IN THE CASE OF: BOARD DATE: 29 July 2008 DOCKET NUMBER: AR20080001415 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: The applicant, the daughter of a deceased former service member (FSM), defers to counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests, in effect, a further correction of the FSM’s records to provide adequate compensation for his unjust imprisonment for 2 years by showing he served an additional 10 years on active duty. Counsel also requests a personal appearance hearing. 2. Counsel states that the Army Board for Correction of Military Records (ABCMR) did not address compensation for the 2 years the FSM was unjustly imprisoned. It is the understanding of the applicant and the Committee to Restore the Honor of (the FSM) that the Army’s position is it lacks the authority to grant the requested relief. The applicant and the committee strongly disagree. Indeed, the law requires the Secretary and the ABCMR to exercise the full measure of equity required to make applicants “whole.” The applicant submits that the real question is one of policy. In resolving that question, the applicant and the committee assert it is imperative that the Secretary confer with the Senate and House Armed Services committees to ascertain their views. The applicant and the Committee conclude resoundingly that a modern Army requires an enhanced degree of fairness; that the public’s expectation of relief is expansive; and that comprehensive relief for the FSM requires relief for his unjust and illegal imprisonment. 3. Counsel states that the ABCMR determined that due process violations invalidated the finding of guilty in the FSM’s court-martial. As a result, the ABCMR set aside the court-martial, restored the FSM’s rights and privileges lost as a result of the conviction, promoted the FSM to grade 7, issued an honorable discharge, and issued back pay arising from the corrections to the record. The ABCMR did not recommend, and the Secretary did not approve, relief for the time the FSM spent in prison. The main objective of the applicant is not financial remuneration for themselves but rather to promote remedies for injuries Boards for Correction of Military Records (BCMRs) have not utilized as a result of tradition. The Army’s position is that it lacks authority to compensate former Soldiers for wrongful incarceration. The matter has become a matter of national inquiry. 4. Counsel states that the applicant’s position is threefold: First, the Secretary of the Army does possess the legal authority, through equity, to fashion a remedy for (all) the wrongfully imprisoned members of the Fort Lawton 43; Second, the Secretary should be willing to use that authority as explained below; and Third, prior to exercising that authority, the Secretary should confer with the Armed Services Committees of the Senate and House of Representatives to ensure such a remedy is consistent with their concept of the role of BCMRs. 5. Counsel states that one of the definitive legal opinions regarding BCMRs, 40 Op. Atty Gen. 504 (24 February 1947), contains principles still in effect: First, in enacting the Legislative Reform Act of 1946, it was the intent of Congress to ”free itself from the burden of dealing with” the correction of military records “by private relief bills and to provide a method of their disposition by administrative action.” Second, legislation creating BCMRs was a “remedial provision” that was “to be liberally construed with view to effecting the intended purpose.” Third, effective use of the broad remedial powers Congress granted BCMRs, making it “unnecessary [to] further resort to the old” method of private relief. Fourth, the BCMR process “should not be extended by construction so as to effect a result clearly beyond the purpose of the Congress.” 6. Counsel states that in 1954 the Attorney General determined that the touchstone for the ability of BCMRs to correct injustices was to create military records to remedy the problem. In Caddington v. United States, 147 Court of Claims 629 (1959), the Court reviewed the ABCMR’s decision to promote Lieutenant Colonel Caddington to colonel without back pay. The Court of Claims characterized the ABCMR’s declination to authorize back pay for the promotion as an “illusory and imperfect means” which reflected the ABCMR’s “failure to grasp the real wrong and the real remedy.” The Court of Claims ruled that correcting an injustice “should include every essential benefit” and “that the Secretary and his [B]oards have an abiding moral sanction to determine, insofar as possible, the true nature of an alleged injustice and take steps to grant thorough and fitting relief.” 7. Counsel states that in granting the equity power to Service Secretaries through BCMRs, Congress provided that when laws imposed an unfair hardship on an applicant in a manner inconsistent with the best interest of managing the Armed Forces, Service Secretaries may change the facts of military records entitling service members to previously denied benefits or relief under Congressional statutes and Service regulations. 8. Counsel states that a commander’s obligation to do his utmost to be fair to Soldiers is a touchstone of the military justice system. Even when there is no legal error and equitable relief when traditionally applied by the Board yields no relief for the applicant, relief may be warranted under the public perception test, which is concerned with the maintenance of confidence in the fairness of the military personnel system by military whistleblowers, Soldiers, the public, and Congress. In United States v. Cruz, the Army Court of Military Review explained the public perception test is concerned with the maintenance of confidence in the fairness of the military justice system by military whistleblowers, Soldiers, the public, and Congress. The Court observed the public perception test evolved from the perception of service members and the outcry of the public at the close of World War II that the military justice system was unfair. Through this test, the Board has the opportunity to look at the (FSM’s) case through the lens of its 60-year institutional year history and ascertain if the result is fair in light of a balance of all concerns, including those of the Government and the applicant. 9. Counsel states that Congress delegated the equity power which makes the BCMRs among the most powerful administrative boards in the nation. BCMR’s have powers to change the facts in records or create records, thereby triggering a series of legal entitlements. Given this enormous equity power, the Secretary and the ABCMR are empowered to grant relief for a wrongful incarceration involving deliberate and egregious misconduct by the prosecutor. The problems in this case are so manifest and compelling that the ABCMR should carefully re-examine its prior decision to find that it has the equity power to grant relief. 10. Counsel states that in light of the national scrutiny given this case, the nation’s eyes are on the issue of whether the ABCMR has the authority to reasonably make the mistreated parties whole. Under the proposed standard, prison compensation is triggered when the Secretary and the ABCMR determine that the Army’s extraordinary deprivation of due process flagrantly violated the traditional fairness test and manifestly undermines public confidence in the fairness of the administration of the Army under the public perception test. 11. Counsel states that the applicant and the committee take strong exception to any position that, in cases such as the FSM’s, BCMRs have wide latitude to exercise or decline to exercise equity powers. In Caddington, the Court of Claims has imposed upon the service Secretaries and their BCMRs a moral imperative and directed them to grant comprehensive relief. Under Caddington, BCMRs are not free to grant equitable relief at will; rather, they must apply the available equity required to remedy the applicant’s problem to the maximum extent possible. 12. Counsel states that the Secretary and the ABCMR would have broad latitude and could fashion the remedy they believe appropriate. The applicant recommends a 5 to 1 formula consisting of 5 days of records extension on active duty for each 1 day in prison unjustly. In the FSM’s case, the court-martial sentenced the FSM to confinement at hard labor for 8 years. It is believed that in 1946 a clemency board reduced the sentence to 3 years. Additionally, based on information and belief, the applicant believes the FSM was imprisoned for 2 years, or about 730 days. Applying the proposed formula, 5 days’ credit for each of the 730 days totals 3,650 days, or 10 years. The Secretary and the ABCMR would then correct the record to reflect that the FSM served on active duty for 10 years and the Defense Finance and Accounting Service would be required to issue back pay for 10 years to the applicant. 13. Counsel states that the Army is obligated to formulate a relief and is obligated to inform Representative M___ that the Army possesses equity power to grant some relief to the wrongful incarceration of the Fort Lawton defendants. 14. Counsel provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. The FSM was inducted into the Army on 30 October 1943. 2. On 14 August 1944, three port companies, composed of about 612 “Negro” troops, were stationed in the northwest section of Fort Lawton, WA. They had been alerted and, on the evening of 14 August 1944, were engaged in the final preparation for shipment overseas on the following morning. 3. The 28th Italian Quartermaster Service Unit, consisting of about 206 troops (prisoners of war who volunteered to serve with the U. S. Army after Italy became a co-belligerent), was stationed immediately to the west of the port companies. The members of the Italian unit were employed at various activities at or near Fort Lawton. 4. At about 11:00 p.m. on 14 August 1944, four “Negro” Soldiers were on their way to their respective barracks. They were met by members of the Italian Service Unit. As the two groups passed, at least one of the American Soldiers swore at the Italians, and one of them shouted, “Hey, Italian.” One of the Italians stopped and turned around. An American walked toward the Italian with what appeared to be a knife. The Italian struck the American with his fist, knocking him to the ground. The Italians then ran to their area, pursued for a short distance by the Americans, who threw rocks at them. A short time thereafter, three groups of Soldiers from the port companies went into the Italian area. The number was variously estimated at between 100 and 200. The Americans were armed with stones, knives, shovels, clubs of all sizes and description, and at least one ax, and severe injuries were inflicted upon several Italian soldiers. 5. The body of one Italian was found at about 6:00 a.m. the following morning hanging from a cable which was part of the obstacle course. 6. An Army Inspector General (IG) Department investigation into the riot was conducted. The IG report noted that an MP patrol that was aware of the initial incident did not stop or enter the guardhouse for the purpose of warning the Sergeant of the Guard or anyone else of the imminent riot and failed to telephone any responsible authority of what had taken place or what was obviously about to take place. The IG report noted that the Italian who was later found hung leaped out of a window in a panic during the attack and was immediately seized upon by five “Negro” Soldiers and was last seen being dragged toward the woods west of the Italian area. After the body was discovered, no effort was made to preserve the crime scene. The IG report noted that, previous to the riot, there had been minor altercations in the post exchange between “Negroes” and Italians, and even between Italians and white American Soldiers. The IG report noted that none of the MPs who quelled the riot could or would identify a single “Negro” as having participated in the riot although they were in a fully-lighted orderly room for from 15 to 30 minutes with a large number of the rioters. 7. The IG report was later updated to note that court-martial charges were later brought against the two MPs who first saw the riot forming. Both were charged under the 96th (general article) Article of War with (1) neglect to give, without delay, information of a threatening disturbance to proper authority and (2) failure to use reasonable efforts to prevent destruction of certain government property. In addition, Private L___ was charged under the 96th Article of War for (3) failure to use reasonable efforts to quell a riot, being armed with a service pistol, and under the 61st (absence without leave) Article of War for (4) two specifications of failure to repair at a fixed time and place of duty. Both Soldiers were acquitted of the charges under the 96th Article of War. Private L___ was convicted on the charges under the 61st Article of War. 8. The IG report was classified “Confidential” and was not given to the defense prior to or during the trial. However, the prosecutor was allowed to use statements at trial and, even after doing so, attempted to limit what defense counsel was able to read in the statements given to the IG. Defense counsel repeatedly sought these statements but was denied access by the trial counsel because the IG report was classified “Confidential.” The IG report was reclassified “For Official Use Only” on an unknown date but apparently a number of years after the incident at Fort Lawton. 9. The lead defense counsel had 9 days from service of the charges on the applicant and on 42 other accused to prepare for trial. He advised the court at that time that he interviewed 132 witnesses and had not interviewed some of his clients since the referral of charges. On the first day of trial, the defense requested a 4-day continuance, which was granted by the panel president. 10. Four witnesses for the prosecution testified against the FSM at the trial. Witness Willie E___ testified that the FSM was standing outside the corner of Room Y of the [Italian unit’s] orderly room with a club in his hand. Witness Augusto T___ (an Italian) testified that the FSM entered Door E and went to Door B, and that he had something in his hand, although T___ could not recall exactly what it was. Witnesses Alvin C___ and G___ testified that the FSM was heard to state on the morning following the riot that he “was the first one to attack an Italian.” 11. The FSM testified in his own behalf that he went to bed sometime between 10:30 p.m. and 11:00 p.m., that he was never in the Italian area, and that he did not make the statement attributed to him. Witnesses for the defense testified the FSM was in bed for some time, at least over ten minutes, after the trouble started. It was stipulated that if two of the prosecution witnesses were called as a witness for the FSM they would testify that he was in bed by 11:00 p.m. and that he was in bed when the officer of the day came in after the riot was over. 12. On 18 December 1944, the FSM, a private (grade 7) at the time, was convicted by a general court-martial, in a joint trial with 42 other Soldiers and contrary to his pleas, of committing a riot. Three Soldiers were convicted of an additional charge of manslaughter. Thirteen Soldiers were acquitted. 13. The FSM’s sentence was to be dishonorably discharged, to forfeit all pay and allowances, and to be confined at hard labor for 8 years. He apparently served 2 years in confinement. 14. In the consideration of the FSM’s case on 18 October 2007, the ABCMR found that despite limitations (13 days to prepare for the defense of 43 defendants; no access to the IG report), the Record of Trial showed that the defense team mounted a spirited defense. However, based on several factors it appeared that the Army failed to provide the FSM, and the 43 other Fort Lawton accused, with due process by the standards in place at the time of their trial. The ABCMR found that, while it was not apparent that the defense of the FSM or any one of the other defendants was hampered by the fact the defense counsel could not call any of the co-accused as a defense witness, it was inconceivable that at least some of the accused Soldiers (to include the FSM) were not prejudiced. The ABCMR found that, in the overall context of the FSM’s case, defense counsel’s limited time to prepare was a factor the ABCMR could consider in weighing the overall question of whether the FSM and his co-accused received a fair trial under the circumstances. 15. The ABCMR also found that perhaps the most egregious error occurring in the trial involved the trial counsel’s access to and use of portions of the IG investigation, a right denied defense counsel despite his many requests. Despite the IG report being classified “Confidential,” trial counsel was able to and did use statements obtained in the investigation during trial to, among other things, impeach defense witnesses. The ABCMR found that the failure to release the IG report to defense counsel deprived defense counsel of the opportunity to fully prepare for trial and, even if it were concluded that the evidence supported the findings of guilt for the FSM (or any other defendant), such findings would not be proper since the overall factors in the case rendered the trial fundamentally unfair and improper. 16. Therefore, the ABCMR recommended that the FSM’s conviction be set aside and all rights, privileges and property lost as a result of the conviction restored to him. Since the FSM was an inductee, and since during wartime Soldiers are normally retained until the end of the conflict plus 6 months (the Japanese officially surrendering on 2 September 1945), the ABCMR further recommended that the FSM’s records be corrected to show he was discharged from active duty in the rank of private with an honorable discharge on 2 March 1946 with all due pay and allowances. 17. In Caddington v. United States, 147 Court of Claims 629 (1959), the Court reviewed the ABCMR’s decision to promote Lieutenant Colonel Caddington to colonel without back pay. In 1956, the ABCMR corrected the plaintiff’s records to show he was promoted to colonel effective 13 December 1945 “provided, that the Department of the Army pay no money as a result of this correction of the record.” The correction as worded deprived the plaintiff of the difference between lieutenant colonel and colonel retired pay for the period December 1945 through 1956. 18. The Court of Claims stated, “That plaintiff had been deprived of a very real reward which he had earned was recognized by the Correction Board…And its action in recommending the promotion to colonel reflects an intention to make plaintiff whole. The fact that it attempted to do so through so an illusory and imperfect means indicates a failure to grasp the real wrong and the real remedy. To acknowledge plaintiff’s right to a promotion and at the same time to deprive him of one of the principal benefits of the promotion cannot truly be viewed as such action as would remove an injustice. We think that to confer on plaintiff a fitting recognition of the reward earned by him during months of valiant service more than a promotion in name only is required. An action which is designed to remove an injustice or correct an error, as this one must have been under the statutory enactments, should include every essential benefit…This is not accomplished by simply pinning a badge…on the plaintiff without giving him the rights that ordinarily flow from such a promotion. Under the statute plaintiff’s actual grade of colonel as of the date of his retirement would normally entitle him to retired pay based on a percentage of the pay of a colonel from…that date…” 19. Title 10, U. S. Code, section 1552, provides that the Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. No correction may be made unless the claimant or his heir or legal representative files a request for the correction within three years after he discovers the error or injustice. However, a corrections board may excuse a failure to file within three years after discovery if it finds it to be in the interest of justice. 20. Army Regulation 15-185 governs operations of the ABCMR. Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR. The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. Counsel contended that the ABCMR did not address compensation for the 2 years the FSM was unjustly imprisoned. Counsel contended that the Secretary of the Army does possess the legal authority, through equity, to fashion a remedy for (all) the wrongfully imprisoned members of the Fort Lawton 43; that the Secretary should be willing to use that authority; that, prior to exercising that authority, the Secretary should confer with the Armed Services Committees of the Senate and House of Representatives to ensure such a remedy is consistent with their concept of the role of BCMRs; and that the Secretary should inform Representative M___ that the Army possesses equity power to grant some relief to the wrongful incarceration of the Fort Lawton defendants. 2. Counsel contended that, in the case of Caddington v. United States, 147 Court of Claims 629 (1959), the Court of Claims ruled that correcting an injustice “should include every essential benefit” and “that the Secretary and his [B]oards have an abiding moral sanction to determine, insofar as possible, the true nature of an alleged injustice and take steps to grant thorough and fitting relief.” He contended that in Caddington the Court of Claims has imposed upon the service Secretaries and their BCMRs a moral imperative and directed them to grant comprehensive relief and that under Caddington BCMRs are not free to grant equitable relief at will; rather, they must apply the available equity required to remedy the applicant’s problem to the maximum extent possible. 3. Counsel contended that even when there is no legal error and equitable relief when traditionally applied by the Board yields no relief for the applicant, relief may be warranted under the public perception test, which is concerned with the maintenance of confidence in the fairness of the military personnel system by military whistleblowers, Soldiers, the public, and Congress. 4. Counsel contended that Congress delegated to BCMRs the equity power to change the facts in records or create records, thereby triggering a series of legal entitlements, and the ABCMR should carefully re-examine its prior decision to find that it has the equity power to grant (additional) relief in this case. 5. In formulating equitable relief in this case, counsel and the applicant recommended a 5 to 1 formula consisting of 5 days of records extension on active duty for each 1 day the FSM served in prison unjustly. That is, that the FSM be given 5 days’ credit for each of the 730 days he was unjustly imprisoned, or 10 years. Counsel contended that the ABCMR could then correct the record to reflect that the FSM served on active duty for 10 years and the Defense Finance and Accounting Service would be required to issue back pay for 10 years to the applicant. 6. Regarding counsel’s contentions that the ABCMR or the Secretary should consult the Armed Services Committee in fashioning an appropriate remedy in this case that would apply to all of the Fort Lawton Soldiers convicted at the court-martial at issue, this contention lacks merit. 7. Pursuant to Title 10, U.S. Code, section 1552, the ABCMR does not fashion remedies for groups or classes of applicants or potential applicants. Rather, it may only consider and, when appropriate, grant relief for individual Soldiers. This statute was created to replace private legislation in Congress to correct military records for individual service members. It does not require consultation with Congress on individual cases. For these reasons, the ABCMR does not seek "advisory" opinions from Congress. 8. Regarding counsel’s contention that, under the case of Caddington v. United States, BCMRs must apply the available equity required to remedy the applicant’s problem to the maximum extent possible, it is noted that the Court in Caddington stated the plaintiff had been deprived of a very real reward which he had earned; that to acknowledge plaintiff’s right to a promotion and at the same time to deprive him of one of the principal benefits of the promotion could not be viewed as removing an injustice; that to confer on the plaintiff a fitting recognition of the reward earned by him more than a promotion in name only was required; that an action which was designed to remove an injustice or correct an error should have included every essential benefit; that the plaintiff should have been given the rights that ordinarily flow from such a promotion; and that under the statute the plaintiff’s actual grade of colonel as of the date of his retirement would normally entitle him to retired pay based on a percentage of the pay of a colonel. 9. Counsel, in comparing the FSM’s case with Caddington’s case, recommended the FSM’s records be corrected to show he served on active duty for 10 years to compensate for the 2 years he was unjustly imprisoned, requiring 10 years of back pay to be paid to the applicant. 10. The difference between the FSM’s case and the Caddington case is that counsel’s recommended solution does not “ordinarily flow” from the basic and original records correction in the FSM’s case. When Caddington’s records were corrected to show he was promoted to colonel in December 1945 “one of the principal benefits of the promotion” would have been the receipt of colonel’s pay; that promotion would “normally entitle him” to retired pay based upon the pay of a colonel. Based upon the correction of his records showing he was promoted to colonel in December 1945, he “had earned” the pay and retired pay of a colonel effective December 1945. 11. In the FSM’s case, the “rights that ordinarily flow” from the records correction to show his conviction was overturned was that privileges and property lost as a result of the conviction were restored to him. Therefore, he was given the same rights that thousands of other World War II inductees received – retention on active duty until the end of the conflict plus 6 months (i.e., 2 March 1946) with an honorable discharge on that date with all due pay and allowances. Perhaps an argument could have been made that he would have been promoted during that time; however, to presume that he would have been promoted would have been purely speculative. It is acknowledged that to presume he would have honorably served (or lived to serve) until 2 March 1946 was also purely speculative; however, the correction as granted was based upon a reasonable presumption based on the facts of the case. 12. It is agreed that the ABCMR has the equity power to change the facts in records or create records. That equity power was already exercised in the FSM’s case. The facts were changed to show he was not convicted by court-martial, and records were created to show he continued to serve on active duty until 2 March 1946. 13. Counsel contended that additional relief under the Board’s equity power is warranted under the public perception test. His contention is that the FSM (or the applicant, as the FSM’s heir) is due monetary compensation for his unjust imprisonment and the way to receive that compensation is to show the FSM continued to serve on active duty for 10 years. It is acknowledged that the Board has the power to make the correction requested. However, it does not appear that, even under the public perception test, this would be a fair or equitable correction. 14. The original Board correction made a reasonable presumption that the FSM would have served until 2 March 1946, the same as thousands of other inductees, absent his court-martial conviction. There is no evidence to show it would be reasonable to presume that the FSM would have served for an additional 10 years. It is not credible to believe the public would believe justice would be served by showing the FSM served an additional 10 years on active duty when there is no evidence to show he ever intended to do so. 15. Counsel requested a personal appearance before the Board. There is no statutory or regulatory right to a formal hearing. The governing regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires. 16. The applicant’s case and counsel’s arguments were carefully considered by the Board. However, it was determined that sufficient evidence was present to render a decision without the need for a formal hearing. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___xx___ ____xx__ ___xx___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _________xxxxx_________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20080001415 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080001415 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1