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Board of Review; Holdings, Opinions and Reviews, Volume 14

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Board of Review; Holdings, Opinions and Reviews, Volume 14 \~ _LG BG 3 \/ . :l._ Li,­ Judge Advocate General's De.partment BOARD OF REVIEW Holdings, Opinions and Reviews Volume XIV including CM 223489 to CM 22&>34 (1942) Office of The Judge Advocate General Washington: 1944 01955 / CONTENTS OF VOWME IIV CM No. Accused nite Page 223489 Madison l Aug 1942 l 223498 Crowley 20 Nov 1942 9 223517 Rebraca 18 Sep 1942 15 223554 Thomas 8 Aug 1942 21 223574 Rowe 13 Aug 1942 29 223648 Nugent 5 Aug 1942 39 224049 Blrnham 25 Aug 1942 45 224100 Hutchins 29 Aug 1942 51· 224109 Medlock 9 Sep 1942 69 224128 Collopy 22 Aug 1942 73 224142 Sweet 4 Sep 1942 77 224280 Garfinkle 9 Sep 1942 89 224286 Hightower 5 Sep 1942 97 22428? Naylor 24 Aug 1942 l'J7 224318 Long 29 Aug 1942 lll 224325 llichael 18 Sep 1942 117 224)(}5 Farnsworth 11 Sep 1942 121 224420 Thompson 8 Sep 1942 133 224443 Meyer 7 Sep 1942 139 224444 Wanner 18 Sep 1942 143 224465 Moore 22 Sep 1942 153 224549 Sykes 16 Sep 1942 159 224649 Woodall l2 Sep 1942 173 224730 Atkins 23 Sep 1942 175 224765 lbtler 23 Sep 1942 179 224805 Conlon 10 Oct 1942 191 224849 Isaacs, Vullen, .Reineck 19 Sep 1942 197 224894 Tulis 9 Sep 1942 203 224932 Jenkins 14 Nov 1942 2(17 224947 Lovette 17 Nov 1942 2ll 224949 Hannon ll Sep 1942 217 224951 Thompson 2 Oct 1942 219 225128 Southam 14 Nov 1942 229 225249 Hamby 24 Sep 1942 , 233 CM No. Accused Date Page 225256 Lath.am 26 Sep 1942 239 225292 Meinders 16 Sep 1942 247 225356 Herndon 22 Dec 1942 249 225405 Lineberger 26 Oct 1942 255 225407 Derrick 26 Oct 1942 259 225409 Long 26 Oct 1942 263 225422 Blrrett 17 Oct 1942 267 225490 Van Huss 29 Sep 1942 271 225505 Townsend 26 Oct 1942 277 225512 Henning 14 Nov 1942 281· 225525 Reeves 3 Oct 1942 285 225533 Kauffman 21 Oct 1942 291 225598 ~vis 19 Oct 1942 297 225638 Loss 2J Nov 1942 307 225639 Raymond 15 Oct 1942 JU 225671 Lee 17 Oct 1942 317 225746 Hewlett 13 Oct 1942 325 225754 Wykof! 6 Oct 1942 333 225837 Gray 4 ~c 1942 JJ9 225856 Hathawa;y 18 Mar 194~ 349 225871 Anglin 12 Oct 1942 367 225896 &eyth 5 Nov 1942 371 225909 Veil 22 Oct 1942 381 226034 Brown 9 Oct 1942 393 fl.AR DEPARTMENT Services of SUpply In the Office of The Judge Advooate General. Washington., D.C. SPJGH Cll 22.5489 AUG 1 1942 'UNITED STATES ) SEVENTH CORPS AREA ) Te ) Trial by G.c.M., convened at ) Fort Francis E. Jfarren, Private LEROY MADISON ) Wyoming, June 21, 1942. Dis• (20502536)., Company E., ) honor&ble discharge (suspended) 128th Infantry. ) and confinement for one and one­ halt (lf) years. Disciplinary Barracks. OPINION of the BO.ARD OF REVIEl1 HILL, CRESSON a.nd LIPSCOJ.IB, Judge Advocates. 1. The record of trial in the oaae of the soldier named above having been examined in the Office of The Judge Advocate General and there found legally inaut!'icient to support the 1'11'.ldinga a.nd sentence in part, has been e.xe.mined by the Board of Review., and the Boa.rd 1ub­ mita this., its opinion., to The Judge Advocate General. 2. The &ocuaed waa tried on the following Charge and Specifications CHARGEs Violation of the 68th Article of War. Specifications In that Private Leroy Madison., Co. E., 128th Infantry., did., at Fort Ord., California., on ar &bout April 21, 1942, desert the service of the United States and did remain absent in desertion until he was a.ppi;ehended at Cheyenne., ffyomiJJg., on or about .April 22., 1942. r.he &ccuaed ple&ded not guilty to the Specification and Charge., but guilty to absence wi:thout leave in Tiolation of .Article of War 61. He was found guilty as charged, sentenced to be dishonorably discharged the service., tor orfeit &ll pay and allowances now due or to beoome due., and to be confined at hard labor tor i'ive years. The reviewing authority' approved the- findi?lgs and 1entence., but reduced the confillfml8nt adjudged to one and o.ne•hali' years., ordered the execution of the sentence as modi• (2} tied, but suspended the dishonorable di1charge, and designated the United Sta.tes Disciplinary Barracks, Fort Lee.vemrorth, Kenus, as the place ot confinement. The result or the trial wa.s published in General court-llartia.l Order, Ho. 239, Bse.dquarters Seventh Corps .Area., J\lly 14, 1942. 3. It wu atipula.ted that if an extra.ct oopy of the morning repart ot Campany E, 128th Infantry, o£ ~e morning of April 21, 194:2, were introduced in evidence it would 1hc,,r an entry "Private :Madison, duty to .1..w.o.L, April 21, 1942" (R. 5). ~• only witness introduced by- the prosecution was Sergeant Ra.ym.ond F. Sullivan, Military Police Detachment, Fort Francia E. \11.rren, who testified that he aa.w a.ocuaed a.t 7 p.m., .April 22, 1942, standing on a. corner in Cheyenne, Wyoming, and noticed a. blue bra.id on his ca.p. llhen be round that a.coused had no writte:o. authority tor being a.bsent trom his organi1a.tion, he turned h1a over to the gua.rd at Fort Franch E. Warren, ll(oming (R. 6-6). 4. J,.oouaed teatitied that ha entered the aervioe on Februe.ry 19, 1940, a.nd wa.1 a. mam.ber of Campany E, 128th Inf'antry, 32nd Division, Fort Ord, Ca.litornia.. Ch April 21, 1942, he secured a pass at 7 a.m., which was good until 12,45 a.m. tha.t night. He was going to his home in Gira.rd, Ohio, to get married. He lett his orga.nile.tion a.t 8 a..m., lett Monterey at a.bout 9 a.m., and hitch-hiked to Cheyenne, where he was picked up by the military police on the evening of April 22, 1942, with another soldier who liTed in his ho:me town. He knew or no expected movelMllt ot his organisation, a.nd would not have been given a pass it a move were contemplated. Re knew it wa.s a.gs.inst J.rmy regulations to talc• ott without perm.inion and alao knew that he did not have the con• sent of his oom.pe.ey oOlmllallder to get married. At no time during his absence did he intend to desert the service ot the Ul1ited States (R. 7-12). 5. !he evidenoe thua shows that accused absented himaelt without leave tor oDe de.y. terminated by apprehension in Cheyenne, 'ltyo:ming. He wa.a travelillg, in unitorm, by hitch-hiking on a direct route to his home in Girard, Ohio; tor the purpose ot getting married. ~e record tails to 1hc,,r tile.t th• accused waa diaaatiatied w.1.th his station, organization, or with the ael'Tice generally. Hia sta.tem«o.t or his destination and expla.na.tion ot hit purpose negative an intent; not to return. The Board of Review find• notb.il:lg in the &bsence or attendant circumstances to justify a reasona.ble int'erenoe that accused intended to desert, i.e., intended to quit the 1ervioe of the United States. - 2 ­ (J) In CM 213817, Fairchild, where accused 198.S apprehended after an absence without leave of 22 days, during which he lived openly near his post, the Board of .Kdview stated, "* * * The Manual for Courts-Martial states that ­ "' If the condition or a.bsenoe w1 thout leave is much prolcilled, e.nd there is no satisfactory explanation of it, the court will be justified in inf'errine; from that alone an intent to remain permanently ab• sent • * *•' Determination of the question as to whether absence is '~uch prolonged' or satisfactorily explained, within the meaning of the quoted clause, must depend upon the circumstances of the absence. An arbitrary yardstick of time may not be applied. The absence must be so prolonged that, ~onsidered in the light or proved causes a.nd motiv~s or in the light of a lack of ration­ al explanation, it leads in-sound reason to a conclu­ sion that the soldier did not intend to return. The absence in the instant case, so considered, is not ot such duration as to justify an inference of intent not to return." 6. For the reasons stated, the Boa.rd or Review is of the opinion that the record of trial is legally sufficient to support only so much of the findings of guilty of the Charge and its Specification as involve findings that accused, at the place alleged, absented himself without leave from his organization from April 21, 1942, to .April 22, 1942, in Violation of Article of War 61, and legally sufficient to support only so much of the sentence as involves co.ni'inement at hard labor for three days end .t'orfei ture of two days I pay. __) ,·--· -- .. ~F/~ Judge Advocate. ~~J!o~..,., Judge Advocate • ~~---<-D_i_s_s_e_n_t.~~----~--, Judge Advocate. - 3 ­ WAR DEPARTMENT Services of Supply (4) In the Office o£ The Judge Advocate General Washington, D.C. SPJGH cu 223489 ~p· AUG 3 1942 UNITED ST.A.TES ) SEVENTH CORPS .A.REA ) To ) Trial by G.c.u., convened a.t ) Fort Francis E. Warren, Private IEROY MADISON ) Wyoming, June 23, 1942. Dis­ ( 20602636), Company E, ) ' honorable discharge (suspended) 128th Inf'antry. ) and confinement tor one and one­ ) halt (l}) yea.rs.
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