PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:           20 September 2001
	DOCKET NUMBER:   AR2001058963

	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. Carl W. S. Chun		Director	
	Mr. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Mr. Kenneth W. Lapin		Member	
	Ms. Paula Mokulis		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 reconsideration of his previous request to set aside his court-martial conviction or, in the alternative, to upgrade his DD (dishonorable discharge).

3.  The applicant states, through counsel, that he and three fellow soldiers were convicted by a general court-martial on 28 March 1948.  He was specifically convicted of Article of War 64 (willful disobedience), Article of War 69 (breach of peace), and Article of War 96 (drunk and disorderly in uniform).  He was sentenced to 2 years' confinement at hard labor, total forfeiture of all pay and allowances, and a DD.  He adds that his conviction is more than 50 years old and during the rest of his life, he has been a model citizen.  He has worked hard, raised a family, and is now a grandfather of 14 children.  He has never been in trouble with the law and provides police reports to prove this claim.

4.  The applicant's counsel states that this Board has the authority to set aside court-martial convictions under the old Articles of War (convictions prior to 5 May 1950).  Counsel then presents a 12-page argument concerning the adequacy of the applicant's legal representation by a line officer--an Infantry Major--not a legal officer from the Judge Advocate General's Corps.

5.  The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from alternate sources.  He enlisted in the Regular Army on 22 March 1946.  Trained as an armorer (military occupational specialty 511), he was sent to Germany for assignment to Company I, 18th Infantry Regiment.  He arrived in Germany during the month of January 1947.

6.  On the evening of 15 February 1948, the 18th Infantry Regiment Officer-of-the-Guard received word that four unit soldiers were in the town of Friedberg harassing civilians.  He and two other Lieutenants then went to town in a civilian vehicle to find the four soldiers.  The applicant and three other soldiers were located in a beer hall and were escorted outside.  They were ordered to get into the civilian vehicle and refused.  They then departed the area, but were later apprehended by the Military Police in groups of two.  The applicant and another soldier were turned over to the Company I Duty Officer who restricted them to the barracks.  Later they were observed at the Snack Bar and were taken to the Regimental Guardhouse where they remained overnight.

7.  Court-martial charges were preferred against all four soldiers.  The applicant was charged with willful disobedience (Article of War 64), breach of arrest (Article of War 69), and drunk and disorderly in uniform (Article of War 96).  The second soldier was charged with willful disobedience, breach of arrest, drunk and disorderly in uniform, and wrongful destruction of Government property (Article of War 96).  The third soldier was charged with willful disobedience and breach of arrest, and the fourth soldier was charged with willful disobedience.
8.  All four soldiers were tried together by a General Court-Martial.  All members of the court, save the Law Member, were officers assigned to the 18th Infantry Regiment, and neither trial counsel nor defense counsel were lawyers.  The Law Member was a Judge Advocate General's Corps attorney.  The court-martial was held on 25 March 1948 and, contrary to their pleas of not guilty, all four soldiers were found guilty.  The applicant was sentenced to a DD, total forfeiture of all pay and allowances, and 2 years' confinement at hard labor (reduced to 1 year).  The second soldier was sentenced to a DD, total forfeiture, and 4 years' confinement (reduced to 1 year).  The third soldier and fourth soldiers were sentenced DD's, total forfeiture, and confinement for 1 year.

9.  The applicant served his sentence to confinement and his DD was executed on 20 December 1948.  He served a total of 2 years, 11 months, and 4 days of creditable service and had 300 days of lost time due to confinement.  His highest grade held was that of Technician 5th Class (T/5) and, aside from his one court-martial conviction, he had no other nonjudicial or judicial punishments on his record.  He returned to his home of record in the State of Illinois and has resided there to date.  State and Federal criminal record checks revealed that the applicant has no criminal record.

CONCLUSIONS:

1.  Trial by court-martial was conducted under the Article of War, then in effect.  Conviction and discharge were effected in accordance with applicable law and regulations, and the Board finds no indication of procedural errors that would have tended to jeopardize his rights.

2.  The Board finds the applicant's punishment overly harsh given the nature of the offenses charged and the applicant's otherwise satisfactory military record.  In view of this and his more than 50 years of good post-service conduct, the Board believes that the applicant has suffered the stigma of a DD long enough.

3.  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 by voiding the DD now held by the individual concerned and by replacing it with a General Discharge under honorable conditions.

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

BOARD VOTE:  

__RJW__  ___KWL_  ___PM__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond J. Wagner_
		        CHAIRPERSON

INDEX

CASE ID	AR2001058963	
SUFFIX		
RECON	20010608	
DATE BOARDED	20010920	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	19481220	
DISCHARGE AUTHORITY	AR 615-364	
DISCHARGE REASON	A76.00	
BOARD DECISION	GRANT	
REVIEW AUTHORITY	DASA	
ISSUES         1.	105.0000	
2.	110.0000	
3.		
4.		
5.		
6.