 men
standing around the compartment “talking and hollering.” He saw L.S. hit the appli-
cant, who protected himself with his arms and then knelt down by his locker. P.V. saw
L.S. hit the applicant again around his body and shoulders with his “hands,” kick him
once, and call him an “S.B.” P.V. stated that L.S. was not holding the applicant’s neck
or choking him. People were telling them to break it up, but the applicant rose,
embraced L.S., and stabbed him. After the stabbing, P.V. said, he saw the applicant
20 P.V.’s 1996 statement is summarized on page 32. An unsigned statement prepared by the applicant’s
counsel is excerpted in Appendix B on page B-14.
swing at B.C. with the knife before it was taken away from him. P.V. did not leave his
bunk during the fight.
as a witness at the applicant’s trial.
The report states that P.V. was transferred off the ship to be available to appear
194x Statement of H.R.21
H.R. stated that he was awakened shortly after midnight and witnessed L.S.
chasing the applicant around the bunks. L.S. brushed off several men who tried to stop
him. When the applicant went to his locker, H.R. saw L.S. grab him by the “shoulders
and jumper” and pull up saying, “Stand up and fight like a man.” H.R. saw the appli-
cant rise, turn to face L.S., and stab him three times very quickly in the back.
194x Statement of P.B.
P.B. stated that at about 12:20 a.m., he entered compartment 202 upon hearing a
commotion and saw L.S. trying to make the applicant stand up by pulling on his shoul-
ders. He saw the applicant rise to his feet, get closer to L.S., throw his right arm over
L.S.’s left shoulder, and stab him two or three times in the back. P.B. stated that he did
not see L.S.’s arm around the applicant’s neck.
asked him why he “cut” L.S. He stated that other men were doing the same.
P.B. admitted that he hit the applicant three or four times after the stabbing and
194x Statement of B.C.
B.C. stated that he heard a scuffle and entered the berthing compartment in time
to see L.S. trying to pull the applicant to his feet by his shoulders. B.C. stated that the
applicant “came to his feet, threw his left arm around [L.S.’s] body and with his right
hand stabbed [L.S.] in the back three times.” B.C. then saw E.G. take the knife away
from the applicant, and men began to hit him.
194x Statement of E.G.
E.G. stated that he observed the climax of the fight after he came aboard from
liberty at about 12:10. His description of it was consistent with that of other witnesses.
He stated that he heard L.S. say, “Get up and fight like a man” and that L.S. was hold-
ing the applicant around his neck or head, but E.G. could not see “the nature of the
hold.” E.G. stated that L.S. did not have hold of the applicant’s neck when the latter
rose to his feet and stabbed L.S. E.G. stated that after the stabbing, he grabbed the
21 H.R.’s 1996 statement is summarized on page 31.
applicant’s right arm, took the knife, and threw it out of the way under some lockers.
He stated that sailors punched and kicked the applicant, while asking him why he “cut”
L.S.
as a witness at the applicant’s trial.
The report states that E.G. was transferred off the ship to be available to appear
194x Statement of Ensign R.R., Officer of the Day22
R.R. stated that he was in the Ward Room serving as Officer of the Day when a
sailor entered at about 12:20 a.m. and told him of the stabbing. He further stated that
when he entered the berthing compartment, he pulled his gun to stop the men from
hitting and kicking the applicant.
194x Statement of W.M.
W.M., one of the other black crewmembers of the Xxxxxxx, stated that he was
asleep in his bunk when someone awakened him, told him about the stabbing, and told
him to report to the Officer’s Ward Room. He stated that he had not seen or heard
anything of the fight.
194x Statement of LCDR C.S., Commanding Officer of the U.S.S. Xxxxxxx
Lieutenant Commander C.S., the captain of the Xxxxxxx, stated that the applicant
ran into the Ward Room at about 12:30 a.m. and told him “They made me do it.” Upon
inquiry, the applicant said, “I cut a man.” The applicant then told him he had been on
the Mess Deck with J.M. but was headed to bed when he met R.Y. and L.S. in the
passageway. The applicant told the captain that L.S. had called him a “cocksucker,”
told him to go to bed, and raised his arm to swing at the applicant, so the applicant
“pushed his foot out and stopped” L.S. The applicant then refused to say anything
more to the captain. The captain indicated that the applicant “was not drunk and knew
what he was doing.”
The captain stated that, when he again interviewed the applicant at 9:00 a.m., the
applicant told him that L.S. had been kicking him when he was getting his knife from
his locker. The applicant further told him that he had stabbed L.S. in the back as he
came to his feet. The applicant also told the captain that he had gotten “tight” while on
shore leave but “knew what he was doing.” The applicant again told that captain that
the men had “forced” him to do it. When the captain asked him if the circumstances
justified killing L.S., he answered, “No, I won’t say anything more.”
22 R.R.’s 1996 statement is summarized on page 31. A statement he signed in 1999 for the Coast Guard is
summarized on page 34.
The captain stated that the Coast Guard had held a Board of Investigation on
October 29 and 30, 194x, to inquire into the death of L.S. The captain stated that a lieu-
tenant junior grade who served as the applicant’s defense counsel had instructed the
applicant not to make any statements to the Board.
The captain also stated that the ship was headed to Shanghai, China, but if wit-
nesses other than those being left behind were necessary for the applicant’s trial, they
could be reached by a request to Coast Guard headquarters.
194x Statement of the Deputy U.S. Marshal
The Deputy U.S. Marshal reported that the captain of the Xxxxxxx gave him the
hunting knife the applicant allegedly used to stab L.S. He reported that the knife was
11.5 inches long, with a 7-inch blade. It was covered in dried blood. He stated that E.G.
had identified the knife as the one he had taken from the applicant after the fight.
MEDICAL AND AUTOPSY REPORTS
The F.B.I. report included the coroner’s report and reports by the ship’s doctor.
The F.B.I. report states that L.S. was 5’ 10” tall, 200 pounds, and “stout.” His military
personnel record indicates his race was white, but in fact he was Native American.23
The applicant, an African American, was 5’ 7” tall, 138 pounds, and “slim.” Excerpts of
the medical reports appear in Appendix D to this decision.
Report of the Autopsy on L.S. by Dr. A.N., Coroner
The report of the autopsy stated that L.S. had three wounds in his back. The first,
over his right scapula, was two inches deep and did not extend through the scapula.
The second, located to the left of the spine, penetrated the thoracic cavity. The third,
located to the right of the spine, also entered the thoracic cavity.
Report of the Ship’s Doctor to the F.B.I. Concerning L.S.’s Wounds
The ship’s doctor stated that he examined L.S. in the berthing compartment soon
after the stabbing. Initially, L.S. was still breathing with difficulty, but his pulse was
imperceptible. He had three “gaping” wounds in his back.
Report of the Ship’s Doctor to the F.B.I. Concerning the Applicant’s Injuries
The ship’s doctor stated that he examined the applicant at 3:00 a.m. on the
morning of the stabbing. The applicant was moderately intoxicated and had contusions
on his “left ankle, left hip, right lower leg, lumbar area, [and] right lower arm.” These
areas were tender. There was also a slightly tender “brush burn” contusion on his mid
right forearm. The doctor noted that the “flexion” of the applicant’s back was limited
about 50 percent because of pain and that the applicant stood with difficulty because of
pain in his left ankle and hip.
23 Although L.S.’s enlistment papers indicate that he was white, fellow crewmembers apparently knew
him to be Native American. The Coast Guard recently contacted a relative of L.S., who stated that L.S.
was a member of the Xxxx Indian Nation.
The doctor stated that the applicant’s head, scalp, and neck appeared “normal” and
that nothing was wrong with his ears, eyes, nose, throat, and thorax.
Applicant’s Medical Records
from xxxxxxxx, xxxx, and deafness and that he underwent a spinal fusion.
The applicant submitted many medical records indicating that he has suffered
Medical Opinion on Applicant’s Physical Examination by the Ship’s Doctor
The Coast Guard submitted a recent doctor’s analysis of the report of the ship’s
doctor to the F.B.I. concerning the applicant’s physical condition after the incident. The
doctor is the Chief of the Office of Health Services at Coast Guard Headquarters. He
previously served as the consulting physician to the Albemarle County jail in Virginia
and stated that he is therefore “familiar with the aftermath of physical assaults and their
attendant injuries.”
The doctor stated that the ship doctor’s description of the applicant’s condition
“is consistent with a history of assault.” He noted that no bruising of the neck was indi-
cated but that the ship’s doctor might have missed a bruise because the applicant is
black. He indicated, however, that if the applicant’s neck had been hurt, the doctor
probably would have seen swelling or injury to the skin. He stated that a “brush burn”
is usually caused by friction or scraping rather than by hitting. The doctor concluded
that “there is no objective evidence from the report … that led me to believe [the appli-
cant’s] life was in jeopardy or that he had suffered a near fatal choking.”
COURT DOCUMENTS
On Monday, October 29, 194x, the F.B.I. agent sent to investigate the stabbing
filed a complaint charging the applicant with first-degree murder. The complaint states
that the applicant, “being of sound memory and discretion, did purposely and of delib-
erate and premeditated malice, kill [L.S.] by cutting him with a knife.” The record indi-
cates that a warrant for the applicant’s arrest was issued and served. Crewmembers
R.W., R.D., R.A., and the ship’s doctor were subpoenaed to appear at an inquest into the
death of L.S. later that day.
Also on October 29, 194x, a six-member coroner’s jury and the U.S. Commission-
er and Ex-Officio Justice of the Peace for Xxxxxxx signed a Verdict of Coroner’s Jury.
The verdict states that the jury, “after due inquiry, and the hearing of testimony, find
that the deceased [L.S.], met his death early Saturday morning, October 27, 194x, aboard
the U.S.S. Xxxxxxx … by penetrating knife wounds of thorax and lacerations of internal
viscera, inflicted by [the applicant], member of crew of said vessel.”
On Tuesday, October 30, 194x, the U.S. Commissioner issued a commitment
order requiring the U.S. Marshal to keep custody of the applicant pursuant to the
charge against him of first-degree murder, a violation of Section 4757 of the Compiled
Laws of Xxxxx. The Commissioner also signed an Order Holding Defendant to Answer
stating that “[i]t appearing to me … from the testimony produced before me on the
examination of the above named defendant that the crime of first degree murder has
been committed and that there is sufficient cause to believe the defendant guilty
thereof. … I have this day committed [the applicant] to jail to await the action of a grand
jury.”
On Wednesday, October 31, 194x, the U.S. Commissioner signed a transcript of
the proceedings in Xxxxxxx, which indicates that the applicant had been charged with
first-degree murder after a hearing on October 30, 194x, at which he “waived examina-
tion” and after the verdict of a coroner’s jury. The transcript indicates that on October
29th and 30th, the complaint was taken, the warrant was issued and returned, the
defendant was arraigned and informed of his rights, the defendant waived examination
in open court, judgment was given and entered that he be held without bail, and the
commitment was issued and returned.
transferred to Xxxxx, Xxxxx. The Commissioner granted the request.
On January 26, 194x, the applicant was indicted for second-degree murder, a
violation of § 4749 of the Compiled Laws of Xxxxx, at the U.S. District Court for the
Territory of Xxxxx in Xxxxx. Bail was set at $5,000. The arraignment was set for Janu-
ary 29, 194x, at 10:00 a.m. The indictment indicates that L.S. was stabbed in the back
and lists the following witnesses before the grand jury: F.Z., P.V., N.S., J.M., E.G., R.D.
(all crewmembers), and A.N. (the coroner). The names of the witnesses are listed twice
on the indictment, which is signed by an Assistant U.S. Attorney for the Territory of
Xxxxx, the Deputy Clerk of the U.S. District Court, and the Foreman of the Grand Jury.
On January 29, 194x, the applicant was arraigned on the charge of second-degree
murder. The clerk noted in a log that the “[e]ntry of plea [was] set for Feb 1st at 10:00
a.m.”
On November 5, 194x, the applicant appeared in court to request that his case be
On February 1, 194x, the court records state, “[a]t this time the defendant was
present in person and by his attorney, [M.E.M.,] for the entry of a plea herein and per-
sonally entered a plea of Not Guilty.” The clerk noted in the log that “Deft personally
entered a plea of Not Guilty.” The transcript of the applicant’s plea on February 1st
appears as follows:
BE IT REMEMBERED, that on the 1st day of February, 194x, at Xxxxx, Xxxxx, the
above titled cause came on for hearing, the HONORABLE …, District Judge, presiding;
the Government appearing by …, United States District Attorney; the defendant
appearing in person and by [M.E.M.], his attorney; the defendant was called before the
Court:
AND THEREUPON, the following occurred:
THE COURT: [Applicant], you are accused in this indictment of murder in the second
degree … . What is your plea, guilty or not guilty?
[The applicant]: Not guilty.
THE COURT: Let a plea of not guilty be entered. That will be all.
On February 11, 194x, the clerk noted that a subpoena for A.N. had been issued,
On February 4, 194x, the judge noted that the applicant’s case was set for trial
following the conclusion of another case, which was set to begin on Monday, February
11, 194x, at 10:00 a.m. However, on Friday, February 8, 194x, the judge noted that the
applicant’s trial could begin that same day at 2:00 p.m. Later that day, the judge
granted a continuance and set the applicant’s trial for Wednesday, February 13, 194x, at
10:00 a.m. The record indicates that “[t]he defendant was present in person.” Also on
February 8, 194x, the coroner, A.N., was subpoenaed to appear at trial on the 13th.
served, and returned.
On February 13, 194x, the court’s record indicates that, “[a]t this time the defen-
dant was present in person[24] and by his attorney, [M.E.M.,] and personally withdrew
his plea of Not Guilty in 2nd degree and personally entered a plea of Guilty to the lesser
included crime of Manslaughter. … United States Attorney concurred.” The clerk noted
in the log that “Deft personally withdrew his plea of Not Guilty to murder in 2nd
degree + personally entered a plea of Guilty to Manslaughter.” He also noted that sen-
tencing was set for February 18, 194x, at 10 a.m. The transcript of the applicant’s change
of plea on February 13th appears as follows:
AND THEREUPON, the following occurred:
BE IT REMEMBERED, that on the 13th day of February, 194x, at Xxxxx, Xxxxx,
the above titled cause came on for hearing, the HONORABLE …, District Judge, presid-
ing; the Government appearing by …, United States District Attorney; the defendant
appearing in person and by [M.E.M.], his attorney; the defendant was called before the
Court:
[District Attorney]: I have just been informed that [the applicant], whose trial was set for
this morning, wishes to withdraw his plea of not guilty to murder in the second degree
and enter a plea to manslaughter, an included offense. He and his attorney informed me
of this about five minutes ago. They are present in court.
[M.E.M.]: Yes, may it please the Court, the defendant informed me of that just a few
minutes ago in the presence of the District Attorney, about five minutes ago, or I would
have notified the Court. That is the defendant’s wishes. …
24 Elsewhere on the same page of court records, the recorder noted that another defendant in a civil case
was not present but was represented by his attorney.
THE COURT: The defendant come forward. [Applicant], in case No. 2414-B you are
indicted by the Grand Jury for … the crime of murder in the second degree … . Previ-
ously in this court you entered a plea of not guilty. You have heard what the United
States Attorney has said and what your counsel has said in reference to your withdraw-
ing that plea and entering a plea now to a lesser included crime, to-wit, the crime of man-
slaughter. Do you understand that?
[The applicant]: Yes, sir.
THE COURT: Do you wish then to have the plea of not guilty to second degree murder
withdrawn?
[The applicant]: Yes, sir.
THE COURT: And do you wish to enter a plea of guilt [sic] to the crime of manslaugh-
ter?
[The applicant]: Yes, sir.
THE COURT: Let the plea of not guilty to second degree murder be withdrawn and a
plea of guilty to manslaughter be entered in this case. You may sit down.
On Monday, February 18, 194x, the record states that “[a]t this time the defen-
dant was present in court in person and by his attorney, [M.E.M.], for the imposition of
sentence. The defendant was asked if he had any reason to state why sentence should
not now be imposed to which he gave no good or sufficient reason. Thereupon the
Court sentenced defendant to serve 5 years at xxxxxxxxx or such other institution as the
Attorney General of the United States may designate.” The transcript of the applicant’s
sentencing on February 18th appears as follows:
AND THEREUPON, the following occurred:
BE IT REMEMBERED, that on the 18th day of February, 194x, at Xxxxx, Xxxxx,
the above titled cause came on for hearing, the HONORABLE …, District Judge, presid-
ing; the Government appearing by …, United States District Attorney; the defendant
appearing in person and by [M.E.M.], his attorney; the defendant was called before the
Court:
THE COURT: [The applicant], in case No. 2414-B, you have been charged with murder
in the second degree, in violation of Section 4759, Compiled Laws of Xxxxx, 1933, and to
that you have entered a plea to an included offense of manslaughter. Do you have any-
thing to say now why sentence should not be passed upon you?
[The applicant]: I ask for leniency of the Court.
THE COURT: I didn’t hear that.
[The applicant]: I ask for leniency of the Court and a little for back time.
THE COURT: How long have you been in jail?
[The applicant]: Four and one-half months.
THE COURT: How old are you?
[The applicant]: Twenty.
THE COURT: You were born in 1926, were you?
[The applicant]: 1925.
THE COURT: Do you have anything further to say?
[M.E.M.]: I have nothing to say.
THE COURT: I have considered your case with your attorney and with the United States
Attorney. In view of your age and of the circumstances which surrounded the case, in
which I have been advised, I have decided to sentence you to the penitentiary, and will
now do so, for a term and period of five years. That will be all.
Also on February 18th, the judge signed a Judgment and Commitment stating
that on February 13, 194x, the defendant “being present and represented by his coun-
sel,” had pled guilty to manslaughter.
On April 11, 194x, the court reporter signed her transcripts of the proceedings in
the applicant’s case. Her certifications state that the transcripts were based on her own
shorthand notes.
after four years imprisonment, in November 194x.
The applicant served time in several federal penitentiaries before being released,
1951 BOARD OF REVIEW, DISCHARGES AND DISMISSALS
In 1951, the applicant applied to the Coast Guard Board of Review, Discharges
and Dismissals (the precursor to the Discharge Review Board) to have his discharge
upgraded. He alleged that he should have been tried by court-martial because the stab-
bing took place on a U.S. vessel.
On August 30, 1951, the president of the Board recommended to the Secretary of
the Treasury that no change be made to the applicant’s character of discharge because it
was “legal, proper, just and equitable under applicable standards of Coast Guard and
naval law and discipline.” The president noted that the applicant “was administra-
tively discharged from the Coast Guard Reserve on 27 April, 194x, with an Undesirable
Discharge by reason of Misconduct Due to Trial and Conviction by Civil Authorities, in
accordance with Article 584(4) CG Regulations. (Ref: HL (PE AD (CG-783) dtd
4/8/46).”
The president based his recommendation on the applicant’s entire record and on
the Board’s finding that the applicant had been treated fairly with regard to the stab-
bing and had pled guilty to manslaughter upon the advice of counsel. He stated the
Coast Guard’s Board of Investigation on October 29, 194x, had concluded that both the
applicant and L.S. had “indulged in intoxicating drink but that both were in possession
of the faculties and were capable of using their reason.” He also stated that, in contrast
to the applicant’s claims, his medical records indicated that his back problems predated
his enlistment in the Coast Guard Reserve.
The president stated that the Coast Guard could have court-martialed the appli-
cant “but could legally turn the subject over to the U.S. Marshall for indictment and
trial.” He stated that, although the applicant had complained that a witness had sailed
away on the Xxxxxxx, his attorney had never tried to subpoena the witness and had
advised the applicant to plead guilty to a lesser charge rather than stand trial for mur-
der, which the applicant agreed to do.
On December 2, 1951, the president of the Board of Review, Discharges and Dis-
missals, sent the applicant a letter informing him that this request to have his undesir-
able discharge upgraded had been denied.
RECENT AFFIDAVITS SUBMITTED BY THE APPLICANT25
The applicant submitted a number of statements prepared by his counsel for
crewmembers of the Xxxxxxx. His counsel prepared the statements in 1996 based on
telephone interviews with the veterans. Excerpts of these statements appear in Appen-
dix B to this decision. The following are summaries of the affidavits submitted by the
applicant.
1996 Statement of N.S.26
N.S., a retired attorney who served as a motor-machinist mate third class on the
Xxxxxxx from November 14, 194x, to November 1, 194x, stated that some of the crew on
the Xxxxxxx “would refer to blacks as ‘n[]’ or ‘black bastards.’” He said that L.S. was a
“large man who liked to throw his weight around to get his own way” and that the
applicant “was not well liked.”
N.S. stated that he had seen the applicant dance with an “Indian girl” at the bar
in Xxxxxxx and that, when L.S. objected to it, “a scuffle ensued.” He further stated that,
when he was back in the berthing compartment, the applicant entered “immediately
followed” by L.S. The applicant retreated to the back of the compartment to a place
where he was trapped, and L.S. began to beat him viciously. N.S. stated that he had
feared for the applicant’s life. N.S. stated that L.S. was too strong for anyone to stop
and that he ran to get the Officer of the Day and so did not see the stabbing. After the
stabbing, N.S. stated, there was “a lynching atmosphere” on board. He further stated
that because of that racist atmosphere, he “never discussed my view or statements to
the FBI with any of my shipmates for fear that they would vent their hostility on me.”
N.S. stated that when he was questioned by the F.B.I. he was reluctant to answer
because he did not want to be put off the ship. However, he was not threatened in any
way. N.S. stated that he was put off the ship and told to remain in Xxxxxxx until he
was called as a witness. He stayed there until January, when he was sent to Xxxxx
pursuant to a subpoena. In Xxxxx, he stayed in a hotel with fellow crewmembers R.D.,
R.W., and some others.
N.S. stated that neither the prosecutor nor the applicant’s attorney ever
approached him to discuss the case. He stated that he does not believe R.D. or R.W.
ever discussed the case with them either. N.S. stated that he does not remember
appearing in front of a grand jury, but he “may have done so.”
25 The applicant also submitted four statements that his counsel prepared for crewmembers but that the
crewmembers did not sign. The unsigned statements are excerpted in Appendix B.
26 A summary of N.S.’s 194x statement to the F.B.I. begins on page 19.
1996 Statement of J.M.27
J.M., a sonarman third class and one of four black sailors (out of more than 150)
on the Xxxxxxx, stated that “there was a tense racial climate” on board and that the
black and white sailors “tended to keep to themselves.” He tried to “stay clear of many
of the white sailors.”
J.M. stated that he spent a lot of time with the applicant and was certain that the
applicant “never had any trouble with any member of the crew, officers or enlisted until
the night of October 26-27, 194x.”
J.M. stated that, while on liberty in Xxxxxxx, he saw the applicant dance with a
white woman. L.S. tried to cut in, the woman refused, and L.S. got into an argument
with the applicant. Fearing violence, J.M. stated, he and the applicant returned to the
Xxxxxxx, and the applicant went to bed. J.M. stated that he then heard L.S. and other
sailors discussing the applicant’s dancing with the white woman “in a loud and aggres-
sive tone.” J.M. stated that he then returned to his own bunk in the officers’ quarters
and did not witness the stabbing.
J.M. stated that after the stabbing, he was removed from the ship for his own
safety. He was kept in the Xxxxxxx jail for about a week and then flown to Xxxxx,
where he was kept in the jail for several days. He stated that while in Xxxxx, no one
ever discussed the case with him and he never testified at any proceeding. He stated
that he remembered the time well because he met his wife while staying in Xxxxx.
1996 Statement of L.B.
L.B., a sonarman first class on board the Xxxxxxx from 194x to 194x, stated that
he had not been on leave in Xxxxxxx but had heard that the applicant and L.S. got into
an argument at a dance. He stated that he was in his bunk in the berthing compartment
when he heard a disturbance and looked down to see that L.S. had the applicant “in a
bear hug with each man facing … the other.” He stated that the applicant “was also
holding on to” L.S. and stabbed him in the back.
L.B. stated that he thought the applicant was not the instigator and was merely
defending himself. He thought L.S. “had it coming.” He also stated that he sailed with
the ship to China and was not asked to testify at any proceedings.
1996 Statement of M.Z.
27 A summary of J.M.’s 194x statement to the F.B.I. begins on page 15.
M.Z., a crewmember of the Xxxxxxx from 194x to 194x, stated that he was in his
bunk in the berthing compartment when he saw the applicant being chased by L.S. He
saw L.S. catch the applicant as he stopped at his locker to grab a knife. M.Z. stated that
the two men “wrestled and scuffled” until L.S. was stabbed.
1996 Statement of R.S.
R.S., a chief pharmacist’s mate on the Xxxxxxx from 194x to December 194x,
stated that he was on shore patrol when someone told him about the stabbing. When
he got to the ship, the applicant had already been put in the Xxxxxxx jail. He stated that
the captain had L.S.’s body removed from the ship as if he were alive in an attempt “to
avoid repercussions.” R.S. stated that “blacks were not tolerated too well.”
R.S. said he assisted at the autopsy and that L.S. was such a large man “that there
probably was not anyone big enough on the ship to stop him.” R.S. accompanied L.S.’s
body to the inquest and had to “unzip” the wounds, which had been sewn up, so they
could be examined.
1996 Statement of H.R.28
H.R., a signalman on the Xxxxxxx from 194x to 194x, stated that he was in his
bunk around midnight when he saw L.S. chasing the applicant around. When the
applicant dropped to his knees beside his locker, L.S. grabbed him and said, “Stand up
and fight like a man.” H.R. stated that he saw the applicant grab his knife and stab L.S.
After the stabbing, H.R. stated, the applicant was removed so that there would not be a
“race riot.”
1996 Statement of W.R.
W.R., a crewmember of the Xxxxxxx from 194x to 194x, did not indicate whether
he had witnessed any of the events in question. However, he stated that on the night in
question, L.S. became angry because the applicant danced with a white woman at a
dance in Xxxxxxx. W.R. stated that when they returned to the ship, L.S. told the appli-
cant not to dance with white women and “was going to beat the hell out of him, when
[the applicant] stabbed [L.S.] in the back.”
W.R. stated that after the stabbing, sailors began to beat the applicant, and one
struck him with a fire extinguisher. Later, he said, some of the crew were so angry that
they aimed a three-inch gun at the jailhouse and said they would blow it up but were
stopped by an officer.
28 H.R.’s 194x statement to the F.B.I. is summarized on page 21.
W.R. stated that many sailors were reluctant to admit to the F.B.I. that they had
witnessed the stabbing.
1996 Statement of R.R.29
R.R., an ensign on the Xxxxxxx who was the Officer of the Day, stated that he
was standing watch on deck when someone came to tell him that there was a fight. He
ran to the berthing compartment, where he found “a sea of people … milling around.”
He told the applicant to go to the Ward Room. Because some of the crew were becom-
ing “hysterical,” he had the lights turned off for a while so they would settle down.
R.R. stated that the applicant and the three other black sailors were transferred off the
ship for fear of “repercussions” since the stabbing was done by a black man.
1996 Statement of R.E. 30
R.E., a seaman on the Xxxxxxx from 194x to 194x, stated that he did not witness
the stabbing, but he remembered that all the black sailors were transferred off the ship
for fear that some of the southern sailors might harm them.
1996 Statement of A.P.
A.P., a lieutenant and engineering officer on board in the Xxxxxxx in 194x, stated
that he was not on board at the time of the stabbing, but he spoke about it with other
officers who were on board and who told him they thought the applicant “was not to
blame for the incident.” A.P. remembered that all of the black crewmembers were
taken off the ship after the stabbing for their own protection.
1996 Statement of W.D.
W.D., who served on the Xxxxxxx from 194x to 194x, indicated that shortly before
the incident, he saw the applicant in the Mess Hall “not looking for any trouble.” After
W.D. went to the machine shop, L.S. and another sailor came to the door, looking for
the applicant. They were upset because the applicant had danced with a woman in
town. W.D. stated that he did not witness the stabbing, but heard that the applicant
stabbed L.S. after L.S. attacked him.
29 R.R.’s 194x statement is summarized on page 22. A statement he signed for the Coast Guard in 1999 is
summarized on page 34.
30 Summaries of two audiotaped telephone interviews between R.E. and the applicant’s counsel appear
on page 37.
1996 Statement of P.V.31
P.V., a machinist’s mate on the Xxxxxxx, signed an affidavit prepared by an
attorney now working in the law firm of M.E.M., who is deceased. P.V. stated that
there was no racial segregation on board and “no demonstration of racial prejudice to
my knowledge.” He stated that there was no dance in Xxxxxxx; the sailors on leave just
went to the bars.
P.V. stated that the applicant returned from shore leave drunk and was making
noise and waking up sleeping sailors when L.S. got out of his bunk and told him to
keep quiet. As L.S. turned to walk away, the applicant stabbed him. P.V. and several
others “jumped on” the applicant and disarmed him. P.V. stated that it was L.S.’s duty
to keep order and that L.S. was “a very decent person and well liked by the crew.”
P.V. stated that, as an eyewitness, he was subpoenaed and had to stay in Xxxxx
to wait for the trial. He was later told that the applicant had “copped a plea” so there
would be no trial.
1996 Statement of Xxxxx Attorney on Territorial Judicial Process
The applicant also submitted an affidavit signed by an attorney who practiced in
the District Court for the Territory of Xxxxx in Xxxxx for many years. The attorney
stated that in Xxxxx at that time, the grand jury would normally meet only once per
year. Persons arrested outside of Xxxxx would be transferred there to wait. After they
were indicted by a grand jury, the judge would assign counsel to them at their arraign-
ments if they had not hired attorneys.
2000 Statement of J.P., a WWII Navy Veteran
The applicant submitted an affidavit from J.P., an attorney who served aboard
the U.S.S. Xxx during World War II as a seaman first class in the Navy. He stated that
during his service, he underwent a deck court-martial for being absent without leave for
one day and a summary court-martial for falling asleep while on watch. He alleged
that, when he was being processed for discharge in 194x, the yeoman who typed his
discharge papers stated that he would include the summary court-martial but not the
deck court-martial. J.P. received an honorable discharge and therefore was eligible for
veterans’ benefits.
31 P.V.’s 194x statement to the F.B.I. is summarized on page 20. The applicant’s counsel conducted a
telephone interview with P.V. and prepared a different affidavit, which P.V. did not sign. Excerpts from
that unsigned affidavit appear in Appendix B on page B-14.
RECENT AFFIDAVITS SUBMITTED BY THE COAST GUARD
In his advisory opinion to the BCMR, the Chief Counsel of the Coast Guard
submitted affidavits signed by crewmembers in 1999. Excerpts of these statements,
which are summarized below, appear in Appendix C to this decision.
1999 Statement of R.B.32
R.B. stated that he had refused to sign the affidavit prepared by the applicant’s
counsel because “it misrepresented my observations and opinions regarding the inci-
dent.” He further stated that he was in his bunk when the applicant entered the berth-
ing compartment, followed a while later by L.S. The two “started to throw punches at
each other.” R.B. estimated that L.S. hit the applicant four or five times before the
applicant opened his locker to get his knife. L.S. continued to hit the applicant while he
was reaching into his locker. “Almost immediately,” the applicant stood up and
stabbed L.S. R.B. estimated that about 45 seconds elapsed between the time they started
swinging and when L.S. was stabbed. He stated that he “did not feel at any point that
the fight was out of control or that [he] or any of [his] other shipmates needed to sepa-
rate the two combatants for their own safety.” The fight was no worse than many oth-
ers he had seen on board until the applicant grabbed his knife. He stated that the stab-
bing happened too quickly for anyone to prevent. He further stated that at no time did
he see L.S. choking the applicant.
witnessed “no overt acts of racism.”
Regarding race relations, R.B. stated that the sailors were treated equally and he
1999 Statement of Ensign R.R., the Officer of the Day33
R.R. stated that the applicant was “standing up and able to walk to the ward-
room after the incident.” R.R. stated that he saw no one hit the applicant and did not
notice any injuries to him. He also stated that the applicant had never expressed any
concern for his safety, either before or after the stabbing. R.R. further stated that he
does not remember the sailors ever pointing one of the ship’s guns at the jailhouse. He
stated that he absolutely would have been informed if they had done so, and the inci-
dent would have been noted in the ship’s log.
32 A summary of an audiotaped telephone interview between the applicant’s counsel and R.B. appears on
page 38. Excerpts of a statement prepared by the applicant’s counsel, which R.B. refused to sign, appear
in Appendix B on page B-12.
33 R.R.’s 194x statement to the F.B.I. is summarized on page 22. The affidavit he signed in 1996 is
summarized on page 31.
1999 Statement of P.M.34
P.M., a lieutenant serving as the Xxxxxxx’s gunnery officer, stated that he was
asleep in his stateroom during the fight between L.S. and the applicant. He was told
that the stabbing had happened too fast for anyone to stop. He did not know the appli-
cant but knew L.S. to be a good man and superior performer. P.M. called W.R.’s state-
ment about sailors pointing a gun at the jailhouse a “pure fabrication.” He stated that
as the gunnery officer, he would have known if such an incident had occurred, and
there is “no possibility” that it did.
Regarding race relations on board, P.M. stated that there were no adverse inci-
dents or problems and that the black and white sailors worked, ate, and slept side by
side.
AUDIOTAPES SUBMITTED BY THE APPLICANT35
Audiotape of Interview with L.N.36
In a 1996 telephone interview with the applicant’s counsel, L.N. stated that he
heard that the applicant and L.S. got into a brief argument while on liberty because they
were both dancing with the same “native girl.” He stated that when he saw the appli-
cant on the ship, he told him to go tell the Officer of the Day what had happened. L.N.
stated that nothing would have happened if the applicant had done so, but he did not.
He said that when the applicant was on the floor by his footlocker, L.S. tried to get him
to stand up. When the applicant stood up, L.N. saw him put his arm over L.S.’s back
and stab him. When told that the applicant went to prison, L.N. said, “He should have
served time.” However, L.N. also said, “Had the black not had the knife, the killing
might have gone the other way.” He also said that nobody expected the stabbing and
that drinking “had a lot to do with it.” He said it happened so quickly that “[i]t was
over before it started.”
L.N. stated that he remembers being questioned about the stabbing but he does
not remember who questioned him. He said that whoever questioned him was not
34 A summary of an audiotaped telephone interview between P.M. and the applicant’s counsel appears
on page 36.
35 In none of the recorded telephone conversations submitted by the applicant’s counsel were the inter-
viewees informed that they were being taped. During the conversations, the applicant’s counsel some-
times described the facts of the case in accordance with the applicant’s allegations. At the end of the tele-
phone interviews, the applicant’s counsel asked some of the veterans if they would be willing to sign
statements prepared by the counsel based on their conversations.
36 L.N.’s 194x statement to the F.B.I. is summarized on page 18. Excerpts of the statement prepared by
the applicant’s counsel based on this interview, which L.N. did not sign, appear in Appendix B on page
B-13.
happy with his answers and that some people had drunk an “awful lot” of alcohol and
were “covering their butts.”
Audiotape of First Interview with F.R.37
In a 1996 telephone interview with the applicant’s counsel, F.R. said that he
would not sign an affidavit he received from the applicant’s counsel because there was
no point in “broadcasting” certain things. He said that a statement about the crew
wanting to hang the applicant from a totem pole should be deleted and that another
statement about people chasing the applicant was not true. He said that he saw people
looking for the applicant, not chasing him, and that they asked another sailor, not him,
where the applicant was. When the applicant’s counsel told him that his statement to
the F.B.I. contradicted his current version of events, F.R. said that he “may be halluci-
nating” and that he really does not remember what happened anymore.
Audiotape of Second Interview with F.R.
In a 2000 telephone interview conducted by an assistant of the applicant’s coun-
sel, who identified herself only as a “student” researching military history, F.R. stated
that he had heard that the fight started because L.S. did not “appreciate” the applicant
dancing with a white woman in a bar on shore. He said that he had heard that, back on
board the Xxxxxxx, L.S. chased the applicant, who ran to his footlocker, got a knife, and
stabbed L.S. F.R. said that when he got back to the ship that night, some sailors were
talking about hanging the applicant, so he turned out the lights to calm them down. He
stated that there was a lot of ill feeling on board, and the captain sent the other black
crewmembers to the jail for their protection. He remembered that a lot of the sailors
were interviewed and signed statements. F.R. indicated that other members of the crew
with whom he had recently communicated did not remember the events as he did. He
said time is like a game of telephone in that the facts change a lot along the way.
Audiotape of Interview with the Widow of H.B.
In a 2000 telephone interview with the applicant’s counsel, the widow of a
crewmember, H.B., stated that her husband had told her about the stabbing. Her hus-
band had told her the fight occurred because all of the sailors were drunk and one black
sailor had danced with a white woman. She said that all the officers wore their guns
afterward and that her husband, who had been scheduled to leave the ship, had to stay
on longer because of the incident.
37 Excerpts of the statement prepared by the applicant’s counsel, which F.R. refused to sign, appear in
Appendix B on page B-13.
Audiotape of Interview with R.O.
In a 2000 telephone interview with the applicant’s counsel, R.O., a crewmember,
stated that he was not on board at the time of the stabbing but heard about it later. He
said that he was on liberty that night and had seen L.S. and the applicant a few times
but not together. He said that L.S. hated black people and that “anything would set him
off.” R.O. said that after the stabbing, other sailors beat up the applicant and that the
southerners were so angry they “were going to tear the place apart.” He said the cap-
tain posted guards on the dock and at the jailhouse because the southerners wanted to
lynch the applicant. He said no one tried to blow up the jail, but the other black sailors
were removed from the ship for their protection. R.O. characterized the applicant as a
“nasty bastard” and an “arrogant bastard.” The recording submitted into evidence
ends before the end of the telephone conversation.
Audiotape of Interview with A.A.38
In a 2000 telephone interview with the applicant’s counsel, A.A. repeatedly
stated that he cannot remember what happened. He stated that he did not know L.S. or
the applicant very well, but R.Y. was a friend of his. In response to the attorney’s ques-
tions, he indicated that he did not remember seeing them argue or even being on board
at the time of the stabbing. He also did not remember R.Y. getting into trouble on the
night of the stabbing or being interviewed by an F.B.I. agent. He said he remembered
hearing that the captain ordered the ammunition stored below decks to prevent further
trouble. He stated that the officers were afraid of a riot after the “murder.”
Audiotape of Interview with P.M.39
In a 1996 interview with the applicant’s counsel, P.M., an officer on the Xxxxxxx,
stated that he had never heard about the fight between L.S. and the applicant starting
on shore after the applicant danced with a woman until the applicant’s counsel
informed him of this. He stated that he had been told that the fight started when L.S.
and the applicant disagreed about a “mutual friend” who was a steward’s mate, which
he thought was “kind of ridiculous” but explained by the fact that they had been
drinking. P.M. also stated that he had not heard that L.S. was beating the applicant
“savagely” before the stabbing. He heard that L.S. was telling the applicant to “stand
up and fight like a man” when the latter rose and stabbed him. After the stabbing, he
stated, the captain had the applicant removed from the ship quickly for his protection.
P.M. stated that he was very “rattled” when he was questioned by the Coast
Guard Board of Investigation and mixed up the times and details because he had not
38 A.A.’s 194x statement to the F.B.I. is summarized on page 17.
39 P.M.’s 1999 statement submitted by the Coast Guard is summarized on page 34.
slept since the day before. He does not remember speaking to an F.B.I. agent. He stated
that because the ship was tied up to the pier, the Coast Guard did not have jurisdiction
over the case. He further stated that, because none of the officers on the Xxxxxxx had
experience with conducting a general court-martial, it would not have been fair to try
the applicant on board.
Audiotape of Interview with R.Y.
to talk about his service in the Coast Guard, refused to talk and hung up the phone.
In a 1996 telephone conversation with the applicant’s counsel, R.Y., when asked
Audiotape of First Interview with R.E.40
In a 1996 telephone interview with the applicant’s counsel, R.E. stated that he
heard that L.S. got into an argument with about five black sailors on shore because they
were dancing with white women. He said that they kept arguing all the way back to
the ship and started fighting when they got below decks. He said he did not witness
the fighting and was at his bunk in another compartment when he heard a commotion
and learned that L.S. had been stabbed. R.E. stated that after the fight, the captain
transferred all the black sailors off the ship for their protection. He also stated that the
ship was not integrated and that the black sailors were required to sleep separately in
the galley.
When R.E. referred to previous trouble the applicant had gotten into, his counsel
denied it. The counsel told R.E. that the applicant had been beaten so badly, he could
not stand up and his back was broken. R.E. concluded that the applicant should get an
honorable discharge because the stabbing was “self-defense.”
Audiotape of Second Interview with R.E.
In a 2000 telephone interview with the applicant’s counsel, R.E. stated that he
was on liberty that night but did not see anything happen on shore. He was in his bunk
about to go to sleep when he heard the commotion. He got up and saw R.S. trying to
save L.S. Afterward, he went back to sleep. R.E. said the crew was sad about the killing
and that it would be an exaggeration to say that they “went crazy.” However, he said
some of the southerners would probably have gone after the other black sailors. He
stated that the “scuttlebutt” was that the captain transferred the other black sailors off
the ship for their protection. R.E. said he did not remember an F.B.I. investigation.
Audiotape of Interview with H.M.
40 R.E.’s 1996 affidavit based on this interview is summarized on page 32.
In a 1996 telephone interview with the applicant’s counsel, H.M. stated that
when he returned to the ship after being on liberty in Xxxxxxx, the captain was on deck
and told him to go to his bunk. He said when he got below, he saw L.S.’s body lying on
a footlocker and was told he had been murdered. He said he was never questioned by
the F.B.I. H.M. stated that he had thought the ship was headed “home,” but instead it
sailed to China.
Audiotape of Interview with R.B.41
In an undated telephone interview with the applicant’s counsel, R.B. said that he
heard that L.S., the jack of the dust who was “getting stuff for the cooks,”42 was coming
up the gangway when he and the applicant bumped into each other and got into “a lit-
tle todo.” He said he was in Xxxxxxx on liberty that night and does not remember
seeing or hearing about any incident over a woman. He said he was lying in his bunk
when L.S. chased the applicant into the sleeping compartment. R.B. said he saw L.S. hit
the applicant a couple of times before the latter dropped to his knees and reached into
his footlocker. He said L.S. hit him once or twice more before the applicant rose to his
feet and stabbed L.S. in the back. He said the other sailors had started to get out of their
bunks to see what was happening when the applicant got hold of his knife to defend
himself.
After the stabbing, R.B. said, the Officer of the Day arrived with his weapon on
his belt and told everyone to stand aside. R.B. said he himself was a gunner’s mate and
soon went on watch.43 He could not recall speaking to any “law enforcement” about
the incident.
NEWSPAPER ARTICLES
Account of Coroner’s Inquest in the Xxxxxxx Xxxxxx
The applicant submitted a copy of an article in the Xxxxxxx Xxxxxx dated Mon-
day, October 28, 194x. The article states that the applicant had difficulty answering the
questions of the judge and the F.B.I. agent at the inquest and seemed “dazed and
uncomprehending.” The article quotes R.W. as having stated at the coroner’s inquest
that the quarrel arose due to the applicant having kicked L.S. “earlier in the evening.”
The newspaper attributed the following quotation to R.W.:44
41 Excerpts of the statement prepared by the applicant’s counsel based on this interview, which R.B. did
not sign, appear in Appendix B on page B-12. A signed 1999 statement by R.B. submitted by the Coast
Guard is summarized on page 33.
42 The “jack of the dust” was the crewmember responsible for the ship’s stores.
43 The applicant’s counsel did not ask this interviewee about the alleged plan by some sailors to fire on
the jailhouse.
44 R.W.’s 194x statement to the F.B.I. is summarized on page 16.
We came aboard and were going down to turn in when we saw three fellows standing in
the passageway arguing. One of them was [the applicant] who turned and ran when he
saw [L.S.]. [L.S.] caught up with him and kicked him. I caught up with [L.S.] and [L.S.]
almost stopped. I went into compartment 201 and there was no one there. I went into
compartment 203 and found [the applicant] standing there with an iron pipe about ten
inches long in his hand. It’s a wrench used to tighten the dogs on the hatches. I talked
him out of the pipe and promised to talk to [L.S.]. [The applicant] promised me he’d hit
the sack if I could get [L.S.] to do the same.
The article reports that R.W. then stated that he later found the applicant arguing
with someone else near the bunks with a sheathed knife in his hand. R.W. said he told
the applicant “to put the knife away or I would use the iron pipe on him.” R.W. stated
that the applicant put the knife away in his footlocker.
According to the article, R.W. testified that he warned L.S. that the applicant had
a knife but that L.S. again “went after” the applicant, who “to avoid him, circled around
a tier of bunks, back to the locker where he had put the knife and dropped to one knee
before it. He thrust his arm into the locker while [L.S.] was standing above him pulling
at him and trying to get the negro to ‘stand up and fight like a man.’” R.W. testified
that the applicant then warned L.S. that he had a knife and began to stand up and that
he saw the applicant “put his left arm around [L.S.’s] neck, pull him toward him and
drive the knife three times into [L.S.’s] back.”
The article states that R.A. and R.D. also testified and indicated that the applicant
and L.S. had been drinking but were not drunk. R.A. stated that he heard L.N. tell the
applicant to go to the Officer of the Day for protection prior to the stabbing.
The article also states that “[s]ome seamen aboard the ship said the crime was
[the] result of several days quarreling between [the applicant and L.S.] and that [L.S.]
had been ‘picking on’ the negro. Final quarrel is said to have started at a local cocktail
bar.” The article states that the applicant and other black sailors were being kept in the
Xxxxxxx jail for their protection.
Account of Coroner’s Inquest in the Xxxx Xxxxx Xxxxx
The applicant also submitted a copy of an article about the coroner’s inquest that
appeared in the Xxxx Xxxxx Xxxxx on Thursday, October 31, 194x. The article states
that the applicant had been charged with first-degree murder by a coroner’s jury on
Monday afternoon for stabbing L.S. It states that R.W. and R.D. testified that the stab-
bing “was the outcome of an incident earlier in the evening when [the applicant] kicked
[L.S.] in the stomach.” The article further reports the testimony at the inquest as fol-
lows:
Following shore leave, [L.S.] looked up [the applicant] to settle the score. Witnesses said
both men had been drinking but were not drunk. [L.S.] chased [the applicant] through
sleeping quarters, hitting and kicking him. The Negro picked up an iron bar which
[R.W.] took away, then [the applicant] promised to go to bed if [R.W.] would urge [L.S.]
to do the same.
Minutes later [R.W.] saw [the applicant] by the bunk with a knife in its sheath and told
him to put the knife away. [The applicant] put the knife in the locker, and [R.W.]
warned [L.S.] that [the applicant] had a knife, but [L.S.] seemed not to understand and
started again for [the applicant], who circled the tier of bunks around to the locker where
he dropped to one knee.
Meanwhile, [L.S.], trying to pull [the applicant] to his feet, was telling him to get up and
fight like a man. The Negro rose, put his left arm around [L.S.] and drove the knife three
times in [L.S.’s] back. …
The article states that the applicant, who had been held in the Xxxxxxx jail with
three other black sailors for safekeeping, was arraigned on Tuesday and “bound over to
the Grand Jury to be tried in Xxxxxxx or Xxxxx.”
Death Penalty Research Article
As evidence of racism in the justice system in the Territory of Xxxxx, the appli-
cant submitted part of an article in the Xxxxxxxxxxxxxxxxxx on capital punishment in
the territory. The article states that, of the eight men executed in the territory between
1900 and 1957, only two were white Americans, although most of the murders in the
territory were committed by white Americans. Of the other six men executed, three
were “Natives,” two were black, and one was from Montenegro (Yugoslavia).
CORRESPONDENCE
Letter of the Deputy Chief of the Coast Guard’s Congressional Affairs Staff
In 1993, the Deputy Chief of the Coast Guard’s Congressional Affairs Staff
responded to a letter from Senator xxxxxxxxxxxxxx regarding the applicant’s unde-
sirable discharge. The Deputy Chief wrote the following:
[The applicant] was convicted of manslaughter in Federal Court in the Territory of Xxxxx
in 194x. As a result of this conviction, he was awarded an Undesirable Discharge by the
Coast Guard in accordance with service directives. … The Undesirable Discharge was
based on the Federal conviction, which the Coast Guard has no authority to overturn.
Should [the applicant’s] Federal conviction for manslaughter be overturned, he may seek
a reconsideration of his case by the Board for Correction of Military Records based on
this new information. …
Unavailability of Grand Jury Proceedings
On June 5, 1996, the Justice Department informed the applicant’s counsel that,
“under Federal Rule of Criminal Procedure 6(e) grand jury minutes can be disclosed
only ‘when so directed by a court * * * in connection with a judicial proceeding.”
GOVERNOR’S PARDON
On October 16, 1997, the applicant’s counsel signed an Application for Executive
Clemency on his behalf. The form states that it “may be used in applying for any type
of Executive Clemency, including a pardon, commutation of sentence, or remission of a
fine or forfeiture.” In support of his application, he submitted all of the 1996 affidavits
and an almost completely illegible copy of the 194x F.B.I. report.45
On October 16, 1997, the Attorney General of the State of Xxxxx recommended
that the application be granted. He based his recommendation on the following
grounds: (1) The applicant had “served his sentence nearly a half century ago”; (2) the
applicant had “led an exemplary life since release from custody”; and (3) the applicant
had been injured and might become eligible for “certain government benefits” if clem-
ency were granted. He further stated that he did not believe the applicant received inef-
fective assistance of counsel or improper judicial procedure, but he stated that “racial
animosity no doubt contributed to the incident leading to his conviction.”
On November 6, 1997, the Honorable xxxxxxxxxxxxxxxx, Governor of Xxxxx,
signed a decree regarding the applicant’s request for pardon. The decree states the
following:
WHEREAS, [the applicant] was convicted and sentenced for the crime of man-
WHEREAS, [the applicant] has lead an exemplary life since his release from
WHEREAS, [the applicant] was sentenced to a term of five years, all of which has
slaughter …
been served; and,
custody in 194x; and,
[the applicant] acted in self-defense during a racially motivated attack; and
WHEREAS, recently sworn affidavits from several eyewitnesses indicate that
45 A reasonably readable copy of the F.B.I. report was obtained by the Chief Counsel of the Coast Guard
in June 1999. The copy the applicant received from the F.B.I. and submitted to the Governor and to the
BCMR is almost completely illegible. The F.B.I. told the applicant that the copy he received was the most
readable copy available but was later able to produce a significantly more readable copy for the Coast
Guard. The BCMR sent a copy of this readable copy of the F.B.I. report to the applicant’s counsel on July
30, 1999.
WHEREAS, it appears that [the applicant] is a fit subject for a pardon on this
WHEREAS, the incident leading to the conviction of [the applicant] occurred
during the unusual conditions of wartime, and many eyewitnesses to the incident were
unavailable to testify because their military duties took them far from Xxxxx; and,
sentence; and,
NOW THEREFORE, BE IT KNOWN, THAT I, xxxxxxxxxxxxxxx, GOVERNOR of
the State of Xxxxx, in consideration of the above facts and other good and sufficient
reasons made known to me, do hereby grant a pardon on this case; … .
The applicant also submitted a copy of a videotape of the press conference at
which the Governor signed his pardon. Governor xxxxxxxxx stated that the affidavits
gathered by the applicant’s counsel show that the fight started because the applicant
danced with a white or Native American woman at a nightclub in Xxxxxxx. He quoted
from the 1996 statement of N.S. and said that twelve of the affidavits state that the stab-
bing was committed in self-defense. He did not mention the F.B.I. report. He said that
there was no proof of any wrongdoing by the court in 194x and that, under the circum-
stances, the applicant’s attorney “may have served [him] well” in recommending that
he plead guilty to manslaughter. He stated that he hoped the pardon would convince
the Coast Guard to upgrade the applicant’s discharge. The three members of the
Executive Clemency Board, the applicant’s counsel in Xxxxx and Xxxxxxx, and the
applicant’s sons also spoke briefly, thanking the Governor for pardoning the applicant.
VIEWS OF THE COAST GUARD
opinion in which he recommended that the Board deny the applicant’s request.
On June 30, 1999, the Chief Counsel of the Coast Guard submitted an advisory
NO JURISDICTION TO COURT-MARTIAL
The Chief Counsel denied the applicant’s allegation that the Coast Guard com-
mitted an injustice by handing over the applicant to civilian authorities for prosecution.
The Chief Counsel stated that the Coast Guard had to do so because, under the Articles
and regulations governing the Navy and Coast Guard at the time, the Coast Guard had
no jurisdiction to try a member for murder or manslaughter. Thus, he argued, both
statutes and regulations required the Coast Guard to deliver the applicant over to the
custody of the territorial authorities.
PARDON HAS NO LEGAL EFFECT ON THE DISCHARGE
The Chief Counsel alleged that the pardon granted to the applicant by the Gov-
ernor of Xxxxx had no legal effect on the applicant’s discharge. “[A]n executive action
on the part of a State’s Executive is insufficient as a matter of law to overturn a federal
administrative action, especially where the federal action has been long settled.”
The Chief Counsel compared the applicant’s position to that of the petitioner in
Thrall v. Wolfe, 503 F.2d 313 (7th Cir. 1974), cert. denied, 420 U.S. 972 (1975), whose par-
don by the Governor of Montana was determined not to erase his conviction for the
purpose of being eligible for a federal license to sell firearms. The Chief Counsel stated
that because the court in Thrall “concluded that the issue is not the effect of a pardon
within the jurisdiction of the granting sovereign but rather the effect of the pardon
within the federal sovereign …, the Board need not decide what recognition Xxxxxn
State authorities would give to [the applicant’s] pardon.” The Chief Counsel stated that
the Thrall court concluded that a state pardon does not “relieve a person of federal dis-
abilities resulting from a state conviction.”
The Chief Counsel also noted that the Full Faith and Credit Clause of the Con-
stitution applies only to the states and that “allowing state action to independently
change a federal action is contrary to the federal supremacy doctrine.”
The Chief Counsel cited two federal Circuit Court of Appeals cases from Xxxxx
and one from the D.C. Circuit Court of Appeals that followed the holding in Thrall. He
argued that the decisions in United States v. Bergeman, 592 F.2d 533, 534 (9th Cir. 1979),
United States v. Potts, 528 F.2d 883 (9th Cir. 1975), and Yacovone v. Bolger, 645 F.2d 1028
(D.C. Cir. 1981), establish that “it is the fact of the state conviction that is important for
federal purposes, not how the state subsequently elects to treat that conviction short of a
judicial reversal.” Therefore, the Chief Counsel argued, the applicant’s undesirable dis-
charge on the basis of his conviction is not affected by the Governor’s pardon.
DOCTRINE OF LACHES SHOULD BAR CLAIM
The Chief Counsel argued that, because the Coast Guard acted properly in
handing the applicant over to territorial authorities and because the pardon has no legal
effect on the applicant’s discharge, the Board can only grant relief if it finds on the basis
of the record that the undesirable discharge was unjust. He alleged that the applicant’s
killing of L.S. and other documented misconduct fully supported the Coast Guard’s
decision to award the applicant an undesirable discharge “by reason of misconduct due
to trial and conviction by civil authorities.”
Therefore, the Chief Counsel argued, the only possible basis for upgrading the
applicant’s discharge is if the facts show that the incident occurred as a result of racism
and that the applicant was a victim of racial injustice. However, by delaying his appli-
cation for over 50 years, the applicant has waited until many of the witnesses have died
and the still living witnesses may have forgotten what happened. The Chief Counsel
alleged that the Xxxxxxx’s commanding officer, executive officer, and engineering offi-
cer (who was the applicant’s supervisor) are deceased. Also deceased are the appli-
cant’s attorney, M.E.M., the investigating F.B.I. agent, the Deputy U.S. Marshall for
Xxxxxxx, Xxxxx, the prosecutor, the judge, and the court reporter. Therefore, the gov-
ernment “is unable to determine the validity of the Applicant’s various assertions of
racial animus and lack of due process because that information went to the graves with
the deceased witnesses.”
The Chief Counsel alleged that the unreliability of recently gathered witnesses’
statements is shown by the fact that two witnesses whose eyewitness accounts appear
in the 194x F.B.I. report stated that they could not recall being interviewed by the F.B.I.
when interviewed by the applicant’s counsel. Furthermore, there are significant con-
tradictions between what some witnesses reported to the F.B.I. five days after the inci-
dent and what the same witnesses told the applicant’s counsel in 1996. For example,
contradicting what they told the applicant’s counsel in 1996, neither the applicant nor
J.M., who accompanied him while on liberty in Xxxxxxx the evening before the stab-
bing, told the F.B.I. agent that the applicant had met and argued with L.S. in a bar.
Instead, the applicant indicated to the F.B.I. agent that their argument began in a pas-
sageway after they had returned to the ship. J.M. mentioned to the agent that the appli-
cant had danced with a white woman, but stated that it was the woman who told the
applicant she did not want to dance with him again because he had drunk too much
alcohol. The Chief Counsel also pointed out that, in his description of their evening in
Xxxxxxx to the F.B.I. agent, J.M. did not mention encountering L.S. at all.
The Chief Counsel further alleged that, other than the pardon, the evidence pre-
sented by the applicant was previously available to him if he had exercised due dili-
gence. The denial of his petition by the Board of Review, Discharges and Dismissals in
1951, the Chief Counsel argued, put the applicant on notice that he would need to pre-
sent substantial evidence to have his discharge upgraded. Yet the applicant did nothing
for over 40 years and then failed to submit substantial evidence again when he finally
applied to the BCMR in 1991. The Chief Counsel pointed out that the applicant could
have sought the help of a legal aid clinic years ago, but waited until 1996 to seek the
help of the students at the Xxxxx University law school clinic who gathered the evi-
dence and prepared his application.
Therefore, the Chief Counsel argued, the doctrine of laches should apply to bar
the applicant’s claim because he presented no valid excuse for the delay and his delay
prejudiced the Coast Guard’s ability to gather evidence.46
UNDESIRABLE DISCHARGE FULLY JUSTIFIED
The Chief Counsel alleged that the applicant was properly awarded an undesir-
able discharge in 194x under Article 584(4) of the 1940 Personnel Manual because he
had been convicted by a civil authority and sentenced to confinement in a penitentiary.
Therefore, the Coast Guard committed no error in this respect.
However, the Chief Counsel argued, even setting aside the conviction, “the
determination that he should receive an Undesirable Discharge was valid based on his
service record and misconduct.” The Chief Counsel alleged that the “Governor’s action
was essentially an act of clemency and does not eliminate the fact that Applicant killed
a shipmate with a knife.” That fact and his prior record of misconduct “fully support
his Undesirable Discharge.”
The Chief Counsel argued that Coast Guard regulations directed undesirable
discharges for both misconduct and unfitness. “Unfitness” could be established by
repeated petty offenses, shirking, and moral turpitude,47 and the Commandant could
discharge a member for unfitness without recourse to a board if the member had the
opportunity to present a written statement on his own behalf.48 The Chief Counsel
alleged that the applicant had two opportunities to make such a statement, the first to
the F.B.I. and the second (which he waived upon the advice of counsel) to the Coast
Guard Board of Investigation. Therefore, the Chief Counsel argued, the Coast Guard
had the authority to award the applicant an undesirable discharge based on his prior
record alone, which included a summary court-martial for an earlier stabbing of another
member of the Coast Guard, two non-judicial punishments for misconduct, an extended
period of being AWOL, and below average performance and conduct marks. The Chief
Counsel alleged that the Coast Guard may have refrained from discharging the appli-
46 Cornetta v. United States, 851 F.2d 1372, 1377 (1988); Deering v. United States, 620 F.2d 242, 245 (1980);
Frommhagen v. United States, 573 F.2d 52, 56 (1978), cert. denied, 440 U.S. 909 (1979); and Brundage v. United
States, 504 F.2d 1382, 1384 (Ct. Cl. 1974), cert. denied, 421 U.S. 998 (1975).
47 United States Coast Guard, PERSONNEL MANUAL, Art. 4615 (1940).
48 Id. Art. 585.
cant earlier because its policy during the war was not to discharge members who com-
mitted misconduct, so that members would not be motivated to commit misconduct
just to get discharged.
The Chief Counsel stated that current corresponding regulations properly base
the character of discharge awarded to a member on the underlying misconduct record-
ed in his performance evaluation, rather than on the civilian legal consequences of the
misconduct, over which the Coast Guard has no control.49 Under Article 12.B.2.f.3. of
the current Personnel Manual, he alleged, the applicant would have been subject to an
administrative discharge for misconduct even without the conviction, although the term
“undesirable discharge” has been replaced by the phrase “discharge under other than
honorable conditions” (OTH). The Chief Counsel concluded that “by any rational stan-
dard, the Applicant would have been subject to an Undesirable Discharge by adminis-
trative proceedings in 194x notwithstanding his manslaughter conviction.”
EVIDENCE DISPROVES SELF-DEFENSE
The Chief Counsel argued that the record fully supports the applicant’s convic-
tion for manslaughter. “Ordinary voluntary manslaughter involves the intentional
killing of another while under the influence of an induced emotional disturbance caus-
ing a temporary loss of normal self-control. Except for this emotional condition, the
intentional killing would be murder,” the Chief Counsel argued.50 He further argued
that “where two persons willingly engage in mutual combat, and, during the fight one
kills the other as the result of an intention to do so formed during the struggle, the
homicide has long been held to be manslaughter, and not murder, the notion being
[that] the suddenness of the occasion, rather than some provocation by the victim, miti-
gates the intentional killing to something less than murder.”51
The Chief Counsel alleged that the record proves that the applicant willingly
engaged in combat with L.S. by shoving and kicking him in the passageway, searching
for weapons to use, exchanging punches with him in the berthing compartment, and
finally seeking and using his knife to kill L.S. In addition, the evidence indicates that
the applicant did not attempt to ward off L.S. with the knife. Moreover, the Chief
Counsel alleged that, in contradiction to the applicant’s allegation that he was being
choked, the evidence proves that as soon as he found his knife, he stood up, faced his
unarmed victim, and lunged over his back to stab him three times. The Chief Counsel
argued that “[t]hese facts do not fit within any objective basis for the defense of self-
defense. The Applicant intentionally used a deadly weapon to stab and kill [L.S.] sud-
49 United States Coast Guard, PERSONNEL MANUAL (COMDTINST M1000.6A), Art. 8.B.4.b. (1999).
50 Commonwealth v. Flax, 200 A. 632 (1938).
51 W. LaFave et al., CRIMINAL LAW § 7.10(b)(4) (2d ed. 1986).
denly during the incident. His guilty plea to manslaughter was consistent with the facts
and appropriate under the law.”
The Chief Counsel argued that “[u]nder the common principles of self-defense,
one who is not the aggressor in an encounter is justified in using a reasonable amount of
force against his adversary when he reasonably believes (a) that he is in immediate
danger of unlawful bodily harm from his adversary and (b) that use of such force is nec-
essary to avoid danger.” The Chief Counsel further argued that “[i]t is never reasonable
to use deadly force against a non-deadly attack.”52 Deadly force, he alleged, may only
be used in self-defense “if he reasonably believes that the other is about to inflict unlaw-
ful death or grievous bodily harm upon him.”53
The Chief Counsel argued that the applicant’s use of deadly force was not justi-
fied because, when he stepped away from L.S. to open his locker, there was no clear and
present threat to his life. He alleged that the record shows that only four or five
punches had been thrown prior to the stabbing and that the applicant sustained no seri-
ous injuries or injuries to his neck. Moreover, he pointed out, while the applicant had a
bad reputation, L.S. had a spotless record in conduct.54 Therefore, the Chief Counsel
concluded, there is no evidence that the applicant’s life was in danger or that he had a
reasonable basis to believe his life was in danger.
VOLUNTARY INTOXICATION BARS DEFENSE OF SELF-DEFENSE
Furthermore, the Chief Counsel stated, one who honestly but unreasonably
believes in the necessity of using deadly force to prevent death or grievous bodily harm
loses the defense.55 Therefore, “[v]oluntary intoxication deprives the defendant of a
bona fide claim of self-defense, which requires that the defendant appraise the situation,
as would a reasonable sober man.56 Thus, the Chief Counsel alleged that the applicant
cannot assert the defense of self-defense if his belief in the necessity of using deadly
force was unreasonable or induced by his voluntary intoxication.
The Chief Counsel alleged that, based on J.M.’s statement to the F.B.I., the appli-
cant drank half a pint, or eight ounces, of whisky between 5:45 and 11:00 p.m. on the
52 CRIMINAL LAW § 5.7
53 Beard v. United States, 158 U.S. 550 (1895).
54 L.S.’s military record contains no negative entries. From his enlistment on February 25, 194x, until his
death, he received 16 perfect conduct marks of 4.0.
55 CRIMINAL LAW § 5.7(c).
56 Springfield v. State, 11 So. 250 (1892); Golden v. State, 25 Ga. 527 (1858).
evening before the stabbing. Therefore, since he weighed approximately 135 pounds,
the applicant’s blood-alcohol content was probably about 0.1573.57
APPLICANT’S RESPONSE TO THE COAST GUARD’S
ADVISORY OPINION
On January 27, 2000, the Board received the applicant’s response to the Chief
Counsel’s advisory opinion. The applicant reiterated his argument that because his
undesirable discharge was based on an unjust, “constitutionally infirm” conviction that
has been vacated, the character of his discharge was unjust.
The applicant further argued that the evidence considered by the Governor of
Xxxxx who pardoned his conviction included a copy of the 194x F.B.I. report that “was,
with effort, readable” and that the enhanced copy of the report received by the Coast
Guard “only strengthens [his] case.” He also stated that the Coast Guard’s “version of
events” is based entirely on the 194x F.B.I. report. That report, he alleged, “was fatally
tainted by racism, fear and a desire, on the part of the Xxxxxxx’s officers and crew, to
distance themselves from the events.”
ALLEGATIONS CONCERNING THE ORIGINS OF THE FIGHT
Regarding the genesis of the fight, the applicant alleged that it “was a racially
charged confrontation that occurred earlier that evening on shore.” He alleged that the
events related by sailors in the F.B.I. report were “concocted out of that same racial
animosity in order to shield certain crewmembers from potential negative repercus-
sions.” He stated that the recent affidavits and taped interviews of N.S., L.B., W.R.,
W.D., R.E., J.M., L.N., and F.R. prove that the F.B.I.’s statements were false and that the
fight started because L.S. was angry that the applicant had danced with a white or
Native American woman. The applicant argued that, while time does dull memories, it
is impossible for all of these witnesses to have identical false memories about the onset
and motivation for the fight. Therefore, their recent statements prove that the nature of
the fight was as the applicant alleged and not as indicated in the F.B.I. report. In addi-
tion, he pointed out that an October 194x account of the incident in the Xxxxxxx Xxxxxx
(see page 44) indicates that the fight started in the bar and not in a corridor on the ship.
Moreover, the applicant argued, the statements by the F.B.I.’s witnesses to the
alleged incident in the corridor should be discredited. He submitted a tape of a
recorded interview between A.A. and his attorney in which A.A. stated that he did not
return to the ship at all until an hour after the stabbing and that he never spoke to an
57 The Coast Guard used the formula of the National Highway Traffic and Safety Administration at
http://www.nhtsa.dot.gov/people/injury/alcohol/bacreport.html to calculate the applicant’s alleged
blood-alcohol content.
F.B.I. agent. Therefore, the applicant alleged, A.A.’s detailed statement in the 194x F.B.I.
report about the incident in the corridor “is totally devoid of credibility.”
The applicant stated that R.W.,58 another sailor who described the incident in the
corridor to the F.B.I., was a friend of L.S. and had threatened the applicant. Moreover,
he characterized R.W.’s statement to the effect that L.S. and the applicant had not met
while on shore as an “out of the blue” assertion like that of a “child that volunteers his
innocence to his mother before questioned.” In addition, the applicant pointed out dis-
crepancies between R.W.’s statement to the F.B.I. and a reporter’s account of R.W.’s tes-
timony at the coroner’s inquest. Therefore, he argued, R.W.’s description of the incident
in the corridor lacks credibility, and all of R.W.’s testimony to the F.B.I. should be con-
sidered questionable.59
Furthermore, the applicant alleged that the F.B.I. agent who took the sailors’
statements and filed the complaint against the applicant was complicit in the witnesses’
lies. He alleged that the agent, who was present at the inquest, must have known that
R.W.’s account of the events at the inquest (as reported in the Xxxxxxx Xxxxxx) differed
from his sworn statement to the F.B.I. Thus, the applicant stated that the F.B.I. agent
suborned perjury in accepting R.W.’s contradictory testimony.
The applicant stated that the F.B.I. report proves that F.Z., who also described the
incident in the corridor, held a grudge against the applicant, who had once told him to
get back in the mess line. F.Z.’s statement, the applicant argued, should be discredited
as “a dim and silly story.” He further stated that the sailors’ description of the incident
in the hall was “ridiculous,” as P.M. stated in his interview.
The applicant also argued that his own 194x statement to the F.B.I. about the
onset of the fight in the corridor is “suspect.” He said the report shows that the “pur-
ported statement” was obtained during a four-hour “sweat him out” interrogation with
no counsel present between 9:30 p.m. and 1:30 a.m. on October 31, 194x. He alleged that
the statement “must have undergone a good deal of editing” because it was short
enough to have been written in five minutes. The applicant also stated that his descrip-
tion of the incident in the corridor is more credible than those of the other sailors
because it shows L.S., the larger of the two, initiating the fight and the applicant, who
was smaller, running away. Furthermore, the applicant stated, the evidence indicates
that L.S. passionately hated African Americans and that the applicant would never have
initiated a fight with L.S. because L.S. was so big. The applicant alleged that attacking
such a large man would have been “lunacy,” and the F.B.I. report indicates that neither
he nor L.S. was “drunk.”
58 The applicant submitted a copy of an obituary indicating that R.W. died in 1993.
59 See Hargrave v. Stockloss, 21 A.2d 820, 823.
Finally, the applicant alleged that R.Y., who according to the F.B.I. report was
supposedly the drunken cause of the shoving match in the hall, did not make a state-
ment to the F.B.I. for the report and now “refuses to talk.”
ALLEGATIONS CONCERNING THE END OF THE FIGHT
Regarding the remainder of the fight, the applicant argued that the F.B.I. report
verifies his claim that L.S. intended to do him “great bodily harm.” The applicant
stated that several sailors told the F.B.I. that L.S. and four or five others had “hunted”
for the applicant and threatened to kill or hurt him if they found him. The applicant
further stated that his and the other sailors’ statements to the F.B.I. prove that he went
to his bunk and began “settling in for the night” when R.W. and E.G. began threatening
him.
The applicant alleged that the accounts in the F.B.I. report of his brandishing a
pipe and then retrieving his knife from his trunk are untrue and the result of the crew-
members’ attempts to deflect blame from L.S. and themselves. Moreover, even if he did
brandish the pipe or the knife, he argued, it would have been justifiable under the cir-
cumstances. He alleged that the sailors’ accounts show that, if he did pick up the pipe
and the knife, he voluntarily disarmed himself of both weapons, manifesting a “peace-
ful intent.”
The applicant alleged that the F.B.I. report shows that R.W. told him L.S. had
gone to bed. Thus, he alleged, “[i]t sounds like [R.W.] was setting [the applicant] up for
the kill: trying to lull [the applicant] into a sense of security in order to render him
defenseless for the surprise entry of [L.S.].” Moreover, the applicant stated, if he
refused to seek the protection of the Officer of the Day, as L.N. indicated, it was proba-
bly because he doubted that officer’s ability or willingness to protect him.
The applicant argued that the statements in the F.B.I. report prove that, when
L.S. found him in his sleeping compartment, he tried to run but finally retreated to his
bunk, where L.S. cornered him, got him in a chokehold, and beat and kicked him. He
alleged that, given the disparity in their sizes and L.S.’s racial hatred, he justifiably
feared for his life, since a single punch can kill someone and there was no indication
that L.S. would stop before he was dead. In addition, the applicant alleged that he had
reason to fear injury at the hands of the other sailors who had hunted and threatened
him along with L.S. Therefore, he argued, since he reasonably feared for his life, had
retreated “to the wall,” and had warned L.S. that he had the knife, his use of deadly
force to defend himself was completely justified.60 In light of these facts, he stated, it is
60 XXXXX STAT. § 11.81.335; Owens v. United States, 130 F. 279, 281 (Ct. App. 1904).
clear that he acted in self-defense and that he should never have been charged with
murder.61
The applicant pointed out that several sailors told the F.B.I. that neither the
applicant nor L.S. was drunk. This evidence, he alleged, contradicts the ship’s doctor’s
finding that the applicant was “moderately intoxicated” three hours after the fight. He
also stated that the Coast Guard miscounted the number of shots of whiskey the appli-
cant had drunk when it calculated his blood-alcohol level. He stated that the evidence
indicates he had drunk only five or six shots, rather than eight. Therefore, he argued,
the Coast Guard’s allegation that he is barred from asserting self-defense due to volun-
tary intoxication is without merit. He also argued that the two cases cited by the Coast
Guard for this proposition, Springfield v. State, 11 So. 250 (1892), and Golden v. State, 25
Ga. 527 (1858), are old and would not have been controlling in the U.S. District Court
for the Territory of Xxxxx or if the applicant had been tried by court-martial. Moreover,
the applicant stated that the Coast Guard’s argument suggests that anyone who gets
drunk relinquishes the right to defend himself from attack and is “fair game” for any-
one who wants to assault them, which is wrong. Finally, the applicant argued that the
“totality of the evidence strongly suggests that [he] was not intoxicated at the time of
the attack. At least not intoxicated to the level where he could not tell if he were about
to be beaten to the point of serious injury or death.”
ALLEGATIONS CONCERNING THE MEDICAL EVIDENCE
The applicant alleged that the report of the ship’s doctor in the F.B.I. report and
the newspaper account of the applicant’s behavior at the inquest prove that he had been
assaulted and suffered some type of neurological damage. He alleged that the modern
medical opinion submitted by the Coast Guard is untenable and ignores the fact that
being choked with a forearm does not leave a mark on someone’s neck, as does being
choked with hands and fingers. Moreover, he alleged, the expert’s conclusion that his
life was not in jeopardy is untenable since, even if the applicant had dodged every
potentially deadly punch and kick by L.S., he could have escaped without a mark
despite having his life placed in jeopardy.
The applicant alleged that during the fight, his spine was injured and he was
“beat to a pulp,” in contradiction to the report of the ship’s doctor. This injury, he
alleged, made him unable to perform hard labor in prison for more than a week, so he
was transferred to a prison hospital in Florida for treatment. He alleged that he later
underwent five operations on his back and has a limp.
61 The applicant also alleged that the U.S. Attorney who handled his case was later disgraced by his
involvement in a protection scheme in which he took money from a Xxxxxxx brothel.
ALLEGATIONS CONCERNING THE AFTERMATH OF THE FIGHT
The applicant alleged that the 1999 affidavit of R.R., denying having seen the
crew beat up the applicant, contradicted R.R.’s 194x statement to the F.B.I., in which he
said he saw three or four sailors hitting the applicant, and contradicted other sailors’
statements that as the Officer of the Day, R.R. stopped the crew’s attack on the appli-
cant. He also alleged that R.R.’s statement that he drew his gun to use as a club “strains
credibility.”
The applicant alleged that after he was beaten, white sailors formed a lynch mob,
looked for rope, and “attempt[ed] to lynch all the black sailors on the ship.” He alleged
that the lynching was only prevented by the officers, who put the black sailors off the
ship and “locked them up for their own safety.” He alleged that the captain had to
order extra security watches, prevent sailors from leaving the ship, and post sentries at
the jail in Xxxxxxx to prevent further violence and keep the southern sailors from
lynching the applicant.
In addition, the applicant alleged that the evidence indicates that crewmembers
actually plotted to fire on the jail and that the captain had to lock up the ammunition to
keep them from doing so. He alleged that crewmember R.Y.62 was probably involved
in the attempt to fire on the jail because he was placed on report that night for disor-
derly conduct. Although the ship’s log indicates that R.Y. was placed on report 10
minutes before the applicant was taken off the ship, he alleged that the log must be
inaccurate.63 He also alleged that “something as grave as pointing artillery at American
territory would not [have been] broadcast in the ship’s log.” In the alternative, he
argued that R.Y. may have been put on report for trying to lynch the applicant.
The applicant further alleged that, “[a]s the ship pulled out [of Xxxxxxx] local
law enforcement must have sighed with relief. Quite possibly people were informed
that they could once again come out of their basements. The terror was over.”
ALLEGATIONS CONCERNING THE INVESTIGATION
62 In the F.B.I. report, R.Y. is identified as the very drunk crewmember who was being helped on board
by A.A. when they met the applicant in the corridor.
63 As further evidence of the log’s inaccuracy, the applicant pointed to the fact that the F.B.I. report noted
that the Coast Guard’s Board of Investigation convened on October 29 and 30, 194x, but the log only
mentions crewmembers leaving the ship to attend the Board of Investigation on October 29th. He also
pointed out that J.M. remembers being taken by seaplane from Xxxxxxx to Xxxxx without returning to the
Xxxxxxx, whereas the ship’s log indicates that the black crewmembers returned to the ship and made the
trip from Xxxxxxx to Xxxxxxx on board. In addition, he alleged that the log fails to mention the fact that
one crewmember repeatedly jumped overboard one night. Therefore, he alleged, it is clear that the log
was censored before being typed and sent to the Bureau of Naval Personnel.
The applicant alleged that the statements of the officers and crewmembers in the
F.B.I. report reveal only half of the truth. He alleged that the officers did not tell the
whole truth because they feared how it could affect their careers and wanted to save the
ship’s honor. He alleged that even today, some of the officers and sailors are not telling
the truth about what happened to preserve the ship’s honor. He alleged that the
enlisted men did not tell the F.B.I. the truth for fear of criminal sanctions or disciplinary
measures and also to save the reputation of the ship. He alleged that several of them
refused to sign affidavits prepared by his counsel for their signature to preserve the
ship’s reputation and to avoid getting involved.
The applicant alleged that the desire of the sailors in 194x not to get themselves
or each other in trouble and the officers’ desire to avoid repercussions caused them to
conspire together to omit some facts, such as the fight beginning on shore when the
applicant danced with a white woman, and to invent other facts, such as the fictional
origin of the fight in the corridor. He alleged that the abridged truth of the F.B.I. report
is proved by the lack of an affidavit from R.Y., the sailor whose extreme drunkenness,
according to the F.B.I. report, triggered the incident in the corridor. He also alleged that
many sailors failed to tell the truth in 194x because they wanted to stay on the ship,
which was sailing to China, rather than stay in Xxxxx until the trial.
Therefore, the applicant alleged, the sailors conspired to place the entire blame
on the applicant. He alleged that his friend, J.M., also placed the blame on the applicant
because he was afraid he might have to continue serving on the Xxxxxxx and feared he
would be lynched if he told the truth. He also alleged that fear of lynching caused the
black sailors to tell the F.B.I. agent they had experienced little overt racism while on
board.
The applicant alleged that the investigation was further flawed by the actions of
the F.B.I. agent. He alleged that the agent ignored discrepancies in R.W.’s testimony
and must have omitted crucial information from the report. He alleged that the agent’s
investigation of race relations on board was only “cursory.” In addition, he alleged, the
agent overzealously charged the applicant with murder. He concluded that the agent
was either a “bungler” or a part of the conspiracy to set up the applicant.
ALLEGATIONS CONCERNING THE 194x COURT-MARTIAL
The applicant alleged that the stabbing for which he was court-martialed in 194x
was also committed in self-defense. He alleged that it occurred when he got into an
argument with another black sailor, C.C., at a USO dance. He alleged that C.C. hit him
over the head with a bottle and that he only drew his knife and “cut him on the arm in
which he held the bottle” to prevent C.C. from hitting him again. He alleged that C.C.
“was not seriously injured.”
ALLEGATIONS CONCERNING THE NAVY
The applicant alleged that the Navy ordered the Xxxxxxx to sail to the Far East
instead of to a home port to avoid having the truth about the incident revealed. He also
alleged that the Navy had jurisdiction over the case but wrongfully handed him over to
civilian authorities. He alleged that the Board of Review, Discharges and Dismissals
admitted that the Navy had jurisdiction in its 1951 report on the applicant’s case.
ARGUMENTS CONCERNING THE PARDON
The applicant alleged that, while the Governor’s pardon may have no legal effect
on the character of his discharge, “logic dictates that the undesirable discharge should
be null and void.” He argued that the authority to pardon persons convicted in the
District Court for the Territory of Xxxxx devolved to the Governor under the Xxxxx
Statehood Act. Moreover, he alleged, contrary to the Coast Guard’s view, the pardon
fully exonerated him and erased his guilt.64
ARGUMENTS CONCERNING THE DOCTRINE OF LACHES
The applicant reiterated his arguments concerning the timeliness of his applica-
tion. In addition, he argued that it is unfair for the Coast Guard to argue that the case
should be dismissed under the doctrine of laches after the Deputy Chief of the Congres-
sional Affairs Staff indicated in his letter of 1993 that his discharge could be upgraded if
his conviction were overturned. Moreover, he argued that the Coast Guard has not
been prejudiced by the delay because there is more evidence now, due to the efforts of
the applicant’s counsel, than there would have been had the applicant been properly
tried in 194x when most of the witnesses were in the Far East.
ARGUMENTS CONCERNING DUE PROCESS
The applicant reiterated his arguments concerning the lack of due process
accorded him. He alleged that he was not assigned counsel soon enough, since he was
initially charged with a capital offense, and that he never actually appeared in court.
He also argued that the indictment was fraudulent because the three surviving witness-
es do not remember appearing before a grand jury, as indicated on the indictment. He
alleged that, because the Xxxxxxx sailed off to the Far East with most of the witnesses
and left only hostile witnesses behind, the applicant had no chance of a fair defense.
Moreover, he could not have afforded to pay for their travel back to Xxxxx if he had
succeeded in getting the court to issue subpoenas for them.
64 State of Alaska v. T.M. & J.B., 860 P.2d 1286, 1290 (Ct. App. 1993).
In light of these circumstances, the applicant argued, even if the Board believes
he did plead guilty, such a plea cannot be considered a waiver of his right to a fair trial
since he had no opportunity to prepare a meaningful defense: “By pleading guilty,” he
alleged, he “was doing nothing more than acknowledging the loss of rights that had
already been effectively denied.”
COAST GUARD’S SUPPLEMENTAL RESPONSE
On May 5, 2000, the Chief Counsel of the Coast Guard submitted a supplemental
response to the applicant’s further allegations and evidence. The Chief Counsel argued
that the applicant still had not proved by a preponderance of the evidence that his man-
slaughter guilty plea or undesirable discharge were in error or unjust.
The Chief Counsel argued that “[t]he central issue in this case is not whether
Applicant was criminally guilty of manslaughter for his actions of October 27, 194x, but
whether Applicant’s record of unsatisfactory conduct and performance over his entire
service tenure provided the Coast Guard with a sufficient administrative basis to dis-
charge him with an Undesirable Discharge.” He alleged that the applicant’s record
clearly provided the Coast Guard with that sufficient basis. Moreover, he argued, the
Board should conclude, based on the record, that no trier of fact should attempt to
reweigh evidence and overturn a conviction in a case settled 55 years ago. The Coast
Guard’s ability to respond to the applicant’s allegations has been extremely prejudiced,
he alleged, by the death of witnesses, human forgetfulness, and lost documents. He
also alleged that the applicant has not provided any rationale for excusing his long
delay in applying for relief. Therefore, the Board should deny the case under the doc-
trine of laches.65
The Chief Counsel alleged that, regardless of the stabbing for which the appli-
cant was convicted of manslaughter, the remainder of his record, “standing alone, con-
stituted a reasonable basis for the assignment of an Undesirable Discharge.” In addi-
tion to the applicant’s previous disciplinary problems, he alleged, the applicant consis-
tently earned below average marks during his service and “received notably adverse
marks for the last three marking periods of his active-duty service.” He pointed out
that the last marking period ended on September 30, 194x, before the stabbing, so those
low marks were not even affected by the incident. He stated that the applicant’s final
average marks of 2.39 in proficiency and 2.91 for conduct were below the average mark
of 3.3 (on a scale of 4.0) and that any mark below a 3.0 was considered unsatisfactory.
In light of these marks and the applicant’s record, the Chief Counsel argued, his unde-
sirable discharge was amply justified under Articles 459, 585, or 4592 of the Personnel
Manual then in effect even without consideration of his manslaughter conviction.
65 See Cornetta v. United States, 851 F.2d 1372, 1377 (1988); Deering v. United States, 620 F.2d 242, 245 (Ct. Cl.
1980); Frommhagen v. United States, 573 F.2d 52, 56 (1978), cert. denied, 440 U.S. 909 (1979).
The Chief Counsel compared this case to that of the applicant in BCMR Docket
No. 1999-087.66 In BCMR Docket No. 1999-087, the applicant received an undesirable
discharge in 194x because he was tried and convicted in a civilian court for interfering
with police officers when they tried to arrest a woman he was with. He was sentenced
to 30 days’ confinement. In addition, his record indicated two periods of being AWOL.
The Chief Counsel argued that this other case shows that the applicant’s record in this
case, which is much worse than that of the applicant in BCMR Docket No. 1999-087,
amply justified his undesirable discharge. Therefore, he argued, under Sawyer v. United
States, the applicant’s undesirable discharge cannot be considered “treatment by mili-
tary authorities that shocks the sense of justice” and should not be altered by the
Board.67
The Chief Counsel further argued that, under a July 5, 1976, directive of the Gen-
eral Counsel, the Board should not upgrade a discharge unless it believes that the dis-
charge was too severe in light of today’s standards. He alleged that under today’s stan-
dards and regulations, Coast Guard members who disobey orders, go AWOL, and fight
with knives are tolerated even less than they were in 194x. Therefore, he argued, the
Board should conclude that the applicant has not proved he was eligible for an honor-
able discharge under either 194x or modern standards.
APPLICANT’S FINAL RESPONSE
On July 19, 2000, the Board received the applicant’s final response in this case.
The applicant characterized the Coast Guard’s contention that he would not have
received an honorable discharge even if he had not been convicted of manslaughter as
“pure speculation.” He stated that many “human elements” could have affected the
character of the applicant’s discharge. As an illustration of what could have happened,
he attached to his response the affidavit of J.P., a seaman on the U.S.S. Xxx during
World War II, who alleged that at the time of his discharge, a yeoman at his base
decided to ignore his deck court-martial for one day of being AWOL and list only his
summary court-martial for sleeping while on watch. As a result of that decision, J.P.
received an honorable discharge.
66 At the time the Chief Counsel wrote this response, the Board had not yet reached a final decision in
BCMR Docket No. 1999-087. The Board signed a final decision denying relief in that case on November
30, 2000.
67 Sawyer v. United States, 18 Cl. Ct. 860, 868 (1989), rev’d on other grounds, 930 F.2d 1577 (Fed. Cir. 1991)
(citing Reale v. United States, 208 Ct. Cl. 1010, 1011 (1976)).
SUMMARY OF APPLICABLE LAW
BCMR STATUTES, REGULATIONS, AND POLICIES
Under 10 U.S.C. § 1552, the Board may correct a member’s or veteran’s military
record when such a correction is considered “necessary to correct an error or remove an
injustice.” In performing this function, the Board has “an abiding moral sanction to
determine insofar as possible, the true nature of an alleged injustice and to take steps to
grant thorough and fitting relief.”68
33 C.F.R. § 52.67(a)(2) provides that the Board shall reconsider an application if
an applicant requests it and the applicant “presents evidence or information that the
Board, or the Secretary as the case may be, committed legal or factual error in the origi-
nal determination that could have resulted in a determination other than that originally
made.” Section 52.67(b) provides that the Board shall docket a request for consideration
if it meets the requirements of Section 52.56(a)(2).
33 C.F.R. § 52.67(e) provides that “[a]n applicant’s request for reconsideration
must be filed within two years after the issuance of a final decision, except as otherwise
required by law. If the Chairman dockets an applicant’s request for reconsideration, the
two-year requirement may be waived if the Board finds that it would be in the interest
of justice to consider the request despite its untimeliness.”
On July 8, 1976, the General Counsel of the Department of Transportation estab-
lished the following policy concerning the upgrading of discharges:
[T]he Board should not upgrade discharges solely on the basis of post-service conduct. …
This emphatically does not mean that the justness of a discharge must be judged by the
criteria prevalent at the time it was rendered. The Board is entirely free to take into
account changes in community mores, civilian as well as military, since the time of dis-
charge was rendered, and upgrade a discharge if it is judged to be unduly severe in light
of contemporary standards. …
JURISDICTION OVER STABBING
The Articles of War69
The applicant cited the Articles of War, rather than the Articles for the Govern-
ment of the United States Navy, to support his allegation that he should have been
court-martialed. However, Article 2 of the Articles of War provides that they do not
apply to “any person under the United States naval jurisdiction unless otherwise spe-
68 Caddington v. United States, 178 F. Supp. 604, 607 (Ct. Cl. 1959).
69 Lee S. Tillotson, ARTICLES OF WAR ANNOTATED (3d rev. ed. 1944).
cifically provided by law.” Article 12 of the Articles of War (predecessor to the Uniform
Code of Military Justice) provided that “[g]eneral courts-martial shall have power to try
any person subject to military law for any crime or offense made punishable by these
articles … .” The accused in a court-martial is entitled to summon witnesses, whose
transportation costs and expenses are reimbursed. Military members who refuse to
appear to testify at a court-martial are subject to punishment under Article 23.
Article 92 of the Articles of War provided that “no person shall be tried by court-
martial for murder or rape committed within the geographical limits of the States of the
Union and the District of Columbia in time of peace.” The Territory of Xxxxx is outside
this geographical area. Therefore, under the Articles of War, a military service could
court-martial a servicemember charged with murder while in the Territory of Xxxxx or
deliver him over to civilian authorities.
Because the Articles of War did not define murder or manslaughter, military
courts used common law definitions.70
Articles for the Government of the United States Navy 1930 (2d ed. 1944)71
Article 6 of the Articles for the Government of the United States Navy stated that
“[i]f any person belonging to any public vessel of the United States commits the crime
of murder without the territorial jurisdiction thereof, he may be tried by court-martial
and punished with death.” Article 7 provided that such persons could also be punished
by imprisonment for life or for a stated term at hard labor.
Coast Guard Regulations—Jurisdiction
During World War II, the Coast Guard functioned under the auspices of the
Navy, pursuant to 14 U.S.C. §§ 1, 3. The Coast Guard continued to function as part of
the Navy until January 1, 194x.72 Article 39 of the 1935 Coast Guard Courts and Boards
manual provided the following:
Whenever, in time of war, the Coast Guard operates as a part of the Navy in accordance
with law, the personnel of that service shall be subject to the laws prescribed for the gov-
ernment of the Navy: Provided, That in the initiation, prosecution, and completion of dis-
ciplinary action, including remission and mitigation of punishments for any offense
committed by any officer or enlisted man of the Coast Guard, the jurisdiction shall
depend upon and be in accordance with the laws and regulations of the department
having jurisdiction of the person of such offender at the various stages of such action. …
70 United States v. Sargent, 18 M.J. 331, 335-36 (1984).
71 Lee S. Tillotson, ARTICLES OF WAR ANNOTATED (3d rev. ed. 1944).
72 Exec. Order No. 9666 (December 28, 1945).
Therefore, at the time of the stabbing, the Coast Guard and its members were
subject to the Navy’s regulations in the Naval Courts and Boards and to the Articles for
the Government of the United States Navy. However, Coast Guard regulations gov-
erned the applicant’s discharge in April 194x.
Article 21 of the 1935 Coast Guard Courts and Boards manual defines the juris-
diction of Coast Guard courts over various offenses. Murder and manslaughter are not
listed. Article 23 specifies that, “[f]or offenses against the laws of the United States
other than those specified (in article 21, Coast Guard Courts and Boards), offenders
shall be turned over to the civil authorities for trial (U.S.C., title 14, sec. 144).”
Article 242 of the 1935 Coast Guard Courts and Boards manual states as follows:
If murder, felony, or other crime or offense against the laws of the United States, not
punishable by Coast Guard courts, be committed on board of or at any Coast Guard unit
within the jurisdiction of the United States, the commanding officer, or the officer in
charge, as the case may be, shall invoke the aid of and deliver the offender to the civil
authorities, to whom he shall afford all the facilities in his power. If such crime be com-
mitted at sea or without the limits of the United States, he shall confine and safely guard
the offender until he can deliver him to the proper civilian authorities of the United
States.
Article 351 of the 1935 Coast Guard Courts and Boards manual states that “such
crimes as murder, manslaughter, larceny, arson, burglary, and robbery are not within
the jurisdiction of Coast Guard courts … .”
Navy Regulations—Jurisdiction
Article 33 of the 1937 Naval Courts and Boards manual (194x edition) states that
the Navy shall have jurisdiction over crimes committed by members of the Coast
Guard, “when serving as part of the Navy in time of war or national emergency.” Arti-
cle 335 states that the jurisdiction of naval courts over offenses is prescribed by the Arti-
cles for the Government of the Navy.
Article 336 of the manual states that Article 6 of the Articles for the Government
of the United States Navy “precludes a court martial taking jurisdiction of murder com-
mitted within the territorial jurisdiction of the United States.” Murder was defined in
Article 53 of the manual as “the unlawful killing of a human being with malice afore-
thought.” Article 53 further provided the following:
Malice does not necessarily mean hatred or personal ill will toward the person killed, nor
an actual intent to take his life, or even to take anyone’s life. The use of the word ‘afore-
thought’ does not mean that the malice must exist for any particular time before commis-
sion of the act, or that the intention to kill must have previously existed. It is sufficient
that it exist at the time the act is committed.
Under Chapter 10 of the manual, a board of inquiry or investigation was con-
vened after any homicide to collect evidence and examine witnesses. Under Articles
723 and 734, a suspect had to be informed of his rights and assigned counsel prior to
appearing before a board. The board members made preliminary findings of fact and
could recommend disposition of a case to the convening authority, such as a ship’s cap-
tain.
CHARACTER OF DISCHARGE
194x Coast Guard Regulations—Discharge
The applicant was discharged from the Coast Guard in 194x after it had reverted
to the Department of the Treasury and operated under its own rules. Article 584(4) of
the 1940 Regulations for the United States Coast Guard provided that undesirable dis-
charges be awarded for unfitness (shirkers, alcoholics, repeat petty offenders, bad debts,
etc.) or for misconduct, which included “[t]rial and conviction by a civil court when he
has been sentenced to confinement in a jail or penitentiary for any period, regardless of
the fact that such sentence may have been suspended or that he may have been placed
on probation.”
Dishonorable and bad conduct discharges were awarded pursuant to a court-
martial only.
Honorable discharges were awarded under any of five conditions: expiration of
enlistment; convenience of the government; hardship; minority (age); and disability not
the result of own misconduct.
A general discharge could be awarded “for the same [five] reasons as an honor-
able discharge and issued to individuals whose conduct and performance of duty have
been satisfactory but not sufficiently deserving or meritorious to warrant an honorable
discharge.”
Under Article 4592 of the 1934 Personnel Instructions of the Coast Guard, a
member was required to have average marks of at least 2.75 for proficiency and 3 for
conduct to be considered to have an “honorable” character of service.
2001 Coast Guard Regulations—Discharge
Today’s standards for discharge appear in Article 12-B-2(f) of the Personnel
Manual (COMDTINST M100.6A). An enlisted member may receive an honorable dis-
charge if his or her service is characterized by “[p]roper military behavior and proficient
performance of duty with due consideration for the member’s age, length of service,
grade, and general aptitude”; and if the member’s final average evaluation mark is at
least 2.7 (out of 4.0) for performance of duty and at least 3.0 for conduct.
A member may receive a general discharge if he has been involved with illegal
drugs or if his evaluation marks for job performance or conduct have not met the stan-
dards for an honorable discharge.
A member may receive a discharge under other than honorable conditions
(OTH) for misconduct or security concerns or upon the approval of the recommenda-
tion of an administrative discharge board or in lieu of trial by court-martial. A bad
conduct discharge is the equivalent of an OTH discharge but is directed by an approved
sentence of a court-martial. A member may receive a dishonorable discharge only by
an approved sentence of a court-martial.
Members today are also assigned a reason for discharge, as well as a character of
discharge. Under Article 12-B-18(b)(1) of the Personnel Manual, a member may be dis-
charged by reason of misconduct if he or she is convicted by a civilian court of “an
offense for which the maximum penalty under the Uniform Code of Military Justice is
death or confinement in excess of 1 year … .”
CRIMINAL LAW
1933 Compiled Laws of Xxxxx
Section 4757 of the Compiled Laws of Xxxxx, 1933, provided that “[w]hoever,
being of sound memory and discretion, purposely, and either of deliberate and pre-
meditated malice or by means of poison … kills another, is guilty of murder in the first
degree, and shall suffer death.”
Section 4759 provided that “[w]hoever purposely and maliciously, except as
provided in the last two sections [which concern justifiable homicide], kills another, is
guilty of murder in the second degree, and shall be imprisoned in the penitentiary not
less than fifteen years.”
Section 4760 provided that “[w]hoever unlawfully kills another, except as pro-
vided in the last three sections [which concern justifiable homicide and negligent homi-
cide], is guilty of manslaughter and shall be imprisoned in the penitentiary not more
than twenty nor less than one year.”
Section 4764 provided that “[e]very killing of a human being by the culpable
negligence of another, when such killing is not murder in the first or second degree, or
is not justifiable or excusable, shall be deemed manslaughter, and shall be punished
accordingly.”
Section 4766 provided that “[t]he killing of a human being is … justifiable when
committed by any person as follows: First. To prevent the commission of a felony
upon such person … .” The section is annotated with the following explanations:
A homicide committed in actual defense of life or limb is excusable if it appear
that the slayer was acting under a reasonable belief that he was in imminent
danger of death or great bodily harm from the deceased and that his act in caus-
ing death was necessary in order to avoid the death or great bodily harm … .
Anderson vs. U. S. (1898) 170 U.S. 481, 42 L.Ed. 1116. …
An assault which will justify the homicide of the assailant must be something
more than an ordinary assault, and must be such as would lead a reasonable per-
son to believe that his life is in peril: Allen vs. U.S. (1896) 164 U.S. 492, 41 L.Ed.
528. …
The jury is not authorized to find a defendant guilty of murder because of his
having deliberately armed himself, provided he rightfully so armed himself for
purposes of self-defense, and if, independently of the fact of arming himself, the
case, tested by what occurred on the occasion of the killing, was one of man-
slaughter only: Gourko vs. U.S. (1893) 153 U.S. 183, 38 L.Ed. 680.
Section 4767 stated that a killing is excusable when committed “[b]y accident or
misfortune in the heat of passion, upon a sudden and sufficient provocation, or upon a
sudden combat, without premeditation or undue advantage being taken, and without
any dangerous weapon or thing being used, and not done in a cruel or unusual man-
ner.”
Section 5341 provided that “[n]o act committed by a person while in a state of
voluntary intoxication shall be deemed less criminal by reason of his having been in
such condition; but whenever the actual existence of any particular motive, purpose, or
intent is a necessary element to constitute any particular species or degrees of crime, the
jury may take into consideration the fact that the defendant was intoxicated at the time
in determining the purpose, motive, or intent with which he committed the act.”
Modern Criminal Law
Punitive Article 118 of the 1994 Manual for Courts-Martial states that “[a]ny per-
son … who, without justification or excuse, unlawfully kills a human being, when he (1)
has a premeditated design to kill; (2) intends to kill or inflict great bodily harm; …; or
…; is guilty of murder, and shall suffer such punishment as a court-martial may direct,
except that if found guilty under clause (1) or (4), he shall suffer death or imprisonment
for life as a court-martial may direct.”
Punitive Article 119(a) states that “[a]ny person … who, with an intent to kill or
inflict great bodily harm, unlawfully kills a human being in the heat of sudden passion
caused by adequate provocation is guilty of voluntary manslaughter and shall be pun-
ished as a court-martial may direct.” The discussion explains that the “[h]eat of passion
may result from fear or rage.”
Rule 916(e) states that “[i]t is a defense to a homicide, assault involving deadly
force, or battery involving deadly force that the accused: (A) Apprehended, on reason-
able grounds, that death or grievous bodily harm was about to be inflicted wrongfully
on the accused; and (B) Believed that the force the accused used was necessary for pro-
tection against death or grievous bodily harm.” The discussion explains that the first
element, (A), is an objective test. Therefore, “matters such as intoxication or emotional
instability of the accused are irrelevant. On the other hand, such matters as the relative
height, weight, and general build of the accused and the alleged victim, and the possi-
bility of safe retreat are ordinarily among the circumstances which should be consid-
ered determining the reasonableness of the apprehension of death or grievous bodily
harm.” The test for the second element, (B), is subjective. The accused’s emotional
control and intelligence are relevant in determining whether he or she actually believed
that force was necessary.
Rule 917(l)(2) states that voluntary intoxication is not a defense, though it may be
relevant as to the existence of intent. The discussion to the rule explains that
“[i]ntoxication may reduce premeditated murder to unpremeditated murder, but it will
not reduce murder to manslaughter or any other lesser offense.”
Section 210.2 of the Model Penal Code73 defines “murder” as criminal homicide
that is “committed purposely or knowingly” or “committed recklessly under circum-
stances manifesting extreme indifference to the value of human life.”
Section 210.3 of the Model Penal Code defines “manslaughter” as criminal homi-
cide that is “committed recklessly” or that “would otherwise be murder [but] is com-
mitted under the influence of extreme mental or emotional disturbance for which there
is reasonable explanation or excuse.”
Section 3.02 of the Model Penal Code explains “justification” as follows:
(1) Conduct which the actor believes to be necessary to avoid a harm or evil to himself or
to another is justifiable, provided that: (a) the harm or evil sought to be avoided by such
conduct is greater than that sought to be prevented by the law defining the offense
charged ….
73 American Law Institute, MODEL PENAL CODE, OFFICIAL DRAFT (1962).
(2) When the actor was reckless or negligent in bringing about the situation requiring a
choice of harms or evils or in appraising the necessity for his conduct, the justification
afforded by this section is unavailable in a prosecution for any offense for which reck-
lessness or negligence, as the case may be suffices to establish culpability.
Section 3.04(2)(b) of the Model Penal Code provides as follows:
The use of deadly force is not justifiable under this Section unless the actor believes that
such force is necessary to protect himself against death, serious bodily injury … ; nor it is
justifiable if: (i) the actor, with the purpose of causing death or serious bodily harm, pro-
voked the use of force against himself in the same encounter; or (ii) the actor knows that
he can avoid the necessity of using such force with complete safety by retreating … .
Case Law—Self-Defense
The applicant cited Owens v. United States, 130 F. 279 (9th Cir. 1904), in support of
his claim that he acted in self-defense. In Owens, the court overturned the conviction of
the petitioner for second-degree murder on the basis of a faulty jury instruction on self-
defense. The petitioner had stabbed a man who, he alleged, attacked him with a knife
in his cabin. The court held that the lower court, in its 18-page in jury instruction, indi-
cated that the jury was to determine the necessity of the killing and thus “ignored the
well-settled doctrine that, where one is attacked by another with a deadly weapon, the
party attacked may, if he does so honestly and in good faith, safely act in the light of his
surroundings, on the appearances to him at the time … .”74
In Anderson v. United States, 170 U.S. 481, 508 (1898), cited in Section 4766 of the
Compiled Laws of Xxxxx, 1933, the Court held that “a homicide committed in actual
defence of life or limb is excusable if it appear that the slayer was acting under a rea-
sonable belief that he was in imminent danger of death or great bodily harm from the
deceased, and that his act in causing death was necessary in order to avoid the death or
great bodily harm which was apparently imminent. But where there is manifestly no
adequate or reasonable ground for such belief, or the slayer brings on the difficulty for
the purpose of killing the deceased, or violation of law on his part is the reason of his
expectation of an attack, the plea of self defence cannot avail.”
In Allen v. United States, 164 U.S. 492, 498 (1896), also cited in Section 4766 of the
Compiled Laws of Xxxxx, 1933, the Court held that “to establish a case of justifiable
homicide it must appear that something more than an ordinary assault was made upon
the prisoner; it must also appear that the assault was such as would lead a reasonable
person to believe that his life was in peril.”
In Beard v. United States, 158 U.S. 550, 560 (1895), which was cited by the Chief
Counsel of the Coast Guard, the Court held that “the question for the jury was whether,
74 Owens v. United States, 130 F. 279, 282 (9th Cir. 1904).
without fleeing from his adversary, [the defendant] had, at the moment he struck the
deceased, reasonable grounds to believe, and in good faith believed, that he could not
save his life or protect himself from great bodily harm except by doing what he did,
namely, strike the deceased with his gun, and thus prevent his further advance upon
him.”
In Huber v. United States, 259 F. 766 (1919), after the defendant threw the
deceased’s clothes out of their cabin, the deceased hit him several times, backed him
onto a bunk, and began to choke him with both hands around his throat, at which point
the defendant reached for his gun and shot his attacker.75 The Ninth Circuit Court of
Appeals held that “if the defendant was forced back to his bunk and thrown down
upon it, and deceased was on top of him and choking him, and he really was ‘all in,’ as
he expressed it, or had reasonable ground to believe he was going to suffer great bodily
harm at the hands of the deceased, and that it was necessary to protect himself, the law
would justify Huber in using all means necessary to defend himself, even to the extent,
if reasonably necessary, of killing his assailant.”76 The court held that the plea of self-
defense was available to the defendant even if he willingly engaged in mutual combat
because “[i]t is not every ‘fault’ which a man might commit that precludes him from
defending himself when violently assaulted or menaced, nor is it every ‘provocation of
a difficulty’ which robs him of right of self-defense.”77
In Alaska v. Walker, 887 P.2d 971 (1994), the defendant stabbed one attacker once
in the arm and immediately thereafter stabbed another attacker thrice in the back,
“including two deep wounds to the chest that collapsed [the attacker’s] lungs,” possibly
believing that he faced attack by a larger group of men. He was convicted of assaulting
the second attacker but not the first.78 The judge threw out the verdicts, finding them
contradictory. The Court of Appeals of Alaska found that the jury’s verdicts were not
contradictory if the applicant’s use of force against one attacker was deemed reason-
able, but his use of force against the other was not. The court held that “[e]ven though a
person faces a threat of imminent death or serious physical injury, so that he or she is
legally entitled to use deadly force in self-defense, the law still requires that the force
used be no greater than necessary to avert the danger. … But even in circumstances
when a person is permitted to use deadly force in self-defense under [Alaska Statutes]
11.81.335, that person may still not be authorized to employ all-out deadly force because
such extreme force is not necessary to avert the danger.”79
In State v. Koutro, 210 N.C. 144, 146 (1936), the Supreme Court of North Carolina
held that “where one person strikes another with an open hand and commits a simple
75 Huber v. United States, 259 F. 766, 767 (1919).
76 Id. at 770.
77 Id. at 771 (quoting Foutch v. State, 95 Tenn. 711, 34 S.W. 423).
78 Alaska v. Walker, 887 P.2d 971, 976 (1994).
79 Id. at 978.
assault upon him or strikes him with his fist and there is no great difference in the size
of the parties, then the law would not permit that other person to take out a knife or any
deadly weapon and assault his aggressor. That is in keeping with when one is not per-
mitted to attack in simple assault. That principle does not apply where from a fierce-
ness of heart and difference in the size of the parties, the character of the parties, or
other surrounding circumstances, the person assaulted has reasonable grounds to
believe he is about to suffer death or great bodily harm.”
In State v. Born, 159 N.W.2d 283, 285 (Minn. 1968), the Supreme Court of Minne-
sota, in upholding the defendant’s conviction for assault with a dangerous weapon
where the defendant used only his fists and feet in hitting and kicking the victim, stated
that “where defendant pursued his victim as he sought to escape and, overtaking him,
used his fist to knock him to the floor and his feet to stomp him as he lay there without
effective means of defense, the jury could reasonably find that defendant employed an
instrumentality which was dangerous in the sense that the assault perpetrated was
likely to produce a protracted impairment of the functions of the members or organs of
the individual subjected to this extraordinary treatment.”
CRIMINAL PROCEDURE
1933 Compiled Laws of Xxxxx
Section 5166 of the Compiled Laws of Xxxxx, 1933, provided that all offenses tri-
able within the territory be brought before a grand jury of not less than 16 persons nor
more than 23. Section 5196 provided that at least 12 of the jurors, including the fore-
man, must endorse an indictment, and the indictment must be signed by the foreman.
Section 5219 provided that, to be legally sufficient, an indictment must indicate
the name of the court with jurisdiction over the offense; that the indictment was by
grand jury; the name of the defendant; that the crime was committed within the juris-
diction of the court; the approximate date of the crime; and the nature of the criminal
act, clearly described.
Section 5235 provided that, upon indictment, a defendant must be arraigned in
person and given a copy of the indictment along with a list of witnesses. Under Section
5236, he must be informed of his right to counsel before being arraigned and entering a
plea. Section 5243 provided that a defendant indicted for a felony “must be personally
present at the arraignment,” but someone indicted for a misdemeanor could appear by
counsel.
defendant in person, in open court … .”
Section 5280 provided that “[a] plea of guilty must in all cases be put in by the
Section 5423 provided that if an indigent defendant stated in an affidavit that
“there are witnesses whose evidence is material to his defense; that he can not safely go
to trial without them; what he expects to prove by each of them; that they are within the
district in which the court is held, or within one hundred miles of the place of trial; and
that he is not possessed of sufficient means and is actually unable to pay the fees of such
witnesses, the court, in term, or any judge thereof in vacation, may order that such wit-
nesses be subpoenaed if found within the limits aforesaid.” The United States would
pay such witnesses’ expenses.
Section 5424 provided the following:
Any judge or other officer who may be authorized to arrest and imprison or bail
any person charged with any crime or offense against the United States may, at
the hearing of such charge, require of any witnesses produced against the pris-
oner, on pain of imprisonment, a recognizance, with or without sureties, in his
discretion, for his appearance to testify in the case. And when the crime or
offense is charged to have been committed on the high seas, or elsewhere within
the admiralty and maritime jurisdiction of the United States, he may, in his dis-
cretion, require a like recognizance, with such sureties as he may deem neces-
sary, of any witness produced in behalf of the accused, whose testimony in his
opinion is important and is in danger of being otherwise lost.
Rules of Court
Division Number One, 1922, provided the following:
Rule 13 of the Revised Rules of the District Court for the Territory of Xxxxx,
In a criminal case where the court shall appoint an attorney to defend a poor per-
son on trial on a criminal charge in this court, the judge may, in his discretion,
after the trial has been concluded, make an allowance to such attorney for his
services therein, to be paid out of fund “C” on the court’s order, as a part of the
incidental expenses of the court, which allowance shall not exceed, (1) in misde-
meanor cases, $25.00; (2) in felony cases less than capital, $100.00; (3) in capital
cases, $250.00.
DUE PROCESS LAW
Grand Juries
The Fifth Amendment of the U.S. Constitution provides that “[n]o person shall
be held to answer for a capital, or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or public danger …”
In Costello v. United States, 350 U.S. 359 (1956), the Supreme Court stated that
“neither the Fifth Amendment nor any other constitutional provision prescribes the
kind of evidence upon which grand juries must act.” In Costello, the petitioner had been
indicted based on the hearsay evidence of the agents who had investigated his crime,
rather than on the witnesses whom the agents had interviewed. The Court held that the
indictment was valid.
Effective Counsel
The Sixth Amendment to the U.S. Constitution provides that, in all criminal
prosecutions, the accused has the right “to have the assistance of counsel for his
defense.” The U.S. Supreme Court has interpreted this provision to require that crimi-
nal defendants have “effective” counsel.80
In Powell v. Alabama, 287 U.S. 45 (1932), cited by the applicant, the petitioners
were seven black boys who had been riding on a railroad car with seven white boys and
two white girls. In a fight, the white boys were thrown off the train. After the Scotts-
boro sheriff stopped the train, the two white girls accused the petitioners of raping
them. The petitioners were indicted and arraigned six days later. The judge appointed
“all the members of the bar for the purpose of arraigning the defendants and then of
course anticipated that the members of the bar would continue to help the defendants if
no counsel appeared.”81 The petitioners were all from out of state and were not asked
whether they could employ counsel, wanted counsel appointed for them, or wanted to
contact their families. Six days later, at the start of the trial, “[n]o one answered for the
defendants or appeared to represent or defend them.”82 Therefore, the trial judge
approved a casual arrangement whereby the petitioners would be represented by an
out-of-state attorney, who stated several times that he would not represent the petition-
ers and was not prepared to do so, and the local members of the bar, who agreed to
“help” the out-of-state attorney.83 The petitioners were tried, convicted, and sentenced
to death in three separate trials lasting a single day each.84
The Supreme Court found that, “from the time of their arraignment until the
beginning of their trial, when consultation, thoroughgoing investigation and prepara-
tion were vitally important, the defendants did not have the aid of counsel in any real
sense, although they were as much entitled to such aid during that period as at the trial
itself.”85 The Court overturned the petitioners convictions, stating that, “the right to
80 See, e.g., Strickland v. Washington, 466 U.S. 668, 680-81 (1984); Polk Cty. v. Dodson, 454 U.S. 312, 326 (1981);
Spano v. New York, 360 U.S. 315, 326 (1959); and Michel v. Louisiana, 350 U.S. 91, 100 (1955).
81 Powell v. Alabama, 287 U.S. 45, 49 (1932).
82 Id. at 53.
83 Id. at 56.
84 Id. at 50.
85 Id. at 59-60.
counsel being conceded, a defendant should be afforded a fair opportunity to secure
counsel of his own choice. Not only was that not done here, but such designation of
counsel as was attempted was either so indefinite or so close upon the trial as to amount
to a denial of effective and substantial aid in that regard.”86
In Johnson v. Zerbst, 304 U.S. 458 (1938), cited by the applicant, the defendant had
informed the trial judge that he had no counsel but then said that he was ready for trial,
apparently unaware that he had a constitutional right to counsel.87 The Court held that
“[i]f the accused … is not represented by counsel and has not competently and intelli-
gently waived his constitutional right, the Sixth Amendment stands as a jurisdictional
bar to a valid conviction and sentence depriving him of his life or his liberty.”88
PARDON
The Xxxxx Statehood Act, xxxxxxxxx, P.L. 85-508, 72 Stat. 339, 48 U.S.C. prec. § 21
Governor’s Jurisdiction
(1999), provided for the following transfer of jurisdiction:
Section 13. [Continuation of suits] … [A]ll criminal offenses which shall have arisen or
been committed prior to the admission of said State … shall be subject to prosecution in
the appropriate State courts or in the United States District Court … . such of said crimi-
nal offenses as shall have been committed against the laws of the Territory shall be tried
and punished by the appropriate courts of said State, and such as shall have been com-
mitted against the laws of the United States shall be tried and punished in the United
States District Court for the District of Xxxxx.
Section 14. [Appeals] … All cases in which final judgment has been rendered in [the
District Court for the Territory of Xxxxx], and in which appeals might be had except for
the admission of such State, may still be sued out, taken, and prosecuted to the Supreme
Court of the United States or the United States Court of Appeals for the Ninth Circuit … .
Section 15. [Transfer of cases.] All causes pending or determined in the District Court for
the Territory of Xxxxx at the time of the admission of Xxxxx as a State which are of such
nature as to be within the jurisdiction of a district court of the United States shall be
transferred to the United States District Court for the District of Xxxxx … . All other
causes pending or determined in the District Court for the Territory of Xxxxx at the time
of the admission of Xxxxx as a State shall be transferred to the appropriate State court of
Xxxxx. …
Section 16. [Succession of courts.] Jurisdiction of all cases pending or determined in the
District Court for the Territory of Xxxxx not transferred to the United States District
Court for the District of Xxxxx shall devolve upon and be exercised by the courts of
86 Id. at 53.
87 Johnson v. Zerbst, 304 U.S. 458, 460 (1938).
88 Id. at 468.
original jurisdiction created by said State, which shall be deemed to be the successor of
the District Court for the Territory of Xxxxx … .
Section 21 of Article III of the Constitution of the State of Xxxxx states that “the
governor may grant pardons, commutations, and reprieves, and may suspend and
remit fines and forfeitures.”
Section 33.20.070 of Xxxxx Statutes states that “[t]he governor may grant par-
dons, commutations of sentence, and reprieves, and suspend and remit fines and for-
feitures in whole or part for offenses against the laws of the State of Xxxxx or the Ter-
ritory of Xxxxx.”
Legal Effect of Pardon
In United States v. Wilson, 32 U.S. 150, 160 (1833), the Supreme Court stated that a
“pardon is an act of grace, proceeding from the power entrusted with the execution of
the laws, which exempts the individual, on whom it is bestowed, from the punishment
the law inflicts for a crime he has committed.”
this definition as follows:
In Knote v. United States, 95 U.S. 149, 153-54 (1877), the Supreme Court expanded
A pardon is an act of grace by which an offender is released from the consequences of his
offence, so far as such release is practicable and within control of the pardoning power,
or of officers under its direction. It releases the offender from all disabilities emposed by
the offence, and restores to him all his civil rights. In contemplation of law, it so far blots
out the offence, that afterwards it cannot be imputed to him to prevent the assertion of
his legal rights. It gives to him a new credit and capacity, and rehabilitates him to that
extent in his former position. But it does not make amends for the past. It affords no
relief for what has been suffered by the offender in his person by imprisonment, forced
labor, or otherwise; it does not give compensation for what has been done or suffered,
nor does it impose upon the government any obligation to give it. The offence being
established by judicial proceedings, that which has been done or suffered while they
were in force is presumed to have been rightfully done and justly suffered, and no satis-
faction for it can be required. … However large, therefore, may be the power of pardon
possessed by the President, and however extended may be its application, there is this
limit to it, as there is to all his powers,--it cannot touch moneys in the treasury of the
United States, except expressly authorized by act of Congress.
In State v. Jacobson, 348 Mo. 258, 152 S.W.2d 1061, 1064 (1949), the Supreme Court
of Missouri held that the defendant could appeal his conviction, despite having already
been pardoned by the Governor, because the “fact that he was convicted remains,” even
though the Governor’s pardon stated that “I am convinced that this man is not guilty.”
In Thrall v. Wolfe, 503 F.2d 313 (7th Cir. 1974), the petitioner argued that the
Internal Revenue Service should grant him a license to sell guns because the Governor
of Montana had pardoned him for a 1942 felony conviction, for which he had been sen-
tenced to five years in prison. A statute prevented anyone who had been convicted of a
crime punishable by more than one year’s imprisonment from receiving such a license.
The U.S. Court of Appeals for the Seventh Circuit held that a state pardon has no
impact on a federal disability resulting from a state conviction.89
In United States v. Bergeman, 592 F.2d 533 (9th Cir. 1979), the defendant argued
that a federal statute making it unlawful for anyone who had been convicted of a crime
punishable by imprisonment for more than one year to receive a firearm that had been
shipped in interstate commerce did not apply to him because his prior conviction had
been expunged by the state of Idaho. The U.S. Court of Appeals for the Ninth Circuit
held that the state’s action did not affect the defendant’s convicted status for the pur-
poses of the federal statute.90
In Yacovone v. Bolger, 645 F.2d 1028 (D.C. Cir. 1981), the defendant was fired by
the U.S. Postal Service after being convicted for shoplifting. The Governor of Vermont
granted the defendant a full pardon. The D.C. Circuit Court of Appeals upheld the
defendant’s dismissal, finding that the pardon did not wipe out the conviction for pur-
poses of federal employment.91
In State v. T.M., 860 P.2d 1286 (Alaska Ct. App. 1993), the lower court had
vacated the defendant’s delinquency adjudication even though the court’s two-year
statutory jurisdiction over the defendant had expired. In reversing that decision, the
Court of Appeals compared the lower court’s action to granting a pardon, and quoted
the Black’s Law Dictionary definition that a full pardon “frees the criminal without any
condition whatever[, erasing both] the punishment prescribed for the offense and the
guilt of the offender. It obliterates in legal contemplation the offense itself … .”92
Effect of Letter by Coast Guard Congressional Affairs Staff
The Supreme Court first established in Federal Crop Ins. Corp. v. Merrill, 332 U.S.
380, 384-85 (1947), that the advice of federal employees concerning matters not within
the scope of their authority is not binding on the government:
Whatever the form in which government functions, anyone entering into an arrangement
with the Government takes the risk of having accurately ascertained that he who pur-
ports to act for the Government stays within the bounds of his authority. The scope of
this authority may be explicitly defined by Congress or be limited by delegated legisla-
tion, properly exercised through the rulemaking power. . . . Just as everyone is charged
89 Thrall v. Wolfe, 503 F.2d 313, 316 (7th Cir. 1974).
90 United States v. Bergeman, 592 F.2d 533, 536-37 (9th Cir. 1979) (citing many similar decisions, including
United States v. Potts, 528 F.2d 883 (9th Cir. 1974)).
91 Yacovone v. Bolger, 645 F.2d 1028, 1034 (D.C. Cir. 1981).
92 State v. T.M., 860 P.2d 1286 (Alaska Ct. App. 1993) (quoting BLACK’S LAW DICTIONARY (6th ed. 1990))
with knowledge of the United States Statutes at Large, Congress has provided that the
appearance of rules and regulations in the Federal Register gives legal notice of their
contents.
This rule has been followed by the courts and by the BCMR.93
93 See, e.g., Final Decision in BCMR Docket No. 1997-149; Goldberg v. Weinberger, 546 F.2d 477 (2d Cir.
1976), cert. denied sub nom. Goldberg v. Califano, 431 U.S. 937 (1977); Montilla v. United States, 457 F.2d 978
(Ct. Cl. 1972).
FINDINGS AND CONCLUSIONS
The Board makes the following findings and conclusions on the basis of the
applicant's military record and submissions, the Coast Guard's submissions, and appli-
cable law:
The Board has jurisdiction concerning this matter pursuant to Section 1552
of Title 10 of the United States Code.
1.
2.
An application for correction must be filed within three years after the
applicant discovers the alleged error in his record. 10 U.S.C. § 1552(b). An application
for reconsideration must be filed within two years after the issuance of a final decision.
33 C.F.R. § 52.67(e). These requirements may be waived if the Board determines that it
would be in the interest of justice to do so. The applicant filed his original application,
BCMR Docket No. 373-91, more than 4x years after he received his undesirable dis-
charge from the Coast Guard. His application for reconsideration was filed more than
five years after the issuance of the final decision in Docket No. 373-91. In light of the
new evidence gathered by the applicant’s counsel and the decision of the Governor of
Xxxxx on November 26, 1997, to pardon the applicant for his 194x conviction for man-
slaughter, the Board finds that it is in the interest of justice to waive the statute of limi-
tations and reconsider this case.
The applicant requested an oral hearing before the Board. The Chairman,
acting pursuant to 33 C.F.R. § 52.31, denied the request and recommended disposition
of the case without a hearing. The Board concurs in that recommendation.
3.
4.
The applicant, a former fireman first class who is African American, was
awarded an undesirable discharge from the Coast Guard Reserve in April 194x after
being convicted of manslaughter in the U.S. District Court of the Territory of Xxxxx for
stabbing a Native American crewmate, L.S., in October 194x. He asked the Board to
upgrade his undesirable discharge to honorable because, he alleged, when he stabbed
L.S., he was acting in self-defense against a vicious, racially motivated attack. He fur-
ther alleged that the Coast Guard’s decision to hand him over to civil authorities in the
Territory of Xxxxx for prosecution was due to the crew’s racism and was unjust because
many of the eyewitnesses sailed away with his ship, the U.S.S. Xxxxxxx, and were
therefore unavailable to serve as witnesses at trial. The applicant also alleged that his
indictment for second-degree murder was unjust because the eyewitnesses who stayed
in Xxxxx did not appear before the grand jury. Moreover, he alleged, he never received
effective assistance of counsel because his conviction for manslaughter was based on a
guilty plea entered by his attorney without his consent, and his attorney never
interviewed the available witnesses. Finally, he alleged that his discharge should be
upgraded because the Governor of Xxxxx has pardoned him.
FINDINGS OF FACT
Events in Xxxxxxx, Xxxxx, on Friday, October 26, 194x
5.
The statements in the 194x F.B.I. report attributed to the applicant, J.M.,
J.C., and R.W. indicate that the applicant and L.S. did not meet on shore while on liberty
the evening of October 26, 194x, and argue over the applicant’s dancing with a white or
Native American woman. Neither the applicant himself nor J.M., who accompanied
him on liberty in Xxxxxxx, mentioned fighting, arguing with, or even seeing L.S. in
town to the F.B.I. agent. Nor, according to the 194x statement of the ship’s captain, did
the applicant say anything about meeting or fighting with L.S. while on liberty when
the captain interviewed him immediately after the fight and at 9:00 a.m. the next morn-
ing. J.M. told the F.B.I. about an incident in which a white woman refused to dance
with the applicant because he was “too drunk” and another incident in which the appli-
cant and he got into a “fracas” with another sailor. However, he did not indicate that
the “fracas” was caused by the dancing or that either incident involved L.S. J.M. clearly
knew who L.S. was because he stated that when he returned to the ship and was on the
Mess Deck, L.S. entered and asked him where the applicant was. R.W., who accompa-
nied L.S. on liberty, stated that they did not run into the applicant in Xxxxxxx. J.C.
stated that he saw both the applicant and L.S. in town, but they were not together.
6.
The applicant argued that recent statements by former crewmembers and
a 194x newspaper article prove that L.S. began the fight at a bar in Xxxxxxx after the
applicant danced with a white or Native American woman. In his 1996 statement, J.M.
described the incident in the bar with the woman quite differently from the way that he
did to the F.B.I. agent in 194x: he alleged that L.S. instigated a fight by trying to cut in
when the applicant was dancing with her. In his 1996 statement, N.S. said that he saw
the applicant and L.S. scuffle in the bar, but in his 194x statement, he mentioned
nothing about seeing L.S. or the applicant while on liberty. In recent statements and
taped conversations, L.B., W.R., R.E., W.D., L.N., and F.R. stated that they had heard
that the fight started in the bar, but they did not indicate how or when they heard this.
The Xxxxxxx Xxxxxx reported that L.S. had been “picking on” the applicant for several
days and that the “[f]inal quarrel is said to have started at a local cocktail bar.”
7.
In light of Findings 5 and 6, the Board finds that the applicant has not
proved by a preponderance of the evidence that the fight between him and L.S. started
in Xxxxxxx over the applicant’s dancing with a white or Native American woman. He
has not proved that the statements in the F.B.I. report attributed to himself, J.M., R.W.,
and J.C. are false or unreliable.94 Those statements indicate that L.S. and the applicant
did not begin fighting or even meet while on liberty in Xxxxxxx. They also indicate that
94 Findings 27 through 34 further explore the credibility of the evidence in this case.
the applicant danced with a white woman and later got into a “fracas” with a sailor
about an unidentified issue, but L.S. was not implicated in either incident.
8.
9.
According to the F.B.I. report, when asked how much alcohol the appli-
cant had drunk while on liberty, J.M. stated that he remembered him having three or
four shots of whiskey in one bar and two shots in another bar. When asked to estimate
the total amount of alcohol the applicant consumed while on liberty that evening, J.M.
reported that he drank approximately one-half pint (eight ounces) of Schenley’s whisky,
but he also indicated that he was not aware of how much the applicant drank during
their final visit to “Helen’s Tavern” at about 11:00 p.m. Military and medical records
indicate that the applicant stood 5 feet, 7 inches tall and weighed approximately 138
pounds. According to the formula used by the National Highway Traffic and Safety
Administration (NHTSA), someone of the applicant’s weight who drinks eight ounces
of 80 proof95 whiskey in an hour will have a blood alcohol content (BAC) of approxi-
mately 0.166 soon afterward. However, time and metabolism can significantly affect a
person’s BAC. For example, if the applicant drank those eight ounces gradually over
the course of the entire evening, his BAC may have been as low as 0.064.96 A 138-pound
man who consecutively drinks five one-ounce shots (the minimum the applicant may
have drunk according to J.M.) will have an immediate BAC of 0.104, but may be essen-
tially sober by midnight if the shots are drunk gradually during the evening. J.M. told
the F.B.I. that the applicant was “feeling good” but was not “drunk” when they
returned to the ship, and other witnesses stated that he seemed to be in control of his
actions. However, the ship’s doctor found that the applicant was still “moderately”
intoxicated at 3:00 a.m., at least two and one-half hours after the stabbing.97 In addition,
according to the ship’s captain, the applicant told him the morning after the stabbing
that he had been “tight” at 10:30 that evening.
Eyewitnesses also told the F.B.I. that L.S. was in control of his actions at
the time of the fight. R.W. reported that L.S., who stood 5 feet, 10 inches tall and
weighed approximately 200 pounds according to the autopsy, had about five “drinks”
of whisky while on liberty in Xxxxxxx.98 Using the NHTSA formula and assuming each
“drink” was a one-ounce shot of 80 proof whisky, L.S.’s BAC would have been
approximately 0.071 if he drank all the shots in the hour before he returned to the ship,
but he may have been essentially sober if he drank them gradually over the course of
the entire evening.
95 Schenley’s whiskey is advertised as being 80 proof.
96 According to NHTSA, the average man’s BAC decreases by 0.017 per hour due to the metabolism of
alcohol.
97 The applicant alleged that the doctor’s report was unreliable, but see Finding 31 below.
98 R.W. stated that he and L.S. had a pint (16 ounces) bottle of whiskey. He stated that they gave most of
it away, but he had two or three drinks from the bottle (plus four or five beers) and L.S. had “about five”
drinks.
The Onset of the Fight on the U.S.S. Xxxxxxx
10. According to the F.B.I. report, the applicant and J.M. stated that upon
returning to the Xxxxxxx near midnight, they went to the Mess Deck, where they con-
tinued to argue with the sailor with whom they had argued while on liberty. Soon
thereafter, the applicant told the F.B.I., he left the Mess Deck and ran into R.Y., A.A.,
and L.S. in a passageway. The 194x statements of the applicant, A.A., R.W., and F.Z.
indicate that the argument between L.S. and the applicant began in the passageway
near the Mess Deck. According to the statement of the ship’s captain to the F.B.I., the
applicant also told him about the onset of the fight in the passageway when he came to
the Ward Room after the fight. Also according to the F.B.I. report, A.A. and F.Z. stated
that L.S. was helping A.A. get R.Y., a steward’s mate who was very drunk,99 to his bunk
when the applicant intervened, calling R.Y. a “cocksucker” and insisting that he would
help R.Y. to his bunk. A.A. and F.Z. stated that the applicant then shoved L.S., who
shoved the applicant back into the connecting passageway. The applicant told the F.B.I.
that L.S. shoved him first and called him a “black cocksucker.” The statements made by
the applicant, R.W., A.A., and F.Z. in 194x indicate that, after exchanging shoves with
L.S., the applicant kicked him in the stomach, walked backward down the passageway
followed by L.S., and kicked him again in the stomach or “crotch,” causing L.S. to dou-
ble over. J.M.’s 194x statement strongly supports these statements because he indicated
that shortly after the applicant left the Mess Deck, L.S. entered the Mess Deck looking
for and threatening the applicant because he had kicked L.S. in the stomach. The appli-
cant told the F.B.I. that he first kicked L.S. because the latter was holding him by his
coat. The ship’s captain told the F.B.I. that the applicant said he kicked L.S. because the
latter was about to hit him.
The applicant alleged that the onset of the fight as described in the 194x
F.B.I. report was a “ridiculous” and “dim and silly story” fabricated by the sailors. He
alleged that he would never have begun a physical confrontation with someone so
much bigger than he and that both F.Z. and R.W. disliked him enough to lie about the
fight. He pointed to the fact that F.Z. had previously called him “Joe” and to the fact
that R.W., the Master at Arms,100 twice disarmed him that evening as evidence of their
bias. He also pointed out that in a telephone conversation in 2000, A.A. indicated that
he did not remember this incident. However, the applicant himself told virtually the
same story—differing only as to who shoved whom first and what insults were spo-
ken—to the ship’s captain after he ran to the Ward Room and later to the F.B.I. The
Board finds that the 194x accounts of the encounter in the passageway are detailed, rea-
sonably consistent, and credible, especially in light of the fact that the participants had
99 The ship’s log states that R.Y. was placed on report for disorderly conduct that night and later had to
perform many hours of extra duty as punishment. The applicant alleged that R.Y.’s punishment was not
awarded because of his drunkenness but because of other, unrevealed culpable behavior in the fight
between L.S. and himself. However, this allegation is not supported by any evidence in the record.
100 The Master at Arms was responsible for keeping order among the enlisted men on the ship.
11.
been drinking alcohol while on liberty.101 Therefore, and in light of the evidence
described in Findings 5 through 10, the Board finds that the applicant has not proved by
a preponderance of the evidence that the fight between him and L.S. started in Xxxxxxx
over his dancing with a white or Native American woman, rather than in the passage-
way on the Xxxxxxx, as he told the ship’s captain and the F.B.I. in 194x.
The Break in the Fight on the U.S.S. Xxxxxxx
12.
13.
The applicant alleged that after he returned from liberty, four or five sail-
ors were “hunting” him and threatening to kill him. Statements by the applicant, R.W.,
and others in 194x indicate that after the applicant kicked L.S. the second time in the
passageway, he ran and eluded L.S. for a few minutes. The applicant told the F.B.I. that
before he ran, R.W. “said ‘get him.’” The 194x statements of J.M., R.W., F.Z., F.W., R.A.,
and R.D. indicate that aside from L.S., crewmembers B.C. and F.Z. were looking for the
applicant and that R.W., the Master at Arms, began looking for both the applicant and
L.S. J.M. told the F.B.I. that when L.S. came through his compartment with B.C. looking
for the applicant, he threatened to kill the applicant if he found him. J.M. said that B.C.
advised him to go find the applicant because he had kicked L.S. in the stomach. J.M.
also said that F.R. walked through the compartment and urged him to find the appli-
cant because four sailors “had it in for him.”102 F.W. told the F.B.I. that he heard a
motor mechanic third class called “Joe”103 threatening to kill the applicant, but “Joe”
was “quite intoxicated” and was being handled by other sailors. In 1996, W.D. stated
that he remembered being in the machine shop when L.S. and another sailor came by
looking for the applicant.
The Board finds that the preponderance of the evidence indicates that,
after the applicant kicked L.S., the latter was very angry and looked for him in the
berthing compartments while uttering at least one threat to kill him to another sailor.
“Joe” threatened to kill the applicant while other sailors were taking him somewhere
because he was very drunk. B.C. and F.Z. also searched for the applicant and may have
“had it in for him” as F.R. told J.M. However, F.Z. went “top side” and saw no more of
the fight. B.C. did not explain to the F.B.I. why he was walking though the compart-
ments104 or mention his warning to J.M. to help the applicant, but according to J.M.’s
101 Although the F.B.I. report did not include a statement by R.Y., the supposed cause of the fight, it seems
likely from the evidence that he was too drunk to remember anything or to make a reliable statement
about what happened in the passageway.
102 According to the F.B.I. report, J.M. told the agent that he did not follow the advice of B.C. and F.R.
because “he had done his best all evening to keep [the applicant] out of trouble so that any further trouble
in which he got involved would be on his own neck.”
103 The ship’s log indicates that N.S. was a motor mechanic third class, but it is not clear that he was the
“Joe” in question. According to the ship’s log, R.Y. was a steward’s mate second class.
104 According to the F.B.I. report, B.C. said he had been in his own berthing compartment, 203, and had
walked through 202 back to 201, when he saw L.S. go from 201 to 202 through the portside hatch. B.C.
stated that he followed L.S. back into 202 through that hatch.
and the applicant’s statements to the F.B.I., B.C. searched for the applicant with L.S. and
later pointed him out to L.S. through the port-side hatch between compartments 201
and 202. Therefore, it appears that B.C. was helping L.S. as he searched for the appli-
cant.
14.
The applicant stated in 194x that R.W. was also out to “get him” and
threatened to lynch him if he “cut” L.S. However, the 194x statements of the applicant
and other sailors indicate that R.W. never laid a hand on the applicant until after he
stabbed L.S., though he had plenty of opportunity to do so. When the applicant armed
himself with his knife, he was violating Article 4 of the Articles for the Government of
the United States Navy.105 R.W.’s alleged threat to lynch the applicant if he “cut” L.S.
with his knife was racist if true,106 but it would not prove that R.W. actually intended to
harm the applicant. As Master at Arms, it was R.W.’s job to maintain order among the
enlisted men; the fact that he threatened the applicant to try to stop him from “cutting”
L.S. does not prove that he actually intended to hurt the applicant, though the latter
may have felt terrified by the warning. In summary, the evidence in the 194x F.B.I.
report indicates that after the incident in the passageway, four crewmembers were
looking for the applicant: L.S., who was searching for him to fight him; B.C., who
apparently accompanied L.S. on his search and pointed him out to L.S. but also told
J.M. to help the applicant; F.Z., who briefly joined the search but then “went topside”;
and R.W., who as Master at Arms was trying to stop the fight.
15. According to the F.B.I. report, R.W., L.N., R.D., N.S., and R.A. stated in
194x that R.W., the Master at Arms, found the applicant near the starboard hatch
between berthing compartments 202 and 203, holding a ten-inch pipe used for dogging
(sealing and unsealing) the hatches. These sailors’ statements also indicate that R.W.
persuaded the applicant to give the pipe to him without an argument. N.S. stated that
he heard the applicant tell R.W. that he picked up the pipe to protect himself. The
applicant told the F.B.I. a pipe was “involved” but he did not remember having it or
giving it to R.W.
Shortly thereafter, according to the statements of L.N., R.C., and N.S. in
the F.B.I. report, L.N. advised the applicant to go tell the Officer of the Day what was
happening for his own protection, but the applicant would not do so. In his own 194x
statement, the applicant told the F.B.I. that L.N. approached him and said “I do not
want to see you get in no trouble.”107
16.
105 ARTICLES FOR THE GOVERNMENT OF THE UNITED STATES NAVY 1930, Art. 4 (2d ed. 1944).
106 However, the majority of the Board has found that the applicant has not proved that R.W. or any other
sailor threatened him with lynching. See Finding 18.
107 In his 1996 statement, the applicant alleged that he reported the fight to an officer on the bridge as
soon as he returned to the ship, but this allegation is not supported by any other evidence in the record
concerning his actions that evening.
17.
The 194x statements of R.W., R.C., N.S., and R.A. indicate that the appli-
cant then went to his locker on the port side of compartment 202, took his knife out in a
sheath, and tucked it in the top of his trousers. He put the knife back in his locker when
R.W. came over and told him that he would “bend” the pipe over the applicant’s head if
the applicant “cut” L.S. with his knife. The applicant told the F.B.I. that R.W. made this
threat and also threatened him by discussing lynching with E.G., but he denied actually
having his knife out of his locker at this time. According to the 194x statements of R.W.
and L.N., after the applicant put his knife back in his locker, R.W. handed the pipe to
L.N. The statements of R.W. and R.D. to the F.B.I. indicate that R.W. told the applicant
that if he would go to bed, R.W. would persuade L.S. to go to bed.
18. Neither R.W. nor E.G. mentioned the conversation about lynching to the
F.B.I., although R.W. did admit to telling the applicant he would “use this pipe” on him
if he “cut” L.S. E.G.’s statement to the F.B.I. indicates that he was not in compartment
202 until later, after L.S. and the applicant had begun fighting, and none of the other
sailors’ statements to the F.B.I. mentions E.G. being among those present in compart-
ment 202 at the time. N.S., who overheard R.W.’s threat to “bend” the pipe over the
applicant’s head if he “cut” L.S., denied hearing any conversation about lynching in his
statement to the F.B.I. R.C. and R.A., who also overheard R.W. convincing the applicant
to put his knife away, did not mention any threats of lynching. Therefore, the Board
concludes that the applicant has not proved by a preponderance of the evidence that
R.W. or any other sailor threatened him with lynching during the break in the fight.
The End of the Fight on the U.S.S. Xxxxxxx
19.
Statements made by the applicant, R.W., L.N., R.C., N.S., R.A., and H.R. in
194x indicate that while R.W. and other sailors were talking to the applicant near his
locker on the port side of compartment 202, L.S. entered the berthing compartment
through the port-side hatch between compartments 201 and 202 and saw the applicant.
The applicant stated that B.C., who was with L.S., pointed him out. R.W. stated that he
was standing between the applicant and that hatch when L.S. came through it. The
statements of R.W., L.N., and N.S. to the F.B.I. indicate that R.W. and L.N. tried to grab
L.S., but he broke free and went after the applicant. The 194x statement of R.W. indi-
cates that after L.S. broke free, he and the applicant threw “two or three licks at each
other, but neither was hit.” R.W.’s statement is supported by that of the applicant—
who told the F.B.I. that L.S. was “attempting” to hit him but that he was “knocking
[L.S.’s] blows off with my arms”—and by that of R.D.—who stated that L.S. and the
applicant were “throwing punches” and that the applicant was “warding off” L.S.’s
hits. R.C. and R.A. did not mention these punches in their descriptions of the fight.
According to the statements of L.N., N.S., and R.D., L.N. started to exit the compart-
ment at this moment to get the Officer of the Day.
20.
21.
The 194x statements of the applicant, R.W., R.C., R.D., R.A., and P.V. indi-
cate that after “knocking” or “warding” off L.S.’s punches, the applicant ran all the way
around the inboard port-side tier of bunks and back again to his locker, with L.S. chas-
ing him. On the way, the applicant ran through a group of several men near the port-
side hatch between compartments 202 and 201. He told the F.B.I. that when some of
them tried to grab him, he said, “Hold [L.S.], don’t hold me,” broke free, and ran back
toward his locker. H.R. told the F.B.I. that some of the men in the group tried but failed
to stop L.S. when he ran through.
The statements of the applicant, R.W., and many others indicate that L.S.
caught up with the applicant near his locker. In his application to the BCMR, the appli-
cant alleged that L.S. began to beat him viciously at this point. This allegation is sup-
ported by the recent statement of only one eyewitness: in his 1996 affidavit, N.S. stated
that L.S. was “pounding” the applicant with his fists “savagely.” In his 194x description
of the fight to the F.B.I., however, N.S. did not mention any fierce fighting and indicated
that he could not see the fight because he was behind a group of sailors. In a recent
taped telephone conversation, L.N. said that if the applicant had not grabbed his knife,
“the killing might have gone the other way,” but he did not describe the fight and he
also opined that the applicant “should have served time” for the stabbing. L.N. also did
not describe the fighting to the F.B.I. agent in 194x; he stated that he had already turned
away to get the Officer of the Day by this time. In his own 194x statement, the applicant
did not mention being hit by L.S. after he ran around the bunks. However, the 194x
statements of E.G., R.A., R.D., P.V., and R.C. indicate that L.S. and the applicant “scuf-
fled,” and the applicant again warded off L.S.’s blows.108 This characterization of the
fight is supported by the 1996 statement of another eyewitness, M.Z., who stated that
the applicant and L.S. “wrestled and scuffled.” In a recent telephone interview, another
eyewitness, R.B., stated that L.S. hit the applicant a couple of times before he reached
for his knife and once or twice more thereafter. In his 1999 statement submitted by the
Coast Guard, R.B. “estimated” that L.S. hit the applicant four or five times before he
knelt by his locker and several times before he was stabbed. H.R., who also witnessed
the fight, did not describe any punches being thrown at all prior to the stabbing in
either his 194x or 1996 statements. The other recent statements submitted by the appli-
cant that describe the fight are by persons who did not actually witness it.109
108 R.A. and E.G. stated that L.S. and the applicant were “scuffling”; R.C. stated that L.S. began fighting
the applicant, who threw up his hands to “ward off the blows” of L.S.; R.D. stated that L.S. “was
swinging at [the applicant] but not hitting him”; P.V. stated that L.S. was hitting the applicant, who “was
protecting himself with his arms.”
109 In their 1996 statements, W.D. stated that he did not witness the fight but heard that L.S. “attacked”
the applicant; W.R. said he heard that L.S. “was going to beat the hell out of him, when the black man
stabbed [L.S.] in the back”; and L.B. stated that the first moment he witnessed any of the events was when
L.S. and the applicant were facing each other in a “bear hug” just before the applicant stabbed L.S.
22. According to the F.B.I. report, R.W., J.C., R.C., R.D., P.V., and H.R. stated
that after L.S. caught up with the applicant again near his locker, the applicant knelt
down on his right knee with his back toward L.S., opened his locker, and reached in
with his right hand to grab his knife.110 The applicant told the F.B.I. that he fell down
near his locker after running around the bunks and that L.S. lifted him to his knees.
None of the other statements in the record mentions the applicant falling down. P.V.
and R.D. both told the F.B.I. that, while L.S. was swinging at him, the applicant walked
backward down the aisle past his locker, but then stepped toward it and dropped to
one knee to open his locker. Although the applicant did not tell the F.B.I. that L.S.
kicked him, the ship’s captain said that the applicant told him the morning after the
stabbing that L.S. “was kicking” him when he reached for his knife. In addition, the
statements of R.D., J.C., R.C., H.R., and P.V. indicate that L.S. kicked the applicant after
he knelt by his locker.111 J.C. told the F.B.I. that, when L.S. kicked the applicant, he also
called him a “black s___ b___.” P.V. told the F.B.I. that other sailors in the compartment
were saying “break it up” and “let him alone” at this point.
The applicant told the F.B.I. that L.S. tried to pull him up twice and that
the first time L.S. tried to pull him up, L.S. was choking him and he could “hardly
breathe.” According to the captain’s account of his interview with the applicant on the
morning after the stabbing, the applicant complained only of having been kicked. The
F.B.I. report indicates that the agent asked the witnesses to describe the hold L.S. had on
the applicant after he knelt by his locker. R.W., R.D., and E.G. told the F.B.I. that they
could not see the exact nature of the hold but that L.S. was stooping over the applicant
with his arm around his neck, head, or shoulders and was trying to pull him to his feet
when he said “Stand up and fight like a man.” The statements of P.B., H.R., and B.C.,
however, indicate that L.S. was not holding the applicant by his neck but was pulling
him up by his shoulders or jumper when he said “Stand up and fight like a man.”112
P.V., who was lying in his bunk right beside the fight, told the F.B.I. that L.S. was not
choking the applicant or holding him by his neck. The eyewitnesses’ 194x statements
indicate that this part of the fight lasted only a few seconds.113 The report of the ship’s
doctor indicates that he found no evidence that the applicant had been choked when he
23.
110 The applicant told the F.B.I. that he was reaching for his knife. However, he also claimed that he did
not know if his knife was in his locker.
111 R.D. and P.V. told the F.B.I. that L.S. “kicked” the applicant after he knelt beside his locker, while R.C.
and H.R. stated that L.S. “began kicking” the applicant, and J.C. stated that L.S. “was kicking” the
applicant when J.C. entered the compartment.
112 The difference in holds described by the witnesses may be due to the fact that L.S. tried to pull the
applicant to his feet twice. The applicant told the F.B.I. that the first time this happened, L.S. had his arm
under his chin and he could “hardly breathe,” but he did not describe L.S.’s second attempt to pull him
up. Therefore, it is possible that when L.S. tried to pull the applicant up the first time, he had his arm
under his chin and that the second time, he grabbed the applicant by his shoulders or jumper.
113 See Finding 25, regarding the timing of the fight.
24.
25.
examined him at 3:00 a.m. the same morning.114 In their recent statements and audio-
taped conversations, none of the veterans mentioned the applicant being choked by L.S.
Therefore, although it is conceivable that the first time L.S. tried to make the applicant
stand up, he may have had his arm under the applicant’s chin for a couple of seconds in
a hold that hurt the applicant and constricted his breathing, as the applicant alleged, the
Board finds that the applicant has not proved by a preponderance of the evidence that
L.S. was choking him or trying to choke him.
The 194x statements of the applicant, R.W., J.C., R.C., R.D., P.V., H.R., P.B.,
and B.C. indicate that when the applicant grasped his knife in his locker, he stood up
and immediately threw his right arm over L.S.’s left shoulder, stabbing him three times
in the back very quickly and forcefully. According to R.W. and R.D., the 7 inch blade
entered “to the hilt.” This is supported by the coroner’s report, which found that two of
the knife wounds in L.S.’s back entered the thoracic cavity. The applicant and R.D.
stated that the applicant told L.S. he had a knife as he was rising to his feet. According
to the Xxxxxxx Xxxxxx, R.W. testified at the inquest that the applicant announced he
had a knife as he rose to his feet. However, there is no indication that the applicant
attempted to ward L.S. off with the knife. The statements of R.W. and B.C. and the
newspaper accounts of testimony at the inquest indicate that, upon rising to his feet, the
applicant used his left hand to pull L.S. close before throwing his right arm over L.S.’s
left shoulder to stab him in the back. P.V. described this as an “embrace.” The appli-
cant told the F.B.I. that L.S. was still choking him when he stabbed him, but there is no
other evidence in the record that supports this allegation. L.S. died a few minutes later.
The applicant told the F.B.I. that he left the Mess Deck at about 12:05
a.m.115 A.A. stated that he and R.Y. boarded the ship about 12:10 and met the applicant
in the passageway where the fight started. R.A. stated that the applicant ran through
his compartment at about 12:15, followed a few minutes later by L.S. The statements of
R.W., J.C., L.N., and R.R., the Officer of the Day, taken together, indicate that the stab-
bing occurred at about 12:20. R.W. told the F.B.I. agent that he thought that the
“events”—beginning with the shoving in the passageway—took just “six to eight min-
utes shortly after midnight.” The statements of N.S. and E.G. also indicate that the
fighting took place between 12:10 and 12:20. The witnesses’ 194x descriptions of the
end of the fight in the berthing compartment indicate that it happened very quickly.
L.N.’s 194x statement indicates that although he started to go get the Officer of the Day
when L.S. began swinging at the applicant, he had just reached the hatch when the
stabbing occurred. In his recent audiotaped interview, L.N. said that it happened so
quickly “[i]t was over before it started.” R.W. told the F.B.I. that “[i]t happened so fast,
114 The applicant alleged that the doctor failed to see signs of choking on the skin of his neck because he
is African American. See Finding 31, regarding the doctor’s credibility.
115 J.M. told the F.B.I. the applicant left the Mess Deck sometime between 12:15 and 12:30, but this is
inconsistent with other sailors’ statements. F.Z.’s statements about the time were also very inconsistent
with those of other sailors, as he indicated that the fight in the passageway started about 11:45.
no one had time to do anything until [L.S.] was stabbed.” In his 1999 statement, R.B.
indicated that only about 45 seconds elapsed between the time L.S. first swung at the
applicant in the berthing compartment and the stabbing.116
26. According to the statements of E.G., R.W., R.A., and B.C. in the F.B.I.
report, after the stabbing, E.G. took the knife out of the applicant’s hand and threw it
under some lockers. The applicant, R.W., P.B., B.C., E.G., F.W., and R.R. told the F.B.I.
that some of the sailors then grabbed the applicant and began to punch and kick him
while asking him why he had “cut” L.S. They stopped when R.R., the Officer of the
Day, arrived and sent the applicant to the Ward Room. The ship’s log indicates that the
applicant was quickly removed to the Xxxxxxx Federal Building in the custody of the
U.S. Marshal.
Reliability of the Evidence
27.
The applicant alleged that his own 194x statement to the F.B.I. was unreli-
able and may have been made under duress because it was made during his interview
with the F.B.I. agent from 9:30 p.m. to 1:30 a.m. on Tuesday, October 30, 194x. Although
the timing of the interview may be unusual, it does not prove that his statement was
false or incomplete. The statement is lengthy, contains several exculpatory claims, and
is written in the first person, indicating that it was written or dictated by the applicant
himself. In addition, during the interview, the applicant requested pencil and paper
and drew a map of the berthing compartment and his movements therein. Other than
the time, there is no evidence that the applicant had reason to be particularly tired dur-
ing the interview. It is unknown what schedule of watches he had been performing on
the Xxxxxxx prior to the stabbing or whether he had resumed a normal civilian or mili-
tary waking and sleeping schedule while in jail after the stabbing. Moreover, the timing
of the interview may have been necessitated by the fact that the ship was sailing to
Xxxxxxx the next day, Wednesday, October 31, 194x, and the F.B.I. agent needed to be
on board to interview the witnesses. There is no evidence in the record of what day the
F.B.I. agent arrived in Xxxxxxx, and the record indicates that during the day on Monday
and Tuesday, the applicant was busy attending the Board of Investigation, the coroner’s
inquest, and his own arraignment. Therefore, the Board finds that the applicant has not
proved by a preponderance of the evidence that his statement to the F.B.I. is unreliable
or was obtained under duress.
The applicant alleged that the 194x statement of J.M. to the F.B.I. is unreli-
able because J.M. may have feared violence at the hands of the racist crewmembers if he
told the truth. However, by the time he was interviewed by the F.B.I. agent, J.M. had
either been removed from the Xxxxxxx along with the other black sailors or knew he
116 In addition, P.M., an officer who did not witness the fight, stated in 1999 that he was told afterwards
that “the stabbing and the events leading up to the stabbing had taken place very quickly with no
opportunity for any other crew members to intervene between the two individuals.”
28.
29.
would be removed as soon as the ship reached Xxxxxxx.117 In addition, there is no evi-
dence indicating that the other sailors would learn the substance of J.M.’s testimony:
the F.B.I. report indicates that only the F.B.I. and the U.S. District Attorney received
copies of statements in the agent’s report, and in his 1996 statement, N.S. indicated that
none of his shipmates knew the substance of his 194x statement. Moreover, in his own
1996 statement, J.M. did not allege that he lied to the F.B.I. due to fear or coercion in
194x. His statement in the F.B.I. report is long and detailed in its discussion of the
events in question and racial relations on board the Xxxxxxx. Therefore, the applicant
has not proved by a preponderance of the evidence that J.M.’s 194x statement in the
F.B.I. report is unreliable.
The applicant alleged that the 194x statement of R.W. to the F.B.I. is unre-
liable because R.W. was a friend of L.S. and was protecting himself from getting into
trouble for not having stopped the fight. He alleged that the unreliability of R.W.’s
statement to the F.B.I. is proved because it differs from his testimony at the inquest as
reported by the Xxxxxxx Xxxxxx and the Xxxx Xxxxx Xxxxx. The two newspaper arti-
cles indicate that the quarrel arose after the applicant kicked L.S. in the stomach “earlier
in the evening.” Each article then provides a more detailed account of R.W.’s testi-
mony, including the incident in the passageway. The applicant alleged that the reports
of kicking “earlier in the evening” prove that R.W. testified at the inquest that L.S. and
the applicant fought while on shore, contrary to his statement to the F.B.I. However,
the newspaper articles are hearsay, and his reported statement about a kicking “earlier
in the evening” could have been a reference to the kicking in the passageway. In addi-
tion, R.W.’s account of the fight in the F.B.I. report is supported by the accounts of the
other witnesses, and his statement about the lack of any confrontation between L.S. and
the applicant on shore is consistent with the 194x statements of the applicant and J.M.
Moreover, in his statement to the F.B.I., R.W. freely admitted to threatening the appli-
cant after he picked up his knife the first time, and to the fact that he was standing
between L.S. and the applicant when L.S. entered the compartment and yet still failed to
stop L.S. The applicant also alleged that the fact that R.W. disarmed him twice prior to
the stabbing proves that R.W. was biased against him. However, R.W. was the Master
at Arms, and the fact that he twice disarmed the applicant, who he knew had stabbed
someone before, while trying to stop the fight does not prove that he was biased against
the applicant. Therefore, the applicant has not proved by a preponderance of the evi-
dence that R.W.’s statement to the F.B.I. is unreliable.
30.
The applicant also alleged that the other sailors made false statements to
the F.B.I. because they wanted to lay the blame on the applicant rather than L.S., avoid
trouble for themselves and their shipmates, and stay on the ship. In 1996, N.S. stated
that he did not want to be removed from the ship but “reluctantly” told his story to the
117 The F.B.I. report does not indicate when any of the sailors’ statements were taken except the statement
of the applicant himself.
F.B.I. agent anyway. He indicated that because no one else on the ship knew what he
had told the F.B.I., he did not face any negative repercussions due to his testimony.118
In his audiotaped telephone interview, L.N. said that the sailors had drunk an “awful
lot” while on liberty and were “covering their butts.” Although this evidence indicates
that some of the sailors may not have been enthusiastic about giving statements to the
F.B.I., perhaps in part because they had been intoxicated, it does not prove that any of
them lied to the F.B.I. agent, either separately or in a conspiracy, to protect themselves,
L.S., or another sailor. L.S. was dead, and as a Native American, he was likely subject to
racism from other crewmembers himself. In none of the recent statements by veterans
did any of them allege that the sailors had lied or conspired against the applicant. The
fact that some of the sailors had previously gotten into arguments with the applicant
does not prove that they would have lied to frame the applicant and risked being found
out through other sailors’ testimony. Nor has the applicant proved that the sailors lied
in order to remain on board for an extended trip to the Far East rather than stay behind
in a hotel in Xxxxx until the trial. Moreover, several sailors did freely admit to the F.B.I.
agent potentially punishable behavior committed by themselves or their fellow
shipmates, such as getting drunk on liberty, searching for the applicant with L.S.,
threatening the applicant, failing to stop the fight, and hitting and kicking him after the
stabbing. Their 194x accounts of the onset, motivation, and nature of the fight are con-
sistent, coherent, and credible. Therefore, although the 194x statements were collected
and typed by the F.B.I. agent in part to aid the prosecution of the applicant, the Board
finds that the applicant has not proved that the sailors’ statements in the F.B.I. report
are unreliable or misleading.119
31.
The applicant alleged that the report of the ship’s doctor about his physi-
cal condition after the fight is false. He alleged that, because he is African American,
the ship’s doctor was unable to see marks on his neck caused by choking and bruises on
his skin caused by the fierce beating he received. He alleged that the doctor’s incom-
petence is proved by the fact that he found only a few contusions on the applicant, since
he should have had many contusions because the other sailors beat him up after the
stabbing. He also alleged that the ship’s doctor mistook his battered condition for
drunkenness, when he was not really intoxicated. However, as indicated in Findings 19
through 22, the applicant has not proved that L.S. beat him fiercely or even that L.S.
landed many punches. In his own statement to the F.B.I., the applicant stated that L.S.
was “attempting” to hit him but that he was “knocking [L.S.’s] blows off with my
arms.” The doctor found that the applicant had contusions on his right forearm, left
ankle, left knee, right lower leg, and lower back. He also reported that the applicant
118 In a 1996 statement, W.R. stated that he thought some of the sailors were “reluctant” to come forward
for the F.B.I. investigation, but he did not claim to have witnessed any of the events himself or to have
played any role in the investigation.
119 The applicant also alleged that the fact that some of the crewmembers cannot now remember what
they reported seeing or being interviewed by the agent is proof that their statements in the F.B.I. report
are unreliable. The Board finds that it is more probative of the unreliability of their memories.
had pain and tenderness in his left hip, left ankle, and “paravertiberal muscles on both
sides of the lumbar vertebrae” (lower back), which caused him to limp and stand with
difficulty. The applicant has not proved that the blows and kicks inflicted upon him by
L.S. and by the other sailors after the stabbing would have left more contusions than
those the doctor found. Nor has he proved that the doctor was unable to distinguish
between the physical results of a fight and alcoholic intoxication or unable to find signs
of choking on an African American man.
32.
The applicant alleged that the F.B.I. report is unreliable because the F.B.I.
agent himself was biased against the applicant. He presented no evidence of such bias,
but pointed out that newspaper accounts of the inquest related testimony by R.W. that
was contrary to R.W.’s statement in the F.B.I. report. The articles in the Xxxxxxx Xxxxxx
and the Xxxx Xxxxx Xxxxx seem to contradict the statements of R.W. and other sailors
in a few ways. The articles also contradict each other in their accounts of what R.W.
said about who kicked whom when and at what point L.S. began chasing the applicant
around the berthing compartment. Neither newspaper account of the fight adheres per-
fectly to the order of events related in the statements of the applicant, R.W., and the
other sailors to the F.B.I., but both relate some of the events just as the sailors described.
On the basis of the discrepancies between newspaper reporters’ written accounts of
R.W.’s oral testimony at the inquest and the statements of the applicant, R.W., J.M., and
other sailors included in the F.B.I. report, the applicant asks the Board to find that the
F.B.I. agent knowingly included false statements in his report or falsified or censored
those statements himself.
33. Absent strong evidence to the contrary, government officials, such as the
F.B.I. agent who investigated and wrote the report on the stabbing, are presumed to
have discharged their duties correctly, lawfully, and in good faith.120 In writing his
report, the F.B.I. agent had reason to believe that the applicant and at least seven of the
sailors whose statements he was including in the report would be called on to testify
before a grand jury and at the applicant’s trial. Any false information in the report
could have landed the agent in serious trouble with the law. Moreover, even if he had
conspired with the other sailors, including the applicant’s friend, J.M., to falsify the
report, he could not count on those sailors remembering and repeating the same lies
several months later to the grand jury and the trial court. The agent apparently typed
the report after he left the ship, and the sailors did not receive copies of their own
statements.121 Therefore, the agent had a strong personal motivation to make the report
as accurate as possible. In addition, the witnesses’ statements in the F.B.I. report indi-
cate that the agent diligently investigated each of the applicant’s exculpatory claims: the
applicant alleged that L.S. began the fight in the passageway, and the report indicates
120 Arens v. United States, 969 F.2d 1034, 1037 (Fed. Cir. 1992); Muse v. United States, 21 Cl. Ct. 592, 601
(1990); Sanders v. United States, 594 F.2d 804, 813 (Ct. Cl. 1979).
121 The report indicates that the statements were made in duplicate, with one copy retained by the F.B.I.
and the other delivered to the U.S. District Attorney in Xxxxx.
that the F.B.I. agent questioned A.A., R.W., F.Z., and J.M. about how and when the fight
began; the applicant alleged that R.W. and E.G. threatened to lynch him, and the report
indicates that the agent questioned R.W., E.G., N.S., R.C., R.A., and L.N. about the sub-
stance of R.W.’s warnings; the applicant alleged that L.S. choked him, and the report
indicates that the agent questioned R.W., R.D., E.G., P.V., P.B., H.R., and B.C. about how
L.S. was holding the applicant when he tried to make him stand up; and finally, the
applicant alleged that he was beaten up after he stabbed L.S., and the report indicates
that the agent questioned R.W., P.B., B.C., E.G., F.W., and R.R. about this beating.
Therefore, the Board finds that the applicant has not proved that the statements in the
F.B.I. report are false or unreliable as a result of the agent’s intentional wrongdoing,
bias, or negligence.
34.
The applicant submitted in support of his application 12 affidavits signed
by crewmembers of the Xxxxxxx more than 50 years after the events in question and 12
audiotapes of recent telephone conversations with crewmembers.122 Most of the recent
statements and conversations are by persons who, according to their own admission,
did not actually witness the fight or the parts of the fight that are described in their
statements. The Board accords little weight to the hearsay of non-witnesses made more
than 50 years after the events in question.123 N.S. stated in 1996 that the fight began on
shore in a bar after the applicant danced with a white woman, but N.S.’s 194x affidavit
mentions nothing about this episode. Moreover, his 1996 account of the fight differs
from his 194x account in several respects. In 1996, J.M. also stated that the fight began
over the applicant dancing with a white woman, but in 194x, J.M. gave a very different
account of the incident. J.M.’s 194x account of his evening on liberty with the applicant
does not mention L.S. at all, although the agent clearly questioned him about this.
Contrary to J.M.’s 1996 statement that the applicant “never had any trouble with any
member of the crew” prior to the stabbing, he told the F.B.I. in 194x that the applicant
“was always arguing with someone” and that, after F.R. told him that four sailors “had
it in for” the applicant, J.M. went to sleep because “he had done his best all evening to
keep [the applicant] out of trouble so that any further trouble in which he got involved
would be his own neck.” Moreover, much of the content of the recent evidence con-
cerns the aftermath of the stabbing and is irrelevant to its cause. Of the few eyewitness-
es to the fight who have provided recent evidence about it, only two, N.S. and L.N.,
indicated in any way that a fiercer fight occurred than that described by the eyewit-
nesses in 194x.124 In the audiotapes, the veterans frequently stated that they could not
122 The applicant also submitted unsigned statements, which, his attorney attested, reflected the contents
of telephone interviews the attorney had had with crewmembers. None of these findings is based upon
them.
123 Although the entire 194x F.B.I. report is hearsay—even the signed statements have been retyped for
inclusion in the report—the Board finds the report to be credible for the reasons indicated in Findings 27
through 33.
124 The 1996 accounts of the fight signed by the applicant and P.V. are anomalous and not credited by the
Board.
remember the facts, and the applicant’s counsel sometimes described facts of the case to
the veterans, as alleged by the applicant, prior to asking them to sign statements he
prepared about the facts. Therefore, the applicant has not proved that the statements
signed by crewmembers more than 50 years after the event are more reliable as evi-
dence of what happened in 194x and 194x than the court records, the ship’s log, or the
contemporary eyewitnesses’ statements to the F.B.I. agent.
The Role of Racism in the Fight
35.
The evidence concerning the amount of racial animosity on board the
Xxxxxxx prior to the stabbing is inconsistent. In 194x, black and white sailors alike
generally denied overt acts of racism and reported to the F.B.I. only two previous
incidents of overt racism on board the Xxxxxxx: according to J.M., a white sailor had
objected to sleeping in the same compartment with black sailors, and according to F.Z.,
he called the applicant “Joe” on his third day on the ship. However, the black sailors
indicated to the F.B.I. that they were very aware that there were racists on board and
went out of their way to avoid confrontations. Moreover, statements by sailors signed
in 1996 indicated that some of the crew referred to black sailors with racial slurs. Apart
from mentioning that L.S. called the applicant a “black s____ b____” at one point, the
F.B.I. report sheds no light on L.S.’s own views, but in recent affidavits and interviews,
N.S., J.M., L.B., W.R., R.E., F.R., and R.O. suggested that L.S., a Native American, was
racist against blacks.
36.
The record indicates that after the stabbing, the officers of the Xxxxxxx
took several precautionary measures to prevent further violence. According to the
ship’s log, guards were posted at the jail and on the dock to keep sailors from leaving
the ship. In addition, the three other black sailors were removed from the ship and held
at the jailhouse in Xxxxxxx temporarily before being transferred from the ship perma-
nently when it reached Xxxxxxx. These actions and others alleged by the applicant125
indicate that the captain feared that racist sailors might try to harm the applicant or the
other black sailors because of the stabbing. They are not particularly probative of the
cause of the fight but are indicative of the presence of potentially violent racists on
board.
In light of Findings 7, 11, 35, and 36, the Board finds that the applicant has
not proved by a preponderance of the evidence that L.S. was acting out of racism in
arguing with, chasing, or fighting the applicant on the night of the stabbing. The pre-
ponderance of the evidence indicates L.S. was angry because the applicant kicked him
in the abdomen twice (including once in the “crotch”) after their argument began in the
passageway. J.M. told the F.B.I. that L.S. and B.C. were looking for the applicant
37.
125 The applicant alleged that an officer ordered the ship’s lights turned out to prevent a riot and that
some sailors threatened to fire one of the ship’s guns at the jailhouse.
because he had kicked L.S. in the stomach. The record also indicates that at least once
during the fight, L.S. used the racial slur “black s_____ b_____” when speaking to the
applicant. However, no other contemporary, 194x evidence indicates that L.S. was
fighting the applicant because he was black, although the F.B.I. agent clearly questioned
the black and white sailors about racism on board.
The Prosecution of the Applicant
38. According to the ship’s log, on the morning of Monday, October 29, 194x,
the Coast Guard convened a Board of Investigation into the stabbing, in accordance
with Chapter 10 of the 1937 Naval Courts and Boards manual. Although the findings of
that board are not in the record, it is reasonable to assume that the Board of Investiga-
tion concluded that L.S. was a victim of homicide and that the applicant should be
handed over to federal civilian authorities for prosecution. Court records show that on
the afternoon of October 29th, the coroner held an inquest in Xxxxxxx, and the applicant
was arrested and charged with first-degree murder. On Tuesday, October 30th, he was
arraigned, informed of his rights, and committed into the custody of the U.S. Marshal.
On October 31, 194x, the Xxxxxxx left Xxxxxxx and sailed to Xxxxxxx, Xxxxx. The ship’s
log states that, on November 1, 194x, six sailors (F.Z., R.W., E.G., N.S., R.D., and P.V.)
who had witnessed parts of the fight between the applicant and L.S. were transferred
off the ship in Xxxxxxx as potential witnesses for the applicant’s trial. The next day,
J.M., the applicant’s friend, was also required to stay in Xxxxx as a potential witness
after he was permanently transferred off the ship with the other black sailors. On
November 2, 194x, the Xxxxxxx sailed away from Xxxxxxx. Court records indicate that
on November 5, 194x, the applicant’s case was transferred to Xxxxx, Xxxxx, at his
request.126 According to the 1996 affidavits of J.M., N.S., and P.V., the seven potential
witnesses were also moved to Xxxxx to await his trial. Soon thereafter, the Xxxxxxx
sailed to the Far East with the rest of the witnesses on board.
Court documents indicate that, on January 26, 194x, the applicant was
indicted for second-degree murder by a grand jury. The indictment was signed by the
jury foreman, the Assistant U.S. Attorney for the Territory of Xxxxx, and the Deputy
Clerk of the U.S. District Court for the Territory of Xxxxx. The indictment lists the
names of seven witnesses who appeared before the grand jury: crewmembers F.Z.,
P.V., N.S., J.M., E.G., and R.D., and the Xxxxxxx coroner, A.N.127 The applicant submit-
ted a 1996 affidavit by J.M. denying that he had ever appeared before the grand jury.
He also submitted a 1996 affidavit by N.S., who stated that “I do not remember actually
speaking in front of a grand jury and giving testimony, although I may have done so.”
126 In the Territory of Xxxxx, grand juries were in session for only a few weeks each year. Apparently, the
session in Xxxxxxx had recently ended and would not begin again for another year. Therefore, the
applicant agreed to have his case transferred to Xxxxx, where a grand jury would convene in January.
127 There is no evidence in the record that indicates why R.W., who was transferred off the ship to serve
as a witness, did not testify before the grand jury.
39.
40.
41.
P.V. signed an affidavit that does not address whether he remembers appearing before
a grand jury, and he apparently refused to sign an affidavit indicating that he was not
called to testify before a grand jury. Therefore, on the basis of one affidavit made 50
years after the fact, the applicant asked the Board to find that the jury foreman, the
Assistant U.S. Attorney, and the Deputy Clerk of the Court signed a false document,
conspiring to indict him illegally. The Board finds that the applicant has not proved by
a preponderance of the evidence that the witnesses listed on the indictment did not
appear before the grand jury or that his indictment was in any way invalid.
Court documents indicate that on January 29, 194x, the applicant was
arraigned on the charge of second-degree murder. On February 1, 194x, the court’s
records show, the applicant appeared in court in person with his attorney and entered a
plea of not guilty to second-degree murder. The trial date was first set to begin on Mon-
day, February 11, 194x, at the conclusion of another trial. However, on Friday, February
8, 194x, the judge noted that the trial could begin that same day. Court documents
show that the applicant personally appeared in court that afternoon with his attorney
and was granted a continuance. The trial was rescheduled for Wednesday, February
13th. Another court document shows that on February 13, 194x, the applicant appeared
in court with his attorney and entered a plea of guilty to manslaughter. The document
includes a transcript of a conversation between the applicant and the judge in which the
applicant confirmed his attorney’s statement that he wished to plead guilty to man-
slaughter. On February 18, 194x, the court records show, the applicant appeared in
court and, after personally answering the judge’s questions concerning his age and time
already served, was sentenced to five years in jail. He was released early, in November
194x, having been incarcerated for four years.
The applicant alleged that the court documents are false because he never
appeared in court at all. The applicant alleged that he first met his attorney when he
came to the jail to tell him that he had entered a plea of guilty to manslaughter on the
applicant’s behalf and that the applicant would serve five years. The applicant present-
ed no evidence to support these allegations. However, he argued that the court docu-
ments are pro forma and formulaic and are therefore untrustworthy. Court proceed-
ings are presumptively reliable.128 Moreover, the Board finds that the court documents
in this case are convincingly detailed regarding the applicant’s appearances in court
and his brief conversations with the judge. In addition, they expressly state that
another defendant whose case was before the court on February 13, 194x, was not per-
sonally present but was represented by his attorney only. Therefore, the Board finds
that the applicant has not proved by a preponderance of the evidence that the court
documents and transcripts indicating that he personally appeared in court and pled
128 Strickland v. Washington, 466 U.S. 668, 696 (1984) (finding that court proceedings are afforded a “strong
presumption of reliability”); Miller v. United States, 78 U.S. 268, 299 (1870) (holding that “[t]he general
rule, however, is that in courts of record all things are presumed to have been rightly done).
42.
guilty to manslaughter are false. The evidence indicates that the applicant personally
appeared in court on February 13, 194x, withdrew his plea of not guilty to second-
degree murder, and pled guilty to manslaughter.
The applicant alleged that his counsel never spoke to him or to the avail-
able witnesses in Xxxxx before entering a guilty plea without his consent. The applicant
submitted two 1996 affidavits from the witnesses stating that they do not remember
meeting the applicant’s counsel in 194x. The applicant’s counsel, however, is now
deceased, and it is impossible to reconstruct his actions on behalf of the applicant.
Court records indicate that on February 8, 194x, the applicant’s counsel requested a
continuance of the trial, which was rescheduled for February 13th. Moreover, the court
records clearly show that the applicant’s counsel also appeared with the applicant in
court when he pled not guilty to the charge of second-degree murder on February 1,
194x; when he pled guilty to manslaughter on February 13, 194x; and when he was
sentenced on February 18, 194x.
FINDINGS OF LAW
43.
Doctrine of Laches
44.
The Chief Counsel of the Coast Guard argued that the doctrine of laches
should apply to bar the applicant’s claims. He alleged that because many of the crew-
members of the U.S.S. Xxxxxxx, the applicant’s attorney, and the court officials are
deceased, the Coast Guard “is unable to determine the validity of the Applicant’s vari-
ous assertions of racial animus and lack of due process because that information went to
the graves with the deceased witnesses.” The Chief Counsel also alleged that all of the
evidence presented by the applicant was previously available to him had he exercised
due diligence.
The applicant’s counsel used the Internet to find the crewmembers of the
Xxxxxxx whose affidavits were submitted with his petition for clemency to the Gover-
nor of Xxxxx and with his application to the Board. Although it is possible that the
veterans could have been tracked down by more arduous methods earlier, the Board is
not convinced that the applicant could have done so himself or could have found and
afforded counsel willing to undertake that enormous task on his behalf. Moreover, the
efforts of the applicant’s counsel and the Coast Guard have created a record that pro-
vides the Board with sufficient evidence on which to base the necessary findings in this
case. Therefore, under Hirabayashi v. United States, 828 F.2d 595 (9th Cir. 1987), and
Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984), the Board finds the doc-
trine of laches should not apply to bar the applicant’s claims, despite the difficulties
caused by the applicant’s very long delay in applying to this Board.
Jurisdiction over the Stabbing
45.
The applicant alleged that the Coast Guard erred when it handed him into
the custody of civilian authorities for prosecution for murder. The record includes evi-
dence indicating that the applicant provoked an argument with L.S., kicked him in the
abdomen twice, picked up a pipe as a potential weapon, refused to go to the Officer of
the Day, took out his knife before L.S. entered the compartment, and stabbed L.S.
quickly in the back three times without attempting to ward him off. Such conduct
could reasonably be considered evidence of premeditation and malice aforethought.
Therefore, the Board finds that it was not unreasonable or unjust for the Coast Guard to
conclude that the applicant might be guilty of and could be charged with first-degree
murder even though other evidence in the record could have led a jury to acquit the
applicant or convict him of a lesser offense. A claim of self-defense or manslaughter—
supported by some evidence but contradicted by other evidence—does not prevent
someone from being charged with murder.
46.
The applicant alleged that the Coast Guard committed an injustice when it
decided to hand him over to territorial authorities for prosecution instead of court-
martialing him under the Articles of War. He argued that civilian prosecution was
unfair because many of the eyewitnesses sailed away with the ship and because he was
entitled to less pretrial discovery under Xxxxx’s territorial law than he would have been
under military law in a court-martial. He alleged that the Coast Guard’s decision was
based upon his race because the captain was afraid the crew might lynch him if he
stayed on board, and the record supports his allegation that the captain was concerned
for his safety. In 194x, the Coast Guard was still operating under the aegis of the Navy,
and naval laws and regulations applied to the applicant, as a member of the Coast
Guard Reserve.129 The Articles of War did not apply to the applicant because he was
serving under the jurisdiction of the Navy.130 Article 335 of the 1937 Naval Courts and
Boards provided that the Navy’s jurisdiction over criminal offenses was prescribed by
the Articles for the Government of the United States Navy, Article 6 of which provided
that only members charged with murder outside of the territory of the United States
could be court-martialed. In addition, Article 336 of the 1937 Naval Courts and Boards
also prohibited court-martialing a member charged with murder committed within the
territorial jurisdiction of the United States. Therefore, the applicant has not proved that
either the Navy or the Coast Guard had the legal authority to court-martial a member
charged with murder committed in the Territory of Xxxxx in 194x.131
129 COAST GUARD COURTS AND BOARDS, Art. 39 (1935); NAVAL COURTS AND BOARDS, Art. 33 (1937).
130 10 U.S.C. § 1473 (1945); see Lee S. Tillotson, ARTICLES OF WAR ANNOTATED, Art. 2 (3d rev. ed. 1944); see
McCune v. Kilpatrick, 53 F. Supp. 80, 86-90 (E.D. Va. 1943) (discussing the inapplicability of the Articles of
War to members of the Coast Guard when it is operating as a part of the Navy).
131 The Board of Review, Discharges and Dismissals that reviewed the applicant’s case in 1951 concluded
that he could have been court-martialed, and this would have been true if he had been charged with
manslaughter instead of murder. However, as stated in Finding 45, the Board has concluded that in light
47. Furthermore, the highest ranking officer on the Xxxxxxx was the captain, a
lieutenant commander in the Coast Guard Reserve. All of the other officers were also
members of the Coast Guard or Coast Guard Reserve. Articles 21 and 23 of the 1935
Coast Guard Courts and Boards manual prohibited members charged with murder
from being court-martialed. Although the captain may have been a lawyer in civilian
life, there is no evidence that he or anyone else on board had sufficient legal experience
to conduct a general court-martial for murder even if it had been authorized under the
Articles for the Government of the United States Navy and Navy regulations. In light
of the fact that these laws provided expressly and exclusively for civilian prosecution of
a sailor charged with murder, and given the lack of the necessary legal expertise on the
Xxxxxxx, the applicant has not proved his allegation that the Navy or the Coast Guard
refused to court-martial him solely because of his race and the racial animosity of some
of the crew.
48.
The applicant argued that under Solorio v. United States, 483 U.S. 435
(1987), the military always has jurisdiction over an offense by a member based solely on
the member’s status. However, the Court based its decision in Solorio on the language
in Article I, Section 8, Clause 14 of the Constitution, under which Congress has the
power to regulate land and naval forces.132 Thus, any member of the military who com-
mits an offense under the Uniform Code of Military Justice (UCMJ) may be tried by
court-martial rather than by civilian authorities.133 In 194x, however, the UCMJ did not
yet exist. Congress exercised its constitutional power through the Articles for the Gov-
ernment of the United States Navy, which provided expressly and exclusively for civil-
ian jurisdiction over sailors charged with murder in territorial waters, as stated in Find-
ing 46. Therefore, the Board concludes that the Coast Guard’s decision to deliver the
applicant to civilian authorities was consistent with the decision in Solorio.
49. Neither the Navy nor the Coast Guard could be expected to retain the
Xxxxxxx in the region so that all possible witnesses would be available for the
applicant’s trial when the ship was needed in the Far East.134 The applicant has not
proved his allegation that the ship was sent abroad because of the stabbing. The record
reflects that the following sailors were transferred off the ship and made available as
witnesses: J.M., the applicant’s friend, who accompanied him while on liberty in
Xxxxxxx the evening before the fight; R.W., the Master at Arms, who accompanied L.S.
while on liberty, witnessed both the onset and the end of the fight, and twice persuaded
of the evidence in the record, it was not improper or unjust for the applicant to be charged with murder,
even if other evidence in the record would support a conviction for a lesser offense or an acquittal on the
grounds of self-defense.
132 Solorio v. United States, 483 U.S. 435, 438 (1987).
133 Id. at 451.
134 The Xxxxxxx participated in the evacuation of Chiang Kai-shek’s Nationalist troops at the end of the
civil war in China.
the applicant to give up or put away his weapons during the break in the fight; F.Z.,
who witnessed the onset of the fight in the passageway; N.S., who witnessed the
interactions between the applicant, R.W., and L.N. during the break in the fight; R.D.,
who witnessed those interactions and the stabbing as well; P.V., who witnessed the end
of the fight from his bunk near the applicant’s locker; and E.G., who witnessed the end
of the fight and took the knife away from the applicant after the stabbing. The applicant
has not proved that these witnesses were more biased against him than any of the other
witnesses, although several of the 194x statements and the more recent statements and
interviews indicate that he was often quarrelsome and had argued with many of the
crew. Nor has he proved that any crewmember who sailed away on the Xxxxxxx would
have recounted the events of that night significantly differently than the seven who
stayed behind in Xxxxx. In addition, the captain of the Xxxxxxx wrote in his statement
in the F.B.I. report that although the ship was under orders to sail to the Far East, if
further witnesses were needed for the applicant’s trial, they could be reached through
Coast Guard Headquarters in Washington, D.C. Therefore, the Board finds that the
applicant has not proved by a preponderance of the evidence that either the Coast
Guard or the Navy committed an injustice by acting in accordance with the law and
delivering the applicant over for civilian prosecution and by leaving behind the seven
sailors to serve as witnesses.
Self-Defense
50.
The applicant alleged that he was wrongly convicted and awarded an
undesirable discharge by the Coast Guard based on that conviction because he stabbed
L.S. in self-defense. He alleged that the record shows that he had retreated “to the wall”
and was being viciously beaten and choked in a racist attack by L.S. when he reached
for his knife. For the use of deadly force to be justified, a person must reasonably
believe that it is necessary to protect himself from being killed or severely injured, and
he cannot have provoked the use of force against himself in the same encounter or use
the deadly force when he could retreat to safety.135 Under Anderson v. United States, 170
U.S. 481, 508 (1989), a person must have a reasonable belief that he is in imminent dan-
ger of death or great bodily harm to justify killing his attacker. Under Allen v. United
States, 164 U.S. 492, 498 (1896), not every ordinary assault justifies homicide; one must
reasonably believe that one’s life is in peril.
51.
The Chief Counsel argued that the applicant should be barred from
claiming self-defense because he was intoxicated. However, as the applicant argued,
becoming intoxicated should not deprive a man of the right to defend himself from
physical assault. Therefore, although as indicated in Finding 8, the applicant drank at
least five to eight ounces of whiskey that evening and was still, according to the doctor,
135 COMPILED LAWS OF XXXXX § 4766 (1933); see also American Law Institute, MODEL PENAL CODE, OFFICIAL
DRAFT § 3.04(2)(b) (1962).
52.
moderately intoxicated more than two hours after the stabbing, the Board finds that the
applicant’s intoxication does not bar him from claiming he stabbed L.S. in self-defense.
Because the preponderance of the evidence indicates that the applicant was moderately
intoxicated, however, the Board finds that the fact that he used deadly force is not pro-
bative of whether a reasonable (sober) person in his place would have felt the need to
use deadly force. His intoxication prevents his own actions from being considered evi-
dence of what a “reasonable person” would have done in response to L.S.’s assault.
In light of the evidence described in Findings 19 through 23, the Board
finds that the applicant has not proved by a preponderance of the evidence that he was
being beaten fiercely by L.S. before he grabbed his knife. As indicated in Findings 19
and 21, the majority of the statements by eyewitnesses, including the applicant’s own
194x statement, indicate that L.S. had swung at the applicant a few times, but that these
hits were warded off by the applicant. The applicant himself told the F.B.I. in 194x that
L.S. tried to hit him, but he was “knocking [L.S.’s] blows off with my arms.” As indi-
cated in Finding 22, eyewitnesses stated that even while L.S. was swinging at him, the
applicant was able to step toward his locker, turn his back to L.S., drop to one knee,
open his locker, and grab his knife. In his own statement to the F.B.I., the applicant did
not mention being hit or kicked at all after he ran around the bunks, though witnesses
indicated that the applicant was warding off L.S.’s blows as he backed down the aisle
and that L.S. kicked him after he knelt by his locker. Moreover, as stated in Finding 37,
the applicant has not proved by a preponderance of the evidence that L.S. was assault-
ing the applicant because he was black rather than because he had earlier kicked L.S.
twice in the abdomen, including once in the groin.
54.
53. As stated in Finding 23, the Board finds that the applicant has not proved
by a preponderance of the evidence that he was being choked when he grabbed his
knife and stabbed L.S. As indicated in Findings 22 and 23, eyewitnesses told the F.B.I.
that after the applicant knelt to get his knife, L.S. kicked him and then stooped over him
and tried to pull him to his feet, saying “Stand up and fight like a man.” As shown in
Finding 23, three witnesses stated that L.S. was trying to pull the applicant up by his
shoulders or jumper; three witnesses said that they could not see exactly how L.S. was
trying to pull the applicant to his feet but that he held him around his head, neck, or
shoulders; and P.V., who apparently was closest to the combatants, stated that L.S. did
not choke the applicant or hold his neck. Moreover, nothing in the record indicates that
L.S.’s attempt to make the applicant stand up lasted more than a few seconds, and the
ship’s doctor found no evidence that the applicant had been choked. In addition, none
of the statements in the record supports the applicant’s allegation that he was being
choked when he rose to his feet and stabbed L.S.
The applicant alleged that his use of deadly force was justified because, by
going to his bunk, he had retreated “to the wall.” As indicated in Finding 16, however,
witnesses stated that the applicant was advised to seek the protection of the Officer of
the Day but did not do so. Instead, as indicated in Finding 17, he got his knife out of his
locker and tucked it in the top of his trousers. In addition, as shown in Finding 20, after
L.S. entered berthing compartment 202 by the port-side hatch from compartment 201
and began swinging at the applicant near his locker on the port side, the applicant ran
away but, instead of exiting through one of the four hatches or going up the double
ladder, he circled around the bunks back to his locker where he had just put his knife
away. In light of this evidence, the Board finds that the applicant has not proved by a
preponderance of the evidence that his return to the aisle beside his bunk and locker
constituted a retreat “to the wall.”
55.
The applicant alleged that as a black sailor on a ship with many white
racist sailors, at least one of whom had recently threatened him with a pipe and lynch-
ing if he “cut” L.S., his belief that L.S. might kill him or cause him serious injury was
reasonable. However, as Findings 17 and 18 indicate, he has not proved that R.W., the
Master at Arms, threatened to lynch him, and whatever threatening statements he did
make were warnings aimed at preventing the applicant from using his knife to “cut”
L.S. after he had tucked it in the top of his trousers before L.S. entered the compartment.
There is no evidence that L.S. had made such threats to the applicant, and R.W. had not
touched the applicant, though he had plenty of opportunity to do so. Moreover, as
Findings 19, 20, and 22 indicate, the other sailors in the compartment had tried to stop
L.S. physically and were telling the combatants to “break it up” and “let him alone”
when the applicant stabbed L.S. There is no evidence that the applicant had reason to
fear that, if L.S.’s attack did turn serious, they would all stand by while L.S. choked the
applicant or beat him to death. Furthermore, as indicated in Finding 24, the applicant
did not try to ward L.S. off once he got hold of his knife. Instead, he rose to his feet,
turned to face L.S., and immediately threw his right arm over L.S.’s shoulder to stab
him three times in the back. Therefore, the Board finds that the applicant has not
proved by a preponderance of the evidence that his resort to deadly force was reason-
able and that a sober African American sailor in his position would reasonably have
concluded that it was necessary to stab L.S. three times in the back to avoid death or
grievous bodily injury. This conclusion is also supported by the fact that after the stab-
bing, many of the witnesses were very angry at the applicant and did not understand
why he had stabbed L.S., as they punched him and asked him why he had “cut” L.S.
56. As Findings 11 and 25 indicate, the onset of the fight occurred some six to
ten minutes prior to the stabbing, in a passageway near the Mess Deck, when the appli-
cant intervened as A.A. was helping R.Y. to his bunk. The applicant told the F.B.I. that
L.S. shoved him first, but the statements of A.A. and F.Z. indicate that it was the appli-
cant who started the fight by insulting R.Y. and shoving L.S. All of the witnesses,
including the applicant, told the F.B.I. that, after L.S. shoved him, the applicant kicked
L.S. in the abdomen, backed away from him, braced himself, and kicked L.S., who had
followed him, again. Therefore, the Board finds that the applicant has not proved by a
preponderance of the evidence that he did not provoke the fight that shortly thereafter
57.
ended by him stabbing L.S. three times in the back. Although the applicant alleged in
his application to the Board that he would never have provoked a fight with a larger
man, his intoxication fully explains his apparently unreasonable behavior in the pas-
sageway.
The Board finds that the applicant has not proved by a preponderance of
the evidence that his use of deadly force against L.S. was so clearly a matter of self-
defense that (a) the Coast Guard erred in handing him over for prosecution for murder;
(b) his arraignments for first-degree and then second-degree murder were unjust; or (c)
his conviction for manslaughter was unjust. As Findings 15, 17, and 20 through 22 indi-
cate, after kicking L.S. twice in the passageway, he chose three times to arm himself
with a weapon instead of seeking the protection of the Officer of the Day. Moreover,
although L.S. was clearly angry and intent on fighting him, the applicant has not
proved that a reasonable, sober person would have believed that he was in imminent
danger of death or grievous bodily injury under these circumstances, as required under
Anderson v. United States, 170 U.S. 481, 508 (1989). The applicant’s and witnesses’
accounts indicate that L.S. swung at the applicant several times, but the applicant
warded off his blows. None of the witnesses’ 194x statements indicates that L.S. was
committing more than an “ordinary assault” upon the applicant, which does not justify
use of a deadly weapon under Allen v. United States, 164 U.S. 492, 498 (1896). L.S.’s
behavior in the compartment, though violent, was not indicative of any lethal intent. In
addition, the applicant was well able to elude L.S., as shown by his actions in the pas-
sageway, but chose instead to circle a tier of bunks and return to his locker for his knife
after he ran from L.S. in the compartment. Unlike the defendant in Huber v. United
States, 259 F. 766 (9th Cir. 1919), at the moment of the killing, the applicant was not
pinned down and being choked with both hands; he was rising to his feet and turning
to face L.S. As indicated in Finding 24, although the applicant informed L.S. he had a
knife as he rose to his feet, he did not pause to see if he could ward L.S. off with it but
immediately pulled L.S. closer to stab him. As the Court of Appeals of Alaska found in
Alaska v. Walker, 887 P.2d 971, 978 (1994), even if a person faces a threat of imminent
death or serious injury, he or she is allowed to use only the force necessary to avert the
danger. The Board finds that the applicant has not proved by a preponderance of the
evidence that the threat from L.S. was so grave that it required the applicant to stab him
three times in the back. Nor has he proved that if he had gone to trial rather than plead
guilty to manslaughter or been tried by court-martial, a fair jury presented with all of
the witnesses’ testimony would have acquitted him based on a claim of self-defense.
58.
The third, dissenting member of this Board, who finds that the applicant
has proved that he stabbed L.S. in self-defense, bases her decision almost entirely upon
speculation about what might have happened in the berthing compartment that the
witnesses failed to describe or that the F.B.I. agent left out of his report. While it may be
remotely conceivable that (a) all of the sailors conspired to tell similar false or mislead-
ing stories about the onset and character of the fight, and the F.B.I. agent falsified the
applicant’s own statement to support many of their allegations; (b) all of the sailors
independently happened to tell the F.B.I. agent similar false or misleading stories about
the onset and character of the fight, and the F.B.I. agent falsified the applicant’s own
statement to support many of their allegations; or (c) the F.B.I. agent edited or otherwise
falsified all of the statements to obscure the onset of the fight or to minimize evidence of
its ferocity, the applicant has not proven any such scenario. The Board is not unmindful
of the fact that racism was generally more overt and accepted 50 years ago than it is
today and that the captain’s actions after the stabbing indicate that he feared retaliatory
racial violence by some of the crewmembers. However, these facts do not prove that
L.S.’s assault on the applicant was caused by racism or was more severe than is indi-
cated by the witnesses’ statements in the F.B.I. report.
Due Process—Grand Jury
59.
The applicant alleged that he was denied due process because the wit-
nesses listed on his indictment did not appear before the grand jury. He submitted one
recent affidavit from a witness who claimed that he never appeared before a grand jury
and another from a witness who indicated that he cannot remember whether he
appeared before a grand jury. However, court records indicate that the applicant was
properly indicted. Under § 5219 of the Compiled Laws of Xxxxx, 1933, the applicant’s
indictment was legally sufficient. Furthermore, the Board notes that in Costello v. United
States, 350 U.S. 359 (1956), the Supreme Court determined that “neither the Fifth
Amendment nor any other constitutional provision prescribes the kind of evidence
upon which grand juries must act.” The hearsay rules do not apply to grand jury pro-
ceedings. Therefore, even if the applicant’s allegations were true, and no witnesses
appeared before the grand jury, the applicant, like the petitioner in Costello, could have
been indicted on the basis of the F.B.I. report alone. The applicant has not proved by a
preponderance of the evidence that his indictment was fraudulent, erroneous, or legally
insufficient in any way.
Due Process—Right to Counsel
60.
The applicant alleged that he was denied his Sixth Amendment right to
counsel, like the petitioners in Powell v. Alabama, 287 U.S. 45 (1932). Under Powell and
similar cases, defendants have a right to effective counsel, which includes the opportu-
nity to consult with an attorney who investigates and prepares the case.136 In Powell, the
petitioners were not assigned counsel until the moment before their trial began.137
However, as shown in Findings 39 and 40, the applicant was assigned counsel some-
time between his indictment on January 26, 194x, and February 1, 194x, when he
appeared in court with his attorney to plead not guilty to second-degree murder. An
136 Powell v. Alabama, 287 U.S. 45, 59-60 (1932).
137 Id. at 56.
affidavit of an attorney who practiced in the Territory of Xxxxx indicates that defen-
dants who could not afford attorneys were assigned counsel at their arraignments. The
applicant was arraigned on January 29, 194x. He alleged that his attorney never met
with him prior to February 13th, but these allegations are strongly contradicted by the
court documents, as stated in Finding 42. The applicant also alleged that his attorney
never investigated the facts of his case. Because the attorney is long deceased, this is
unknowable. However, according to the court records, the applicant’s attorney proba-
bly had 15 days (between January 29 and February 13, 194x) and, at the least, had 12
days (from February 1 to February 13, 194x), in which to investigate the applicant’s case
and consider how best to proceed. Although the judge set the trial for February 8, 194x,
the attorney apparently requested and was granted a continuance until February 13th.
Moreover, in light of the evidence against the applicant, the Board finds that the attor-
ney may well have acted in the applicant’s best interest when he advised him to plead
guilty to manslaughter. Therefore, the applicant has not proved by the preponderance
of the evidence that he was denied his Sixth Amendment right to counsel.
Due Process—Right to Present and Confront Witnesses
61.
62.
The applicant argued that even if the Board finds he did voluntarily plead
guilty to manslaughter, under Johnson v. Zerbst, 304 U.S. 458 (1938), it should not be held
against him because his plea cannot be considered a waiver of his right to a fair trial.
He alleged that he could never have received a fair trial because he was denied access to
witnesses and so had no chance to present a meaningful defense. According to the
statements collected by the F.B.I., at least eleven sailors (R.W., N.S., E.G., R.D., P.V.,
B.C., J.C., R.C., R.A., H.R., and P.B.) were in the berthing compartment when the appli-
cant stabbed L.S. At least five other sailors (J.M., A.A., F.Z., R.Y., and F.W.) witnessed
events leading up to the stabbing. Of these sixteen known witnesses, the Xxxxxxx left
behind seven (J.M., F.Z., R.W., N.S., E.G., R.D., and P.V.) to serve as witnesses at the
applicant’s trial. As stated in Finding 49, there is no evidence that the Coast Guard
chose to leave behind as witnesses sailors who were biased against the applicant. The
194x statements of the seven left behind are not significantly different in tone or content
from the others. Furthermore, there is no evidence that any of the witnesses who
remained on the Xxxxxxx would have contradicted any of the testimony of the seven
left behind. In addition, the Xxxxxxx’s captain informed the F.B.I. agent and, through
his statement, the District Attorney that other witnesses could be contacted through the
Coast Guard if needed. The applicant has not proved by a preponderance of the evi-
dence that his attorney was denied access to the evidence in the F.B.I. report or to the
witnesses in Xxxxx or that his attorney did not know that the Coast Guard would
cooperate to make other witnesses available. Nor has he proved that the Coast Guard
would have required the applicant to pay the witnesses’ travel costs.
Therefore, the applicant has not proved by a preponderance of the evi-
dence that the Coast Guard or the circumstances of his case denied him access to wit-
nesses from the Xxxxxxx whose testimony might have made a difference in the outcome
of his case if it had gone to trial. In addition, the Board notes that if, as the applicant
alleged, the fight started in a bar in Xxxxxxx after he danced with a white woman, the
woman and other civilian witnesses to that incident were presumably still living in
Xxxxxxx and could easily be subpoenaed by the court in Xxxxx. Because Xxxxxxx was
in the court’s district, the court would have paid the witnesses’ travel expenses.138
Effect of Pardon
63.
The applicant alleged that his pardon by the Governor of Xxxxx vacated
his conviction and so the basis for his undesirable discharge no longer exists. However,
the courts have long established that a pardon issued by a state governor has no legal
effect on any disability or punishment imposed by the federal government as a result of
the pardoned individual’s original conviction.139 Moreover, as the Supreme Court of
Missouri stated in State v. Jacobson, 348 Mo. 258, 152 S.W.2d 1061 (1949), even if a con-
victed criminal has been pardoned, “the fact that he was convicted remains.”140 There-
fore, the pardon granted by the Governor of Xxxxx had no legal effect on the applicant’s
military discharge or on his convicted status for the purpose of his discharge.
64. Although the pardon had no legal effect on the applicant’s discharge, the
Board must consider whether justice requires that the applicant’s discharge be
upgraded because of the pardon. The Governor based his pardon on (a) the applicant’s
having served his sentence, (b) the applicant’s “exemplary life since his release from
custody,” (c) the testimony of “several eyewitnesses” supporting his allegation of self-
defense in their 1996 affidavits, and (d) the “unusual conditions of wartime” that made
many eyewitnesses “unavailable to testify.”
(a)
The Governor’s pardon indicates that he thought the applicant had
served his entire five-year sentence, but the applicant was released early, in November
194x. More significantly, the Board finds that having served one’s sentence is an insuf-
ficient basis for upgrading a military discharge.
(b)
The Governor concluded that the applicant has led an “exemplary
life” because, since his release from prison in 194x, he has not been charged with a
crime, and he was gainfully employed until his retirement. The record also indicates
that he raised a family. However, the General Counsel of the Department of Transpor-
tation has ruled that “the Board should not upgrade discharges solely on the basis of
138 COMPILED LAWS OF XXXXX § 5423 (1933).
139 Thrall v. Wolfe, 503 F.2d 313, 315-16 (7th Cir. 1974), cert. denied, 420 U.S. 972 (1975); Knote v. United States,
95 U.S. 149, 153 (1877).
140 State v. Jacobson, 348 Mo. 258, 262-63 (1949).
(c)
post-service conduct.”141 Therefore, the Board finds that the applicant’s gainful
employment and law-abiding life since his release from prison are insufficient to justify
upgrading his discharge.
The evidence in the 1996 affidavits indicating that the attack on the
applicant was racially motivated is contradicted by the statements made by eyewit-
nesses in 194x to the F.B.I., as shown in Findings 7, 11, and 37. The Governor did not
have a legible copy of the F.B.I. report when he granted the pardon. Moreover, the
Governor said at the press conference at which he signed the pardon that twelve of the
recent affidavits submitted by the applicant stated that he stabbed L.S. in self-defense,
and the pardon indicates that the Governor believed that “several eyewitnesses” had
attested that the stabbing was done in self-defense. However, in only two of the recent
affidavits did crewmembers conclude that that the stabbing was committed in self-
defense, and neither of the two, N.S. and L.B., witnessed much of the fight.142 M.Z.
described some of the fighting between L.S. and the applicant but did not draw any
conclusion about self-defense. Three other recent affiants, W.D., W.R., and A.P., who
did not witness any of the fighting, indicated only that they had been told that the
applicant was getting beaten up.
(d) When the Governor found that the applicant had been denied
access to witnesses, he did not have a readable copy of the F.B.I. report. Therefore, he
could not know how many witnesses there were, how many were left behind in Xxxxx,
what the absent witnesses’ testimony would have been, or whether the Coast Guard
was willing to make additional witnesses available for the trial. As explained in Find-
ing 49, the applicant has not proved that the witnesses who remained on the Xxxxxxx
were unavailable or that the Coast Guard or the circumstances of his case denied him
access to witnesses whose testimony might have made a difference in the outcome of
his case.
Therefore, although the Governor pardoned the applicant, the Board finds that
the pardon does not require a grant of relief in equity. The evidence contained in the
legible copy of the F.B.I. report that strongly contradicts many of the applicant’s allega-
tions was not in the record of this case considered by the Governor and his Executive
Clemency Board at the time of the pardon.
Effect of the Letter of the Deputy Chief of the Congressional Affairs Staff
65.
In a 1993 letter to Senator xxxxxxx, the Deputy Chief of the Congressional
Affairs Staff stated that “[a]s a result of [the applicant’s] conviction, he was awarded an
141 Memorandum of the General Counsel to J. Warner Mills, et al., Board for Correction of Military
Records (July 8, 1976).
142 In 194x, N.S. told the F.B.I. that he was in the compartment but not near the combatants, and L.B. said
that he did not see any punches thrown because he woke up only seconds before the stabbing.
Undesirable Discharge by the Coast Guard in accordance with service directives. …
The Undesirable Discharge was based on the Federal conviction … . Should [the appli-
cant’s] Federal conviction for manslaughter be overturned, he may seek a reconsidera-
tion of his case by the Board for Correction of Military Records based on this new
information.” Therefore, the applicant alleged, his conviction was the sole basis for his
undesirable discharge, and because it has been removed by the pardon, his discharge
should be upgraded. However, as explained in Findings 63 and 64, the pardon had no
effect on the applicant’s conviction for the purposes of his federal military discharge.
Furthermore, the letter does not state that the discharge will be upgraded if the appli-
cant is pardoned; it indicates only that, if a court overturned the applicant’s conviction,
he could apply to this Board with the new information.
Grounds for Discharge
66.
The applicant alleged that, absent his conviction for manslaughter, he
would have received an honorable discharge. He alleged that his 194x summary court-
martial for stabbing another sailor with a knife would have been ignored. He submitted
an affidavit by another sailor whose deck court-martial for being AWOL one day was
apparently ignored when his command granted him an honorable discharge. When the
applicant was discharged on April 27, 194x, the Coast Guard was no longer operating
under the auspices of the Navy.143 Under the Coast Guard’s regulations in effect at that
time, an honorable discharge could be received by members whose average marks were
no lower than 2.75 in proficiency or 3.0 in conduct and whose records showed no more
than one summary court-martial or no more than two deck court-martials.144 Members
who did not meet these criteria were issued general discharges unless they committed
an offense that caused them to receive an undesirable or dishonorable discharge. Trial
and conviction by a civilian court resorting in confinement for any period resulted in an
undesirable discharge.145 Because the applicant has not proved by a preponderance of
the evidence that he acted in self-defense or was denied due process, the Board finds
that the applicant has not proved that the Coast Guard committed any error or injustice
in awarding him an undesirable discharge based on his conviction for manslaughter.
Moreover, he has not proved that absent his conviction for manslaughter, he would
have received an honorable discharge. His record contains several negative entries,
including the 194x summary court-martial for stabbing his friend and apprehension by
military authorities after being AWOL for over a week. Under today’s regulations, the
applicant likely would have received a discharge under other than honorable conditions
or a bad conduct or dishonorable discharge.146
143 Exec. Order No. 9666 (December 28, 1945).
144 United States Coast Guard, PERSONNEL INSTRUCTIONS, Art. 4592(1) (1934).
145 Id. Arts. 4592(5) and 584(4).
146 United States Coast Guard, PERSONNEL MANUAL (COMDTINST M1000.6A), Arts. 12-B-2(f) and 12-B-
18(b)(1) (2000).
CONCLUSION
67.
The applicant has not proved by a preponderance of the evidence that his
stabbing of L.S. was justified on the grounds of self-defense, that he was denied due
process, or that his undesirable discharge was erroneous or unjust. Although he pre-
sented a few recent statements by crewmembers supporting some of his allegations, the
allegations that constitute the gravamen of his complaint were thoroughly contradicted
by detailed court documents and by the 194x statements of the applicant himself and of
other eyewitnesses, which were included in the F.B.I. report. For the balance of his life,
the applicant has been law-abiding and gainfully employed, but this is not a sufficient
legal basis for upgrading the character of his military discharge. Therefore, the appli-
cant’s request should be denied.
The application for correction of the military record of former fireman first class,
ORDER
(see dissenting opinion)
Sharon Y. Vaughn
xxxxxxxxxxxxxxxxxxxxxxxxxxxxx, USCGR, is hereby denied.
David M. Wiegand
Betsy L. Wolf
DEPARTMENT OF TRANSPORTATION
BOARD FOR CORRECTION OF MILITARY RECORDS
Application for the Correction of
the Coast Guard Record of:
BCMR Docket No. 1998-087
DECISION OF THE DEPUTY GENERAL COUNSEL
ACTING UNDER DELEGATED AUTHORITY
___X__ I approve the Board’s majority recommended Final Decision on
Reconsideration.
______ I approve the recommended Dissenting Opinion on Reconsideration.
DATE: ____________________
__________________________________
Rosalind A. Knapp
Deputy General Counsel
as designated to act for the
Secretary of Transportation
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