European Theater Operations Board of Review Opinions, Volume 14uum11~/11ii11~r~ 024068
RE OED .. )r~LC:.:.fL'?:::.'u~.J.fi·j / ......... ­ BY UlllO~ilY n 'T'J ft G
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VOLUME 14 B.R. ( ETO > CM ETO 4967- CM ETO 5414
OFFICE OF THE
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(;/;Gs tXE"C.~ GN~ r~B Sz_ JUDSE ADVOCATE GENERAL ·····-·· -··· ......_
D. C.
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Tt.-\ ftG,,BY AUlHOR!JY C
BY ~~~!.~~_t.-P C. M1i{....ct..::J ~.(:>i;-, v-A-Gc.) l?xt:c, 1 2 L Fe-A 5 2. .Judg&A-0.vocat"Et ~nt.lts Department.. .
Holdings and Opinions
BOARD OF REVIEW
EUROPEAN THEATER OF OPERATIONS
Volume 14 B.R. (ETO)
(1944-1945)
EG ~ ~o t lrvct-A ss ~ F 1€0.- ...........,
BY AUl ,O"·T'1' CF T,_ A(;. _ BY-- - E<:::, ( NALV c.. l>'J.1i.1.tf( J .w , '~b( /;-;.Ee_. 0I Q.,6. Fc;,13, s <
Office of The Judge ldvocate General
ETO No. CM No.
496? 280852 49?9 294581 4986 291000 49fn 280851 4988 287513 4993 284789 4995 298190 5004 289472 5009 283?82 5010 306973 5012 Jcm52 5017 284330 5026 m2Z7
502? 2992?4 5032 299452 5051 291982 5052 2?4520 5053 5068 284438 5079 2844?0 5080 289796 51CT! 289642 5114 284783 5ll? 285645 5137 28741.3 5155 283781 5156 286482 5157 286911 516? 278030 51?0 283424 51'79 283361 5196 292988 5234 302139 5255 284232
Accueed
Jones Ashley, Buchberger Rubino Brucker Fulton Key Vinson Scheck Sledge, Sander a Glover Porter, Daniela Lewis Kirchner, Preble, Roose Newcombe Brown, Finnie Williams Yalle;r Campbell Rape, Holthus Bowers Pugliano Nelson Acers DeFrank EBldwin Carroll, D'Elia Clarie Guerra caparatta Rudesal, Biles Hamlin Ford Stubinski Duncan
rate ~
9 Dec 1944 1 3 Jul 1945 ?
12 Dec 1944 15 17 Jan 1945 21 16 Jan 1945 2? 15 Dec 1944 33 14 Mar 1945 39 15 Dec 1944 4? 30 Jan 1945 53 12 Dec 1944 67 l? Jan 1945 ?5 6 Jan 1945 81 8 Dec 1944 fn
7 Dec 1944 93 24 Mar 1945 97 9 Dec 1944 105
21 Dec 1944 lll 8 Dec 1944 12? 9 liar 1945 JJl
31 Jan 1945 141 27 Jan 1945 145 13 Jan 1945 151 16 Dee 1944 157 15 Dec 1944 163 2? Dec 1944 16? 17 Feb 1945 185 14 Dec 1944 199 23 Dec 1944 209 6 Jan 1945 221 5 Jan 1945 227
12 Dec 1944 241 16 Feb 1945 249 16 Feb 1945 257 27 Dec 1944 273
ETO No. CY: No.
5261 288110 5287 284090 5291 284089 5292 280384 5293 284915 5304 287586 5Jl8 284001 5341 288108 5.346 288166 5.347 .300105 535.3 299876 5.359 284914 5.362 287o64 5.363 289454 5.389 299828 5.39.3 289181 5394 289941 5.396 2896.35 54o6 295495 5414 299357
Accused
Thornton Pemberton Piantedosi Wood Killen Iawson, Weitkamp Bender Hicks Hannigan Clay Chaplinski Young Cooper, Wilson Skinner Pomerantz Leach Quinn Nursement .lldinger White
Date Page
6 Jan 1945 281 6 Jan 1945 283 6 Jan 1945 287
17 Feb 1945 293 20 Dec 1944 297 21 Feb 1945 303 17 Feb 1945 309 16 Feb 1945 315 6 Jan 1945 .319
20 Dec 1944 325 28 Dec 1944 .327 .30 Dec 1944 .333 28 Dec 1944 3.39 29 Dec 1944 357 4 Jan 1945 .367
18 Jan 1945 379 17 Feb 1945 .385 16 Feb 1945 391 17 Feb 1945 395 17 Feb 1945 399
C"1.f,,J.J,,:J;J
CM ETO 4967
UNITED S 1' .1 T E S ) 8:1) DFABM DIVISION
l )
Te ) Trial by GCM, convened at Audtm le Roman, France, 8 October 1944.
Private First Class Sentences Dishonorable discharge, JUNIOR G. JONES (.38474779) • total forfeitures and confinement Co~ I, 33lst Int"antry at ha.rd labor tor lite. Eastern
) Branch, United States Disciplinary ) Barracks, Gr"nhann, New York.
cJucL IJ 5:=;1r=-1£p..........,...__. uomma by BOARD or REVmr No. 1 BY AuzHomrv or Tuf)G
lUI'ER, SARGENT and STEVENS, Judge J.d'9'0Catea f) ,
BY.Ji_f G,-!NftL;J> c M1l_ L ~ r.:-. ~ - -- "~ (,
1. Th• record of trial in the case of the soldier~u{ed a )( ,-- ON ;J.6 Ft:J3S} has bHn examined by th9 Board of Rmn. ·····
2.. Accused was tried upon th• f'ollowing Charge and Speci.fica­ tion:
CHARGE: Viola.tion of the 75th Article of War. Specirication: In that Prin.te First Class Junior
G. Jones, CC>lllp&ey' I, 3.31st Intmtry, did, at or near La Sftll.llarie, France, on or •bout 10 J~ 1944, while before the ene111.1, shame­ ~ :nm &ft1 from his c~, and did not return until apprehended by the llil.1ta.ry" police..
He pleaded not guilty and, all of the Jll8Jllbers of the court present at the time the vote was taken concurrillg, was found guilty of the Charge alld Specification. Evidence was introduced ot one previous conviction by special court-~tial tor absence without leaw tor 21 days in Tiolation of Article ot l'ar 61. ill members of the court present at the time the vote was t.ken concurring, he was eentenced to be shot to death with llWlketry. The reviewing authorit7, the Comnand1ng General, 83d Intentr,y Division, approved the sentence
4967 l ­
but recoJ1111Snded that it be commuted to llie imprisonment and torwarcfad the record ct trial tor action Wlder Articles otWar 48 and 50. The eontind.ng authority, the Commanding General, European Theater of' Operations, confirmed the sentence, btlt due to unUBual circumstances in the case and the recommendation of the appointing authority, commuted it to dishonorable discharge trom the service, torteiture of' all J>8.1' and allowances due or to become due, aDd oontinement at hard labor tor the term ct accuaed•a :natural lite, deaignated the Eastern Branch, United. States Dieci• pHnary Berracka, Greenhaven, New York, as the place of continement, and withheld the order directing execution ct the sentence parswmt to Article of War 50!. The action of' the confirming authorit,' in comuting the sentence was taken under the provisions of Article ct War 50.
3. Undisputed nidence tor the prosecution established the f'ollowing:
On· 9 Ju17 1944 C~ I, .331.st Infantry, led an attack .. against the enem;y up to a crossroads near Sailltecy and La Semallarie, France·, which objeotive the co~ held under enemy tire on 10 Jul7. During the night ot 10-ll JW.,-, the enemy- counter-attacked with tanks and drove the col!lp8.ey' back. Several attacke tailed. bit tinall.7 the company succeeded in a f'lank1ng attack which "cleaned out the position• (R?-S,12,19). Accused wur a r1f'l.eman in Compaey I and as such his proper position was in the front lines on and af'ter 10 J~. He was assigned no duty' which would require his presence elsewhere (R6-7,S). A check ot Compacy I by' the compe.ny- commander on 14 and 15 Jul,- showed that accused was absent, nor was he present on 20 ~. The COl!lJ>8ll7
was under enem.r tird throughout the period 9•20 Ju'.cy' (R20). ..
On 20 Jul.7 the communications sergeant ot Co!!!p&.ey I saw accused with another soldier on a road near the position ct the )24th Field Artillery. Accused was headed toward the kitchen, was dressed in clean olive drabs and wu cleanq shaven, in contrast to the mudcJ7, unshann appearance ot soldiers on the front lines. He stated in repq to the sergeant•• inquirJ', however, th&t be had. been up on the front line fighting. The sergeant directed him to take steps to return to the com~ •bec•nse we needed him•, ba.t although accused eaid that he would do so, he tailed to return to the COlllpaey' that dq (R9). He waa not present with the co~ between 20 and 26 Jul,- (R9,12).
On 25 Jul,- a military policeman on straggle patrol aet ac­ cused on the str~r line (Rl.3) some distance behind the front lines. He was emerging from a narrow strip ot woods with two other soldiers. One ot the three volunteered the statement that •tbe7 were turning themselns in•. There were three other soldiers about 30 ,.ards behind them. The 11en, who were d1rt7 in appearance, were taken into cuatod,­ (Rl.4-15). Accused was returned to his organization 25 or 26 Jul,- (R9).
On 29 Jul.7 1944, after the otticial investigating officer warned hiJa oZ his rights, accused voltmtaril,- executed the following statement, admitted in evidence as Prosecution Exhibit 1, without
(3) objection b;r the detense (Rl6-17)a
•I am a member ot C~ 'I', .33lat In­ tantey' and on or ab:Jut 10 July' 19.44, n were engaged 1n a tire tight with the enem;r. That night the eneJey" countet"•attaoked with tanks aIJd as 1fl1 heart bad been lmrtillg, I went to the rear where I attached JliY88lt to a mortar squad ot c~ •x•. PriTate Sumner waa with me. The next morning we went to the rear and stopped a.t the motor pool where we asta;red tor f'our or tive d&:'ll• We astarted ba.ck tor the front but I couldn't force rq­ selt to go so I stopped at a t1r1ng position or the 324.th Field Artille17, where I stqed tor sevval dqs. I bad started forward and had .stopped tor chow when picked,up b;y the Milit&17 Police•.
I
The din11ion neuropqchiatrist 1n his testim0D.7 identi• tied an o.tticial report ot f:fnd:fngs with respect to accused, of a sanit7 board, ot which witness na president, appointed b;r the dirl· sion commarider and dated S August 19.44. The portion or the report containing the conclusions ot the beard was admitted in ni.dence, the defense eta.ting it had no objection, aa Prosecution Exhibit 2 (Rl8), and reads as tollowss
•It is th18 beard's opinion thats a.. This soldier understood. right from wrong,
and with regard to the or.tense charged, he could ad• here to the right; turthermore, he wu at the time so .tar .tree from mental de!'ect, disease or derange• ment as to be a.bl.e, concerning the particular act charged, betJl to distinguish right !rem wrong and to adhere to the right.
b. He is sane and mentall7 reBpODBible tor the ottemse com!d.tted.
c. The accused is sutt1c1entl7 sane to intelll ­ ~ntl;r conduet or cooperate 1n his defense•.
Upon cross-examination the 1t'itness complied with the request ot the detense com:isel to read to the court a tarther portion ot the :mentioned report, consisting or .tacts brought out from accused by' questions ot the board upon which th.El)" based their conclusion as to his sanit7. The trial judge advocate pointed out that such portion n.s not ottered in evidence tor the prosecution (RlS) • The portion reads in pertinent part as tollows:
•mITARY HISTORY
Aecordil:lg to the soldier, he n.s trained as an anti-tank gunner a:cd driver; his infantr;r train­ ing was onl7 while with this D~nl!lion; tormerl7 was 4967
(4)
a member or tho 7Sth Division. He lett bis organization on about 10 July' 1944, and be!ore being returned b;r the Militaey Police on 25 July' 1944, had been ordered b,r a noncommissioned otticer to return to bis organization - this he tailed to do. He gave, as bis reason tor leaviDg, the tact that be had a heart ache; this is a coirplaint ot more than one years duration; examination at the time of interview re­ naled no cardiac abnormality, with a blood pressure within normal limits. Also was quite nervous, but this subsided within a te11 days. He knew that learlng his organi• zation, especial.lJr when they were in the line, was against military rules; his act was not premedJated. He could not make up bis mind about the prospect ot return to duty, even it the opportunity were given to him; no reasons were given for this ind.ecieion•.
4. (a) For the defense, the division }>S1'Chiatrist n.s re­ called and testified in substance that before questioning a man the sanity board warned him ot his rights under Article or War 24 and told him that s:tlY' testiJLOIIY he gan them was JUE1rel7 hearsq. Thq positi'ftl)" gave the men to imderstand that whatever th97 told the board might not be usechga1net thea (R.22).
(b) After his rl.gh"&s were explailled to hill, accused elected to remain silent (R23).
5. The record ia clear that while betore the ene1117, at the time and place alleged, accused ran awq from his compaz::17. Both elements of the ottense in violation ot Article ot War 75- were f'all.7 established (CM Ere> 4005, 5umner, and authorities therein cited). The exact manner of the termination of accused• a unauthorized ab­ sence, tollowing his running a."0:3', does not clearly' appear, nor ia it material to his guilt (Ct: CM ETO 4820, Skovsn, and authorities therein cited).
o.. Major Norman P. Cowden, Assistant Adjutant General ot the S3rd Inrantr;r Division, who by command ot the diviflion commander referred the case tor trial, was appointed &r..d sat aa a member ot th'9 court (B2). His act was pcrel.y' administra.tiTe and in the absenw ot ch•JJ enge (R3) and or indication or inj'L'\17 to aZJ:1' ot accuaed•a substantial rightsl the irMgularity 1JJB:f be regarded as harmless (CU E?O 4004, ~J.
7. A:Iq' error 1n recebing in evidence that portion or the report ot tindings ot the B8Jlit7 board conaisting ot accused'• state­ ;aents concerning the alleged otf'enise, was selt-invited by' the det•DH.
•'..l'r:·_• 4967 -4­
(5) In Tie• or the tact that accused• a TOluntary st&tement, ms.de upon the official investigati0111 admitted certain elements ot the ottenae, 81lCh selt•invited error may not be deemed to have injuriousq attected arr,- ot ac0t1Bed'• aubetantia1 rights. Thie ii true even though the conteasion was 1Dduced by hope ot benefit instilled b.T the president's statement that it was bearsq aDd. might not be used against hill (CM E'l'O 422, GreenJ CM El'O 438, H, A, §mith; CM ETO 1693, ~J CM l!'!OO 31'17, Colson and Brown)•
8. The charge sheet shows that accused is 20 years tive months of age and was inducted 25 Fe~ 1943 at T,-ler, Tex.u. No prior service is ahown.
9. The court was legall.Jr constituted and had jurisdiction ot the person and of.tense. No errors injuriously' attectin.g the substantial rights ot accused were committed during the trial. The Board ot Renew is ot the opinion that the record or trial is le~ sutticient to support the tindings ot guilt7 and the sentence as cOJmnU.ted.
10. The penalty tor misbebaTior betore the ene117 is death or 81lCh other punisbmen1i as the court-martial JDB:3' direct (AW 75). The designation ot the Eastern Branch, United States Disciplin&.17 Barracks, Greetlhaven, New York, as the place or confinement is proper (AW J.2; Cir,210, WD, l4 Sep 194.3, sec, VI, as amended).
/'/ f, . .· / ·.. '' /.' /_..._--"--·-'..-..'_________Judge Advocate
7 J Judge Advocate
(6) 1st Ind.
war Department, Branch Ottice ot The Judge .AdTOCate General with the l!nropean Theater ot Operat1oll8. 9 nE G 19'14 TOs Com­ :manding General, Eurcpean Theater ot Operatfons, APO 887, u. s. ~.
1. In the case o:f' Private First Class JUNIOR G. JONES ('38474r.9), Company I, .3.3lst Intantry, attention is invited to the foregoing holding by the Board of Review that the record ot trial is legall.y sufficient to support the findings or guilty mi the sentence, as commuted, which holding is hereby approved. Under the provisions of Article ot War 5ot, you now have author1ty' to order execution of such sentence.
2. When copies ot the published order are forwarded to this o:f'tice, they- should be accompanied by the foregoing holding and thi8 indorsement. The tile number ot the record in this office is CM ETO 4967. For convenience of reference please place that number in brackets at the end of the order: (CK ETO 4967).
/ /flt-1t!JC?t-j E. C. McNEIL,
Brigadier General, United States J.:rrrir, ~sistant Judge Advocate General.
(Sentence as coJ11D.uted ordered executed. GCID 145, ETO, 21 Dec 1944)
(7)
European Theater of Operations APO 887
BOCi.RD OF REVIEW NO. 2 3 JUL 1945
CM ETO 4979
U N I T E D S T A T E S ) BRITTAlff BASE SBCTION, COIU1IUNI­ ) C.A.TIONS ZOim, EUROPE.Al'~ THEATER
v. ) OF OPER~:..TIONS )
Privates LEONhHD J. ASHLEY) Trial by GCivI, convened at Renne s, (36836500), and l~Ni'<ETB D. ) Brittany, France, 9 November BUC~IBZ.'"tGBH (36271317), both) 1944. Sentence as to each of 666th Medical Clearing ) accused: Dishonorable discharge, Company ) total forfeitures and confinement
) at hard labor for 15 years. ) United States Penitentiar~r, ) Lewisburg, Pennsylvania.
HOLDING by BOARD CF HEVIE'N NO. 2 Vt..N BENSCHOT::!:N', HILL and .nJLI.A.N, Judge Advocates
1. The record of trial in the case of the soldiers named above has been examined by the Board of Review.
2. Accused, with their consent, were tried together upon the following charges and specifications:
ASHLEY
CHA.RGE: Violation of the 93rd Article of Viar.
Specification· 1: In that Private Leonard J. Ashley, 666th Medical Clearing Company .APO 339, United States Army, did at Vezin, Ille et Vilaine, France, on or about 7th October 1944, unlawfully enter the dwelling of konsieur Gilles Anger, with intent to commit a criminal offense, to wit, Larceny therein.
CC':::~E.NT~AL - 1 ­ 4979
OONF!~~NTlAL (8}
Specification 2: In thst * * * did at Vezin, Ille et Vilaine, France, on or about 8th October 1944, unlawfully enter the dwelling and cafe of l~onsieur Jean Touffet with intent to commit a crj_minal offense, to wit, larceny therein.
Specification 3: In that * * * did, at or near Vezin, Ille et Vilaine, France, on or about 7 October 1944, feloniously take, steal, and carry away about 15,000 francs, lawful ~oney of France, value about ~300.00, the property of Gilles .anger.
Specification 4: In that * * * did, at or near Vezin, Ille et Vilaine, France, on or about 8 October 1944, feloniously­ take, steal, and carry away two bottles of rum, and two bottles of wine, total value about ~4.00, the property of Jean Touffet.
BUCHBE:8GER
Same Charge and specifications as above set forth except for appropriate transportation of the names of accused.
Each accused pleaded not guilty and each was found guilty of the Charge and specifications preferred against him. No evidence of previous convictions was introduced. Each accused was sentenced to be dishonorably discharged the service, to forfeit all pay and allowances due or to become due and to be confined at hard labor at such place as the reviewing authority may direct, for 15 years. The reviewing authority approved the sentences, desig­ ~ated the United States Penitentiary, Lewisburg, Penn­ sylvania, as the place of confinement, and forwarded the record of trial for action pursuant to Article )f War 50~-.
3. The evidence introduced by the prosecution was substantia.lly as follows:
Witt 1..n:HTtAL
- 2 - 4979
cmmDENTIAL
(9)
Gilles Anger and his daughter Germaine resided at Vezin, a village in the vicinity of Rennes, France (R9, 11, 20). .A.t about midnight, 7 October 1944, a United States Army captain and the two accused, all three total strange·rs to the .Angers, knocked loudly on the latter's door, at the same time calling out, "here mademoiselle, here mademoiselle". After waiting a few minutes, they forced the door open, entered the house and lighted the lamp (Rlo,11,15-17,20,21). The captain called accused Ashley and together they proceeded to search the room, opening cupboards a,nd drawei·s. While doing this, the captain kept saying "Boche Boche" (Rl2). When they came to Anger's personal cupboard it was found locked and .Ashley opened it with a false key which he took out of his own pocket (Rll,12,21). Either the officer or Ashley opened the drawer which contained from 15,000 to 20,000 francs belonging to Gilles Anger. Ashley took some bank­ notes out of the drawer and put them in his pocket. Anger immediately recovered them from Ashley's pocket and replaced them in the drawer (Rl2).…