.Judge Advocate General's Department BOARD OF REVIEW Holdings, Opinions and Reviews ,Volume L .including , CM 243977 - CM 272994 (Supplementing Volumes XXVII - XLVIII) LAW LIBRARY JUDGE AOVOCAT: f;f.NFRAL · NAVY DEPARlMEN .Office of The Judge Advocate General ,Washington: 1945 03784: ,}'/ t I •:; ::.u filJ; CONTENTS OF VOLUME L CM No. Accused Date Page 243971 Breymann 17 Dec 1943 1 244802 Van Dorn 4 Dec 1943 7 247981 Cobb 13 Jun 1944 11 248793 Beyer, Seidel, DellUUe, 25 Apr 1944 21 Schomer, Scholz 252242 Heichl 24 tay 1944 53 253195 Davidson 18 ~y 1944 67 255335 Besherse, List 'Z"/ Jun 1944 73 255335 Sheridan 27 Jun 1944 !39 ' 255394 Henry ·16 Jun 1944 97 255438 Hurse 8 Jun 1944 lCfl 257632 Greulich, Ryan, Bruckrnann 30 Sep 1944 121 257824 Cox 13 Sep 1944 179 259228 Gauss, Straub 7 Sep 1944 211 260194 Collett 2 Sep 1944 231 260781 lknschner 31 Oct 1944 237 272901 Van Leuven 25 Jan 1945 263 272994 Daniels .19 Jan 1945 267 ; .. WAR DEPART:lElIT .A:rrrry Service :r'oroes (1) In the Office of The Judge Advooate General Washington, D.C. SPJGK 243977 1 7 DEC 1943 · U li I T E D S T A T E S ) SOUTHERN CALI1"0RNIA SECTOR WESTERN DEFENSE COMMAND v. ~ ) Trial by G. C.M., convened at Second Lieutenant EDWARD F. ) Pasadena, California., 3 Uovember BREY:l.ANN (0-1797076), Corps ) 1943. Dismis~al a.nd total for­ of Military Police. ) feitures. OPINION of the BOARD OF 1Th'VI!:i1i TAPPY, HILL and ANDRE'iiS, Judge Advocates. l. The record of trial in the case of the officer named above has been examined by the Board of Review and the Boa.rd submits this, its opinion, to The Judge Advocate Ge.naral. 2. The accused we.a tried upon the following Charge and Specifications, CHARGE, Violation of the 95th Article of War. Specification la (Finding of not guilty.) Specification 2 a In that 2nd Ueut. E:ciward F. Breynwm Co. "C" 775th Military Police Batta.lion did, at Tucson Arizona, on or a.bout the 19th day of September 1943, conduct himlself in a.n indecent, lewd and obscene manner by going to a hotel room with Sgt. Fr8.Ilk J. Babcock, disrobing and while both were naked and lying on a bed did put his arms around and try to kiss the said Sgt. Fran:.c J. Babcock and did fondle his person. He pleaded not guilty to the Charge and Specifications. He was foUDd guilty of the Charge a.nd of Specification 2 and not guilty of Specification l. No evidence of previous convictions was introduced. He was sentenced to dis­ missal and forfeiture of all pay and allowances due or to beoome due. The reviewing authority approved the sentence and forwarded the reoord of trial for aotion under Artiole of War 48. 3. The evidenoe shows that at a.bout 7al5 p.m. on 19 September 1943, at the Mandalay Inn, Tuoson. Arizona, Sergeant Frank J. Be.bcock, 62nd Bomb Squadron, 39th Bomb Group, met accused, whom he had not previously known (R.16.19). Sergeant Baboock was sitting alone in a booth at the tilne. and the accused walked over and asked whether he could join Babcock, 'Who replied (2) in the a.i'finnatiTe. Thereupon accused seated himself at the booth and the two proceeded to drink and engage in conver•ation for approximately half an hour (R.16). It developed that Babcock had a room at the Arizona Hotel in Tucson. .Aoouaed had no room and a.sked Ba.boock whether he could stay in the latter'a room. Ba.boook said that he could. When they left the Iml, accused bought a pint of whiakey and they went to Ba.boock'a room in the hotel, arriTing at a.bout 8 p.m. It was wry we.rm alld eaoh took off hia shirt (R.16,17). At this time the window ~hade YU up (R.18). Accused locked the door and he and Babcock aat on the edge of the bed talking and drinking. At some stage of the prooeedinga, not entirely olear from the teatimoey of Babcock, the latter pulled down the shade. Accused suggested that when they became intoxicated they should undress, go to bed, and sleep it ott. After awhile Babcock began to feel the effects ot the liquor and apparently at this tilne accused put his arm or al'l18 around Babcock and sugge•ted_that the latter undress and go to bed. Accused undreased and again suggoated that Babcock do likewise. Babcock did so a.Di they lay together on the bed, !'acing e~oh other. They were naked. .Aoowsed put his arm and bands around Babcock am. his leg over Babcock's leg (R.11,18,19,22). Thereafter, accused kissed Ba.boook on the lips and felt hia penis. 11 11 At this time Babcock'• penis wu_ hard • A few seoo~d.a later some members of the military police, together with other persons, entered the room. Babcock testified that the a.couaed's oonte.ct with his peni• "could not have been accidenta.1 11 (R.20). ·, First Lieutenant John J. Fox., Corps of Military Police, 177th Military Police Battalion, testified that he 'DIS oalled to the Arizona lbtel on the night in question by an officer of the Tucson Polioe Department. Lieutenant Fox, together with the Tucson policeman, an enlisted man, and an official of the hotel, went to a room across a courtyard from that occupied by the aocuaed and Ba.bcook {R.26). The window of this room 118.8 not more than 12 or 13 feet a.way from Baboook's room (R.29). In the latter's room the lights were on, the window wa.a open, and the window shade we.a up. Accused a.Di Babcock were stripped to the waist a.Di were sitting on the edge of the bed, talking. From time to time aocuaed would lie baolc on the bed. Enry once in awhile he and Babcock would get up and pour & drink. While_ the accused waa lying on the bed he had his haJ:ld over Babcock's be.ck, patting him on the shoulder (R.26). Several times he pulled Ba.boook down onto the bed (R.30). After about 15 or 20 minutes the shade wu pulled down, whereupon Lieutenant Fox and the others went around to the door ot the room occupied by accused and Babcock. While they were outside the door, Lieutenant Fox heard the aocuaed say, "•You better take ot't your pants and take oft your shoes••. Babcock "acquiesced" (R.27). The hotel official opened the door w1 th a paaa ")cey (R.31) and the party entered the room (R.27). The lights were on, and acouaed and Babcock, 11 who were :naked, ._.ere juat getting oft the bed • F.a.oh he.d a "formidable - 2 ­ (3) erection• of the penia. Accused said, "•Fox, can't something be done about thia'l'"• Babcock said, "'Damn it, I should have known what he was up to when be was feeding me the liquor•" (R.27,28). On cross-examination Lieutenant Fox conceded that accused waa re­ garded as a grod off~cer (R.28). · The accused testified briefly concerning his military service and his educational background (R.40). With reference to the evening or 19 September 1943, ho &.dmitted asking Babcock for permission to sit at his booth at the lmnd&lay Inn (R.42,47,48). He corroborated Babcock's evidence concerning their conversation and drinking at that place. After Babcock mentioned that he had a hotel room, Ei.ocused said he would be willing to buy a pint of liquor if they could use the room together, to which Babcock agreed (R.42 ). Th€:y left the Inn about 7a45 p.m. (R.48 ). They bought some liquor and went to Be.boook's room in the hotel, where they ~at_ on the edge of ,the bed, stripped to the waist. Accused removed his shirt because of the heat (R.42,48). They drank and talked and the accused put his arm. around Babcock and II just let my arm on his shoulder". Accused would "lay back" and smoke his cigar and after awhile 11would come forward again and ta.ks some more of the liquor" (R.43). At length a.ccused said he was going to bed. Babcock decided to go a.lso and pu1led down the window shade, after which they undressed (R~42, 43~. At this point., while they were sitting on the bed with the lights still on, the officers oams in (R.43,49,50). After accused dressed, he said to Lieutenant Fox, "'What a.re you going to do about thist•• (R.60). At no time after accused had removed his .clothing did he "lie doq by the sergeant• (R.49 ). He did not kiss or a'ttempt to kiss Babcock (R.43,44): Ha did not touch Babcock's penis or put his hand on a.ny other part of Babcock except a.cross the back of his shoulders (R.44). Accused testified that he did not know whether either he or Babcock had an erection (R.60). Ha did not deny having one but testified merely that he wa.s not oonscious of a.ey such condition. He wa.s not drunk (R.51). For the defense, Sergeant Philip B. Salatino, Corps of .Milita.ry Police, Camp Roberts. California, testified that he had roomed with ac• cused for about six months while accused was a sergeant, and that during this period he had never seen "any unnatural reactions of a sexual nature" (R.36 ).