PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:           13 May 2003                    
	DOCKET NUMBER:   AR2003088149

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson 		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. Lawrence Foster 		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, in effect, reconsideration of his request that his 1945 special court-martial (SPCM) conviction by set-aside.   

3.  The applicant states through counsel from the American Legion, in effect, that he is being railroaded and that the Army should clear its conscience in regard to this matter.  In his original application, the applicant stated that in March 1945, his unit was located 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.  

4.  The applicant also stated that he was aware of the 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 claimed that he found a house near his company headquarters and paid a German lady to wash 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 the court-martial, but he was convicted nevertheless.  He was sentenced to 3 months of extra duty (kitchen police) and a fine of $120.00.  He added that he lived with the conviction for 55 years until he received a Presidential Pardon on 22 December 2000.  He stated that he now wanted the Board to completely set-aside his unjust conviction.  In support of this request, he provided a brief from legal counsel that was considered by the Board during its original deliberations on this case.  

5.  The Memorandum of Consideration (MOC) of the Board’s 12 September 2002 review of the case (AR2002067317) is incorporated herein by reference as if wholly set forth.  

6.  The applicant’s military records were lost or destroyed in the National Personnel Records Center fire of 1973.  In addition, the Board attempted, but was unable to obtain a copy of the applicant’s Record of Trial (ROT) of his SPCM. 

7.  In March 1945, 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.  

8.  According to the applicant, his company commander testified on his behalf at the special court-martial.  However, in spite of this testimony and the applicant’s not guilty plea, on 31 March 1945, he was found guilty of both specifications.  

9.  On 28 March 1946, the applicant was honorably separated from the Army under the provisions of Army Regulation 615-365, by reason of demobilization. He was credited with 2 years, 5 months, and 18 days of active military service.  

10.  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.  

11.  On 12 September 2002, in response to the applicant’s request that his
court-martial conviction be set-aside, this Board determined that the applicant had failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice, and it denied the requested relief.  

12.  Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  The ABCMR is not an investigative body and must decide cases based on the evidence of record.  Paragraph 2-9 specifies that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

CONCLUSIONS:

1.  The Board notes the reassertion of the applicant and his counsel that his SPCM conviction was unjust and should be set-aside.  However, it finds insufficient evidence to support this claim.  

2.  The Board did not have before it the applicant’s military records or the ROT of his SPCM.  In the absence of the these relevant records or of any independent evidence that shows the applicant’s SPCM conviction was in error or unjust, the Board finds an insufficient evidentiary basis to support granting the requested relief.  The Board concludes that the regulatory burden of proof has not been satisfied and that insufficient evidence exists to overcome the presumption of government regularity in this case.  

3.  Notwithstanding there being insufficient evidence to set-aside the applicant’s SPCM conviction, the Board does find it would serve the interest of equity and justice to place a copy of the Executive Grant of Clemency (Presidential Pardon) granted the applicant on 22 December 2000 in his Official Military Personnel File (OMPF) being maintained at the National Personnel Records Center.  

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by filing a copy of the Executive Grant of Clemency, granted the individual concerned by the President of the United States on 22 December 2000, in his OMPF.

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

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

___TK__  ___LF___  __MP____  DENY APPLICATION

		Margaret K. Patterson
		        CHAIRPERSON

INDEX

CASE ID	AR2003088149	
SUFFIX		
RECON		
DATE BOARDED	2003/05/13	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1946/03/28	
DISCHARGE AUTHORITY	AR 615-365	
DISCHARGE REASON	Demobilization	
BOARD DECISION	GRANT PARTIAL 	
REVIEW AUTHORITY		
ISSUES         1.  30 	105.0000	
2.		
3.		
4.		
5.		
6.