PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            24 November 1999                  
	DOCKET NUMBER:   AR1999023300

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor Jr.		Chairperson	
	Mr. Robert G. Hinkle		Member	
	Mr. Lester Echols		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his special court-martial conviction be set aside; that he be restored to his former rank of sergeant; and that he be afforded other remedies as appropriate.

3.  The applicant states that his conviction by a special court-martial was unjust, and that a co-defendant’s conviction has already been set aside.  In support of his application, he provides a copy of his WD AGO Form 53-55, Enlisted Record and Report of Separation—Honorable Discharge; a copy of wounded-in-action lists for the 442nd RCT showing that he was a sergeant and twice wounded; a copy of the co-defendant’s Proceedings before this Board; and a copy of The Judge Advocate General’s action setting aside the co-defendant’s conviction.

4.  The applicant’s military records records were lost or destroyed in the National Personnel Records Center fire of 1973.  What few records exist show that he was inducted into the Army of the United States on 24 March 1943 and assigned to the 442nd Regimental Combat Team (RCT) as an infantryman.  He rose to the rank of sergeant.

5.  The 442nd RCT was assigned to the European Theater of Operations and the applicant saw combat in four campaigns—Rome-Arno, Northern Apennines, Po Valley, and Rhineland.  His awards and decorations included two Purple Heart Medals, the Good Conduct Medal, the American Campaign Service Medal, the European-African-Middle Eastern Campaign Medal with four bronze battle stars, the Asiatic-Pacific Campaign Medal, the World War II Victory Medal, the Distinguished Unit Badge, and the Combat Infantryman Badge.

6.  In November 1944, the 442nd RCT was withdrawn from Italy and relocated in Southern France in order to block German forces from pushing down the French coast to Marseilles.  On 14 February 1945, the applicant and many other soldiers from his unit were enjoying R&R (rest and relaxation) near Menton, France.  While in a bar, a scuffle broke out between soldiers of the 442nd RCT and the Military Police (MP).  The applicant and other NCOs helped to restore order; no one was injured and no one was arrested.  The following morning, the battalion commander held a formation at which the applicant and three other soldiers were apprehended and placed in the stockade for being drunk in public and disrespectful toward a commissioned officer (an MP lieutenant).

7.  It took from 15 February to on/about 10 May 1945 for the applicant’s chain of command to court-martial the applicant and two other defendants (the forth defendant died in combat).  During this period, the applicant spent 74 days in confinement interrupted by a period of release in order to participate in combat operations.  Following the end of hostilities, the applicant and two others were court-martialed and convicted because no one would say anything against a fellow soldier.
8.  Although there is no record of his conviction or the complete punishment he received, the record does show that he was reduced to the rank of private and was honorably discharged with that rank on 4 January 1946.

9.  On 31 July 1996, this Board restored a co-defendant’s rank and remitted his fine.  On 9 December 1977, The Judge Advocate General, in the same case, set aside the findings of guilty and the sentence, dismissed all charges and specifications, and restored all rights and privileges.  This action and the Board’s action was based upon statements submitted which show that only one soldier actually became involved in the scuffle with the MPs; the other co-defendants, including the applicant, were merely attempting to restore order.

10.  The Military Justice Act of 1983 (Public Law 98-209), provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial.

CONCLUSIONS:

1.  There are no records documenting the applicant’s court-martial; however, it is known:  that he experienced the same number of days in confinement (74) as his co-defendant, whose records are more complete; and that he was reduced from sergeant to private.

2.  Affidavits from the co-defendant who was granted complete relief by this Board and The Judge Advocate General state that the applicant was one of four soldiers apprehended and charged, and one of three who were court-martialed.  The third defendant has admitted that he alone was involved in the scuffle and that all others, including the applicant, were merely attempting to restore order.  

3.  While the Board cannot, by law, disturb the finality of a court-martial conviction, it can mitigate the punishment when deemed appropriate.  In this situation, the applicant, as an NCO, was attempting to restore order.  When he was identified along with three other soldiers, including the one actually involved in the scuffle with the MPs, no one would step forward and admit guilt, so all were punished.  It would, therefore, be unjust and inequitable, after 55 years, to continue to cause the applicant to suffer the effects of his punishment by a special court-martial conviction.

4.  Because it is impossible to determine the exact nature of the punishment imposed on the applicant (beyond reduction to private), restoration of rank is the only clemency action available to the Board.

5.  The Board notes in reviewing the applicant’s WD AGO Form 53-55 that he did not receive the Bronze Star Medal for service in military operations against an armed enemy.  The Bronze Star Medal was authorized for each soldier who was cited in orders or awarded a certificate for exemplary conduct in ground combat between 7 December 1941 and 2 September 1945 or whose achievement or service during that period was confirmed by documents executed prior to 1 July 1947.  An award of the Combat Infantryman Badge or the Combat Medical Badge is considered to be a citation in orders.  This means, in effect, that the Bronze Star Medal was awarded to soldiers who were authorized either badge for service during World War II.

6.  In view of the foregoing, the applicant’s records should be corrected, but only as recommended below. 

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

a.  by restoring the rank to the individual concerned from that of private to sergeant;

b.  by restoring 74 days of lost time due to confinement; and

c.  by awarding him the Bronze Star Medal for meritorious service.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__RVO__  ___RGH_  __LE___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_RAYMOND V. O’CONNOR JR._
		        CHAIRPERSON

INDEX

CASE ID	AR1999023300	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED		
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19460104	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON	A73.00	
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY	DASA	
ISSUES         1.	105.0000	
2.	110.0000	
3.		
4.		
5.		
6.