JAGY CM 259318 23 June 1950 MEMORANDUM OPINION SUBJECT: Application for Relief under Article of War 53 in the Case of Private Edward R. Ladyka, 33057401 (CM 259318) Applicant was tried by general court-martial at Headquarters, Fifth Army, APO 464, on January 18, 1944 and found guilty of assaulting a superior officer, in violation of Article of War 64, and using threatening and insulting language toward a non-commissioned officer, in violation of Article of War 65. He was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for ten years. The reviewing authority approved the sentence but reduced the period of confinement to five years and suspended execution of that portion thereof adjudging dishonorable discharge until accused's release from confinement. The record of trial was examined, pursuant to Article of War 502, and found legally sufficient to support the sentence. On February 8, 1945 the unexecuted portion of accused's sentence was suspended and he was restored to duty. On May 30, 1945 the suspension of the unexecuted portion of the sentence was vacated because of accused's neglect while on guard duty. On December 6, 1945 his dishonorable discharge was ordered executed. His sentence to confinement subsequently was reduced by clemency action to three years. He was released from confinement on July 9, 1946. Petitioner, through his present counsel, Bernard G. Savage, Esquire, of Staten Island, New York, now presents an application under Article of War 53, specifically requesting vacation of the sentence and substitution for the dishonorable discharge previously executed of one under honorable conditions. It is alleged that he was erroneously inducted into the Army because of his failure to meet the intelligence requirements of the induction board, that his mental background was not brought to the attention of the court, that defense counsel was not competent and did not prepare the case, that all available witnesses were not called to testify, that he was intoxicated at the time of the offense, that the fact he had no past Army record was not brought out at the trial, that the evidence was insufficient to support the findings, and that the sentence was unjust. Submitted in support of the petition are: (1) Report dated February 28, 1950 by a psychologist of the Child Study Department, Scranton, Pennsylvania Public Schools; (2) Affidavit dated February 1950 by a teacher of a Special Class for Mentally Re tarded; (3) Affidavit dated March 13, 1950 from applicant's present counsel; (4) Excerpt from "The Measurement of Adult Intelligence", by David Wechsler; (5) Report dated January 26, 1950 signed by Robert C. Thomas, Psychometrist. These documents are to the effect that applicant went only through the second grade, then was placed in a class for retarded pupils, leaving school at age 16, that tests showed he was a mental borderline deficient case with very limited ability to read, write, concentrate, or remember, but that progress was made in arithmetic, that a neuropsychiatric test was contemplated but not undertaken by reason of lack of facilities. He was described as crafty, eccentric, self-confident, deceitful, bossy, and untrustworthy. As time went on, his abilities improved. There was evidence of an early head injury. An intelligence quotient of 65 and below is stated as indicating a mental defective, and 66-79 as borderline, 80-90 as dull normal. The report of the psychometrist dated January 26, 1950 gives the following results obtained by accused on the Wechsler-Bellevue Scale: ........ Verbal Scale Full Scale.. 71 87 77 This was given the following interpretation by the psychometrist: "Client possesses a mental I. Q. which by standards presently in use is rated as Borderline. Client's efforts on the Verbal Scale were probably limited to some extent by his lack of formal education. There is a possibility that the early childhood injury has had an effect on his mental development." The affidavit of Mr. Savage states in brief that for three or four years prior to accused's induction into the Army he attempted to teach Ladyka, his half-brother, to read and write but "without very much success because of some mental difficulty" and that at the termination of this instruction accused was able to read and write only monosyllabic words. On June 16, 1950 oral argument by Mr. Savage was presented. In argument he emphasized the allegations contained in the petition and presented a detailed summary of Ladyka's mental and physical background. He urged that had this matter been known at the time of trial applicant would have obtained an administrative discharge from the Army or at least received a lesser sentence. He later supplied the information informally that petitioner has been recently employed as a coal miner in the Scranton, Pennsylvania region. The record of trial reveals that on December 16, 1943, applicant, a member of an Ordnance Company, was escorted to the orderly tent in his company area at Arpaia, Italy. There, Sergeant Dick was instructed by First Sergeant Gansler to take accused to the latter's tent, where Sergeant Dick directed Ladyka to remain until the commanding officer returned. It was additionally testified that the First Sergeant followed the two others to the tent, and when accused objected to entering, ordered him to do so and to be quiet. The evidence further is that accused replied to Gansler, "You're not man enough to make me go in the tent; I am not going", adding an insubordinate vulgarity. The order for silence was repeated and when it was ignored, the First Sergeant sent for the Sergeant of the Guard and instructed him to put accused in the guard tent. It also appears in the record that the latter would not go either into his tent or into the guard tent so Gansler sent for the commanding officer. The supply officer, First Lieutenant Hansen, responded and when he arrived accused is quoted as saying, "Hello Hansen". The lieutenant directed him to obey the orders of the First Sergeant to which witnesses assert that the accused replied, "I will go in, but I'll be goddamn if I'll stay there." The lieutenant told petitioner he would have to stay, and taking accused by the upper part of the left arm he started walking with him toward the tent. It is in evidence that accused broke away, turned facing the officer, and squared off as though to strike the lieutenant, with his right hand "cocked" back and his left hand in front. Two guards immediately "jumped" petitioner before he had an opportunity to "swing". Accused then stated that he was not afraid of the lieutenant. Ladyka is asserted to have been drinking but not under the influence of alcohol. Applicant testified that he could not remember what he had said to the First Sergeant but that he doubted that he used all the words quoted by the sergeant, that he did say "Sergeant Gansler, if you are big enough to put me in the tent, go ahead", that he did not attempt to strike Lieutenant Hansen, but that the lieutenant pushed him and he thought the officer was going to strike him, and therefore raised his hands to defend himself, and that he had two drinks of wine about 11⁄2 hours before these occurrences but that he felt no effect from this wine. Records of the Department of the Army pertaining to applicant disclose that he was given the required pre-induction examination, found acceptable to the Army' and inducted therein. Once inducted as a member of the Army he became subject to military law and to penalties for offenses committed thereunder (having failed promptly to test his status by court action).3 1 50 U. S. C. App. 303a. 2 Article of War 2, 10 U S. C. 1473. 3 U. S. ex rel Seldner v. Mellis, 59 F. Supp. 682, 683, 684, hn 2, 3, 6 (D.C. M.D. N.C., 1945); Ex parte Kerkekes, 274, F. 870, 872, hn 1 (D.C. E.D. Mich. S. D., 1921). The Surgeon General, by letter to the Office of The Judge Advocate General dated May 17, 1950, advised that persons with Ladyka's intelligence quotient are considered mentally responsible for their behavior. It was the opinion of his office, after a review of all pertinent material including that submitted by accused in his petition in the matter sub judice: "a. That Ladyka was so far free from mental defect, disease, or derangement, as to be able, concerning the particular act charged, to distinguish right from wrong and adhere to the right. "b. That Ladyka possessed at the time of his trial sufficient mental capacity to cooperate intelligently in his defense." For the purposes of conviction there is no twilight zone between abnormality and insanity. An offender is wholly sane or wholly insane.' In applicant's service record and similar documents it appears that he held positions in civil life as a cook, tailor, laborer, etc. He served approximately a year and a half in the Army and his efficiency has been rated as satisfactory; before trial, he had been authorized to wear the combat infantryman's badge, and had participated in three campaigns. This history is not consonant with the present claim of no responsibility for the consequences of his misdeeds. Examination of his testimony in court lends no support to the present claim for there he showed considerable mental agility and acumen in his own defense and in answering the questions propounded by the prosecution on cross-examination." It is observed from study of the record of trial that at the outset of the trial applicant stated that he desired to be defended by the regularly appointed defense counsel and assistant defense counsel. Records of the Department of the Army indicate that the regularly appointed defense counsel was a graduate of Gonzaga University Law School, was a member of the Washington State Bar, and was in civil life a practicing attorney. The official record of trial further indicates that defense counsel performed their duties loyally, intelligently, diligently and competently, and with professional skill.® The documents accompanying the record of trial disclose that sworn pre-trial statements were obtained from Staff Sergeant Dick, Technician Third Grade Croswhite, Private Waitz, and Chief 4 Holloway v. United States, 148 F. 2d 665, 666, 667, hn 4, 5 (C.A. D.C., 1945) cert. den. 334 U. S. 852. 5cf. United States v. Ridgeway, 31 F. 144, 148, hn 5 (C.C. S.D. Ga. W. D. 1887). • See United States v. Ragan, 176 F. 2d 579, 586, hn 18 (C. A. 7th, 1949); Diggs v. Welch, 148 F. 2d 667, 670, hn 6 (App. D. C. 1945) cert. den. 325 U. S. 889. Warrant Officer Chipman, in addition to statements from those who testified at the trial. In Dick's statement he swears: "Pvt. Ladyka was causing disturbance so I took him to the 1st Sgt. who told me to put him in his tent. Pvt. Ladyka refused to go in the tent. 1st Sgt. called the Sgt. of the Guard. Pvt. Ladyka said 'I have a gun too', and went in his tent and came out with the gun. I took the gun from him and unloaded it." The statement of Croswhite relates in pertinent part: I saw Sgt. Dick take a rifle away from Ladyka and unload it. The 1st Sergeant told Ladyka to go into the tent whereupon Ladyka used abusive language toward him and refused to go in the tent. * Waitz' statement contains the following, inter alia: 66* * * Lt. Hansen tried to lead Ladyka toward the tent, whereupon Ladyka tried to strike him. Damback and I grabbed Ladyka and prevented him from striking the officer." The statement of Mr. Chipman corroborates those of the others. It does not appear that any witness was prevented from testifying. In any event, the additional testimony would have been merely cumulative on points which were in substance fully presented at the trial, which were harmful, not beneficial to applicant, and which would not have justified or mitigated his offenses." A supplemental report of the officer designated to conduct the pre-trial investigation pursuant to Article of War 70, dated January 1, 1944, contains the statement that the accused admitted having had two glasses of wine but denied being drunk, that the general opinion of the witnesses was that he had been drinking but was not so drunk that he did not know what he was doing. Moreover, at the trial applicant testified that he did not feel the effects of the two drinks of wine he had consumed an hour and a half before the commission of the offenses. The record of trial affirmatively shows that the trial judge advocate in the presence of accused, and his counsel, stated he had no evidence of previous convictions." * * Good cause for the granting of relief under Article of War 53 does not appear; accordingly, the petition will be denied. E. M. BRANNON Major General, USA The Judge Advocate General cf. Harris v. Sanford, 78 F. Supp. 963, 964, hn 2, 3 (1947). Paragraph 79a of the Manual for Courts-Martial, U. S. Army, 1928. |