MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           22 February 2001                   
	DOCKET NUMBER:   AR2000041896

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

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Ted S. Kanamine		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  That his dishonorable discharge be changed to an honorable discharge, that all traces of his court-martial be removed from his records, and that he receive all benefits due him.

APPLICANT STATES:  That the court-martial hearing should have been halted when he claimed his innocence.  A verbatim transcript of his trial was not made.  His pre-service conduct should not have been considered.  Only two members of the 3-man Board of Review reviewed his case.  He was court-martialed because he received a criminal conviction in a civilian court.  He only pleaded guilty to end the inhuman treatment he, as a black man, received from the police.  He recanted his confession when he returned to military control.  The Memorandum of Consideration dated 11 August 1976 is not available and the case is reviewed de novo.

COUNSEL CONTENDS:  That there are some definite improprieties in law that must be addressed.  Specifically, the claimed coerced guilty plea, racism, and the use of pre-service conduct.  The applicant is a good man. It is now 50 years later and he would like his honor in regards to the military restored.

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the National Personnel Records Center fire in 1973.  The information contained herein was obtained from his record of trial.

The applicant enlisted in the Regular Army on 2 October 1948.  

On 1 September 1949, the applicant was convicted by a summary court-martial of wrongfully taking a motor vehicle belonging to another.

On 22 March 1950, the applicant was convicted by a special court-martial of using threatening and insulting language towards a noncommissioned officer then in the execution of his office. 

On 19 April 1950, a neuropsychiatric evaluation of the applicant revealed a developmental history which included frequent conflicts with civil authorities which culminated in his detention at a training school for boys when he was found guilty of theft.

On 27 April 1950, court-martial charges were preferred against the applicant for stealing a camera in violation of the 93d Article of War.  In the Recommendation for Disposition of Court-Martial Charges, the Division Judge Advocate informed the commanding general that the applicant had been arraigned on a charge of larceny before a civil magistrate, found guilty, the sentence suspended and the applicant remanded to military authorities.  It also noted that he had frequent conflict with civilian authorities during his boyhood.

On 5 May 1950, the applicant pleaded not guilty to but was convicted by a general court-martial of stealing a camera of a value in excess of $50.00.  He was sentenced to a dishonorable discharge, total forfeitures of pay and allowances, and confinement at hard labor for 2 years.  One previous conviction was considered.  A verbatim transcript of the trial is available.

In making its recommendation to the approval authority, the Assistant Division Judge Advocate noted that the applicant stated he made his (civil court) confession only because he was subjected to physical threats and coercion.  However, the arresting officer categorically denied the applicant’s assertions and reaffirmed his prior testimony that the applicant had been properly warned of his constitutional rights against self-incrimination.  The Assistant Division Judge Advocate then noted that the question presented was one of credibility of the witnesses and that the court, in observing the manner, conduct and demeanor of the witnesses, reasonably concluded that the arresting officer was telling the truth.  In making his recommendation for or against clemency, the Assistant Division Judge Advocate noted the applicant’s prior court-martial conviction and his pre-service conduct which included confinement at a boys training school when he was 15.  It was recommended that the sentence be approved and the sentence was so approved on 26 May 1950.

On 15 June 1950, the Office of The Judge Advocate General, Board of Review held the findings of guilty and the sentence to be legally sufficient.  One member of the 3-man board was on leave and did not sign the document.

On 19 June 1950, the applicant was discharged, with a dishonorable discharge, pursuant to his sentence by court-martial.  A Report of Transfer of Discharge,  DD Form 214, is not available.

The Manual for Courts-Martial (MCM) United States, 2000 edition, Rule 306 states that the disposition decision is one of the most important and difficult decisions facing a commander.  Many factors must be taken into consideration and balanced, including the character of the accused.  Rule 1107 states that in determining what sentence should be approved the convening authority should consider all relevant factors including the possibility of rehabilitation and all matters relating to clemency.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.
2.  The applicant’s contention that the court-martial hearing should have been halted when he claimed his innocence has no merit.  He states that he recanted his confession when he was returned to military control and the evidence of record shows that he pleaded not guilty to the charges before the court-martial hearing even began.

3.  The evidence of record shows that a verbatim transcript of the applicant’s trial was made. 

4.  The Board concludes that the applicant’s allegations of coercion and violation of constitutional rights are unsubstantiated.  Since no one else was present during the alleged coercion and intimidation, the issue was one of credibility between the police officer and the applicant.  The Board concludes that, based on the applicant’s trial testimony and additional evidence presented to the court, the court made an assessment that the applicant’s statement was voluntary.  

5.  The Board of Review document indicates that one member was on leave and unavailable to sign the document.  The fact that he was not available to sign the review document does not establish that the member failed to review the case.  The signatures of the other two members of the Board of Review attest to the fact that all three members reviewed the case.

6.  The Board notes that the applicant’s neuropsychiatric evaluation contained references to his juvenile misconduct and adjudication but there is no evidence in the record of trial that the court members were privy to that evaluation.  The document was not marked as an exhibit or referenced during the trial.  It appears the document was attached to the record of trial as an allied pre-trial document.  It may have been improper for the Staff Judge Advocate to have commented on his juvenile record in the post-trial review as juvenile records are not admissible as evidence.  The court-martial, the Staff Judge Advocate, and the convening authority properly considered the applicant’s duty performance, character, and prior conviction.  Although it may have been an error to consider the applicant’s juvenile record, in light of the totality of the circumstances of this case, the Board concludes that it was a harmless error.

7.  The applicant’s conviction by court-martial for the same offense for which he was convicted by a state court was legal.  He was charged and convicted under two different jurisdictions – one state and one federal – circumstances which are still legal today.  

8.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__rvo___  __sk____  __tsk___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000041896	
SUFFIX		
RECON		
DATE BOARDED	20010222	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	19500619	
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.