MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 September 2002
	DOCKET NUMBER:   AR2002067317

	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. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Donald P. Hupman, Jr.		Member	
	Mr. William D. Powers		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 1945 special court-martial conviction be set aside.

APPLICANT STATES:  That, in March 1945, his unit was located in the town of Rheinhausen, in the Rhineland Palatinate of Germany.  On 20 March 1945, his company commander summoned him and instructed him to find a civilian woman who could launder his [company commander's] uniforms.  He states that he was aware of Division policy prohibiting soldiers from fraternizing with German civilians, but he had been ordered by his company commander and did not feel that having uniforms laundered constituted fraternization.  He found a house near his company headquarters and paid a German lady to wash the uniforms.  Seen leaving the German home by a Division officer, he was later informed that he would be court-martialed for fraternization.  His company commander supported him at his special court-martial, but he was convicted nonetheless and sentenced to 3 months of extra duty (kitchen police) and a fine of $120.00.  He adds that he lived with this conviction for 55 years until President Clinton pardoned him on 22 December 2000.  He would now like this Board to completely set aside his unjust conviction.

COUNSEL CONTENDS:  In effect, that the applicant's conviction should be overturned and expunged from his records.  He states that the Army Board for Correction of Military Records (ABCMR) can set aside the applicant's conviction because he was convicted under the Articles of War.  The counsel submitted a brief with supporting documentation, as well as a book written by the applicant ("Foot Soldier:  A Combat Infantryman's War in Europe") in support of his request.

EVIDENCE OF RECORD:  The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from the applicant’s WD AGO Form 53-55 (Report of Separation and Honorable Discharge), reconstructed records, and documents submitted by the applicant.  It is noted that the Board tried, but was unable to obtain a copy of the applicant's Record of Trial (ROT) of his court-martial.

The applicant was inducted into the Army of the United States on 21 September 1943 and entered active duty on 12 October 1943.  Assigned to the 333rd Infantry Regiment, 84th Infantry Division, he departed the United States on 20 September 1944 and arrived in Great Britain on 1 October 1944.  During the period 2-4 November 1944, the Division landed across Omaha Beach, Normandy, France, and moved to the vicinity of Gulpen, Holland, during the next several days. 

Moving into Belgium, the 84th Infantry Division entered combat on 18 November 1944 with an attack on Geilenkirchen, Germany, as part of the larger offensive in the Roer Valley in order to reduce the German salient north of Aachen.  Taking Geilenkirchen on 19 November, the applicant's 333rd Infantry Regiment pushed forward to occupy the town of Immendorf, Germany.  The regiment then assaulted Muellendorf on 22 November 1944, but lost advance elements in the attack and the offensive was halted the next day as efforts by the rest of the Division to take Wurm and Beeck also failed.

Following a short rest, the 84th returned to the fight, taking Wurm and Mullendorf before moving to help stem the German winter offensive.  From 24-28 December 1944, the 84th Division threw off German attacks during the Battle of the Bulge, recapturing the Belgian towns of Verdenne, Beffe and Devantave during the period 4-6 January 1945, and seizing Laroche by 11 January 1945.

After a 5-day respite, the 84th resumed the offensive toward Germany.  By 5 March 1945, the Division reached the banks of the Rhine River.  During the remainder of the month of March, the Division trained along the west bank of the Rhine.  Also during this period, the applicant's unit occupied the German town of Rheinhausen.  It was in the town of Rheinhausen on 20 March 1945 that the applicant was observed visiting a German address and accused of fraternizing.

Court-martial charges were preferred against the applicant for two specifications of wrongfully fraternizing with a German civilian by visiting her home in violation of a 23 November 1944 memorandum prohibiting fraternization with enemy civilians issued by the Commanding General, 84th Infantry Division.  According to the applicant, during his special court-martial, he maintained that his company commander told him to go into the village and find a German woman to wash his [commander's] clothes. The applicant stated that he returned on the next day to have his own clothes washed.  He also stated that because he spoke some German, he conversed with the lady and her daughter while she washed the clothes.

The applicant pled not guilty to both specifications, but was found guilty of both specifications.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $40.00 pay per month for 6 months.  The sentence was adjudged on 31 March 1945.  The sentence was approved, but the portion pertaining to confinement at hard labor was mitigated to hard labor without confinement for 3 months and restriction to the company area for 3 months; the forfeiture was mitigated to $40.00 pay per month for 3 months.  The sentence, having been so modified, was duly executed.

On 28 March 1946, the applicant was honorably separated from the Army under the provisions of Army Regulation (AR) 615-365 for the convenience of the government - demobilization.  He was credited with 2 years, 5 months, and 18 days of creditable, active military service.  

On 22 December 2000, the applicant received a full and unconditional Presidential pardon for his special court-martial conviction while serving in the United States Army.  It is noted that a Presidential pardon is only a sign of forgiveness; that it does not erase or expunge the record of the conviction, nor does it indicate innocence.  

Army Regulation 615-365, then in effect, set forth the conditions under which enlisted personnel could be discharged or released from active duty for the convenience of the Government.  This AR was used in conjunction with AR 600-443 to provide a narrative reason for separation.

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.  The Commanding General, 84th Infantry Division, issued a memorandum prohibiting fraternization with enemy civilians.  Most probably, this policy was implemented in order to preclude the inadvertent transfer of military information to the enemy.  The applicant had a responsibility to obey all lawful orders, to include the non-fraternization memorandum.  He also had a responsibility to refuse to obey illegal orders.  Because the company commander's order to find a German woman to wash clothes violated the Commanding General's non-fraternization policy, it was illegal and without force.  The applicant should not have obeyed it.

2.  The applicant's ROT was not available.  The Board notes that the applicant was dealt with in a lenient fashion by the special court-martial; he did not receive a punitive discharge or a reduction in rank, and his sentence to confinement and forfeiture of pay were reduced.  This would suggest that the court, for whatever reason, did not view the applicant's offense as particularly serious.  However, the command could not overlook the applicant's misconduct without sending a signal that fraternization, under certain circumstances, was acceptable behavior.

3.  Without a copy of the ROT, the Board presumes regularity in the Government's prosecution of the applicant's case; that court-martial was warranted by the nature and circumstances of the offense charged; and the conviction and sentence were effected in accordance with applicable law and regulations, then in effect.

4.  The Board acknowledges the Presidential pardon received by the applicant; however, such pardon does not warrant setting aside the applicant's conviction.

5.  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.

6.  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

__jns___  __dph___  __wdb___  DENY APPLICATION

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

INDEX

CASE ID	AR2002067317	
SUFFIX		
RECON		
DATE BOARDED	20020912	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19460328	
DISCHARGE AUTHORITY	AR 615-365	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.9405	
2.		
3.		
4.		
5.		
6.