The reviewing authority approved the sentence but reduced the confinement to thirty years. A board of review, constituted under Article of War 501⁄2, held the record of trial legally sufficient to support the findings of guilty and the sentence as approved, which sentence was then ordered executed. By subsequent clemency action accused's sentence to confinement was remitted on August 11, 1948.

Applicant now submits a petition for relief under Article of War 53 requesting a new trial, admitting that his trial was just, but specifying as "the only error" that he did not use counsel to the fullest extent (urging a very brief pretrial consultation) and because assertedly he was so nervous that he could not think and talk for himself at the trial. In the application, petitioner admits that he "deserted the Army during combat", but urges lack of self-control through fear as the reason. He denies insanity although he asserts that he once weighed the expedient of pleading temporary insanity.

The evidence in the case discloses the following proof of the charges: on September 17, 1944, applicant's unit was engaged with the enemy, attacking toward St. Germaine, France, meeting small arms, mortar and artillery fire; at about 3:00 p. m. Pugliano left his squad and retreated until he encountered his platoon sergeant; he told the latter that he "couldn't take it"; the sergeant calmed him and after he remained there about a half hour, he moved back to his squad; that night the sergeant saw him again, and he "seemed calmer", but Pugliano could not be found after 11:00 p. m. September 17, 1944, until he was returned to military control on September 20, 1944.

Accused pleaded not guilty and made an unsworn statement through counsel that he had no prior convictions by court-martial, that he fought through the African and Sicilian campaigns with the 9th Division, and that he had been with the 3rd Division since that time.

A psychiatric examination of applicant was made on September 28, 1944, and it disclosed that Pugliano had a "phlegmatic cautiously shrewd nature", was well aware of his "rights", gave no evidence of combat neurosis, and was free of any mental disease, disturbance or defect; the examiner's report added that nothing was discovered which might reasonably have interfered with his judgment or expected sense of duty. No indication has been found that this estimate was erroneous, or that accused was subject to or influenced by any greater mental persuasion to desert at the time of his comrade's greatest need than was brought to bear upon the many faithful soldiers who resisted the common fear which is said to oppress all (no matter how brave by nature) who are in the vicinity of enemy fire.

The record of trial also reveals that applicant was afforded ample opportunity to express himself during the trial and that after advice as to his rights both by his counsel and by the court, he elected to make an unsworn statement through his defense counsel. No assertion is made by accused that counsel in any way failed to provide effective representation, nor do the facts justify such a claim. The wisdom of defense action, submitting the case upon an unsworn statement cannot be properly questioned since a defense based upon a claim that a desertion resulted from cowardice could have been expected to receive little sympathy under the battle conditions then obtaining.1

Records of the Department of the Army disclose that the defense counsel, Lieutenant Phelps, received a Bachelor of Laws degree in 1939 and was engaged in the practice of law from 1939 to 1942. *

Good cause for the granting of relief under Article of War 53 does not appear; accordingly, the petition will be denied.

SUBJECT: Application by Virgil W. Seals for Relief under Article of War 53 in the Case of Technician Fifth Grade Virgil W. Seals, 38707805 (CM 314632)

Applicant was tried with Dale T. Hofmann in a common trial by general court-martial at Pusan, Korea, on May 7, 1946, found guilty of neglectfully suffering the wrongful sale of gasoline, military property of the United States, on or about March 11, 1946, to Korean nationals, in violation of Article of War 83. Each was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for one year. The reviewing authority approved the sentences and ordered them executed, but suspended the execution of the dishonorable discharges until the soldiers' release from confinement. The record of trial was examined in

1 Diggs v. Welch, 148 F. 2d 667, 668, 670, hn 1, 2, 5, (App. D. C., 1945), cert. denied 325 U. S. 889; Sanford v. Robbins, 115 F. 2d 435, 438, hn 13, (C. C. A. 5th, 1940); in re Fisher, 179 F. 2d 361, 363, hn 1, (C. A. 7th, 1950); United States ex rel Webber v. Regan, 176 F. 2d 579, 586 hn 18, (C. A. 7th, 1949); United States v. Wight, 176 F. 2d 376, 379, hn 6, (C. A. 2d, 1949); Lewis v. Sanford, 79 F. Supp. 77, 78, hn 2, 3, 4, 5, (D. C. N. D. Ga., 1948).

accordance with Article of War 50% and was held to be legally sufficient to support the sentences. Seals now presents an application for relief under Article of War 53.

The petitioner contends that, at the time he was detailed as acting motor sergeant, no government property was "checked into" him, that he was not aware of the amount of government property in the motor pool during the time he was placed in temporary charge thereof, and that a confession admitted into evidence was obtained by duress.

The record of trial reveals the following: that Seals was assigned as a mechanic in the 71st Station Hospital; that for an undisclosed period of time, he served as acting motor sergeant and in such capacity was charged with "the responsibility of the motor pool", serving under Lieutenant Murphy, Commanding Officer of the Hospital; that gasoline, for use in the hospital vehicles, was stacked in fifty-three gallon drums inside of the gate, and guards were posted near the dump; that prior to the offense with which accused was charged, no regular inventory of the supply was made; that gasoline was drawn by the drivers of the vehicles as needed and records were kept in the motor pool; that use of gasoline was not excessive; and that no records were kept which disclosed the amount of gasoline expended.

The commanding officer of the hospital testified that neither of the accused at any time reported to him that gasoline was being sold, that he first learned of sales on March 20, 1946 when he went to the office of the Provost Marshal, that this matter was never otherwise brought to his attention except that Seals on "Saturday night or Sunday morning" reported two drums of gasoline and six drums of oil missing from the dump. The lieutenant further stated:

66* * It was on the night of 19 March that four more drums were taken. That morning the men reported to me that it was missing. We traced the trail of these four drums and found them in a Korean home approximately four blocks from the hospital along with the other gasoline. I immediately reported it to the Provost Marshal.

*

He added that they were hospital drums and United States property. The drums of gasoline were found in the home of a Korean truck driver, Kim Tal Won, a Korean national. He testified that Lee Bong Ho bought six drums of gasoline from a man named Jennings, paying 20,000 yen. The witness stated that he had talked with accused but that the discussions had never pertained to gasoline. In his statement, introduced in evidence, Seals admitted that he knew gasoline was being sold out of "out" motor pool, that he received money from men named Cicole and Jennings

for the sale of gasoline, and, in particular, that he knew that Jennings sold six drums of gasoline to the Korean, Lee Bong "Oh".

At the time of his arrest, Seals had 1553 yen in his possession and he and his co-accused, Hofmann, "admitted that they had purchased money orders using their own names and gave them to Tony Cicole for him to send home." Petitioner claimed the money discovered in his possession came from gambling. During further interrogation, "the two accused admitted taking money from two other soldiers connected with the hospital derived from sales of gasoline."

The official government price listing of gasoline was 29.9 cents per gallon and each drum contained fifty-three gallons.

At the trial, the accused contended that adequate warnings under Article of War 24 were not given, that promises amounting to offers of clemency were made, that the questioning was lengthy, that they were placed in fear because of the proximity of a revolver, a knife and a pair of brass knuckles during questioning, that they were ordered to sign the statements, and that no officer was present during the interrogations. Investigating agents swore that accused were re-questioned several times, that no promises of immunity were extended nor threats made, that the provisions of Article of War 24 were read to the accused, and that no force or duress was used to secure the statements. Two agents testified that a pair of confiscated brass knuckles were in sight in the room during the interrogation.

Applicant's assertion that his confession was improperly obtained and introduced into evidence is not meritorious. The record discloses that he was adequately warned of his rights under Article of War 24. Furthermore, although it is apparent that the parties were interrogated on several occasions, no interview appears to have been of undue duration, nor were the accused deprived of necessities or otherwise physically abused. It cannot be said that the mere presence in sight of pistol, knife, and brass knuckles, without more, constituted a mode of coercion or unlawful influence. In places of confinement and interrogation, and for that matter in most centers of Army activity in a place such as Korea under the conditions then obtaining, the sight of a weapon lying on a table cannot be asserted as a novelty, or as something to frighten a non-commissioned officer into making a confession. It does not appear that the accused seriously contended at the trial that the weapons were used in such a manner as to force a confession. The trial court resolved this issue against the applicant, and the record in its entirety indicates that such ruling was proper.

The present contention of petitioner that he was unaware of the amount of government property in the motor pool at the time

the offense was allegedly committed and that he did not receipt for the property at the time of his assignment as acting motor sergeant does not state a defense nor alter the criminal liability of accused. As the individual in charge, his responsibility for property in his care could not be delimited by his simple mechanical failure to sign a receipt for the government gasoline. If he did not know the extent of the goods in his charge or take steps to ascertain, he evidenced an additional basis for a finding of neglect and emphasized his guilt. His lack of information as to what property he had made peculations by others easy. Concerning charges brought under Article of War 83, it has been stated:

"Persons subject to military law may be charged under the 83rd Article of War with suffering military property willfully or through neglect to be lost, spoiled, damaged or wrongfully disposed of where the circumstances indicate that they knew the loss to be imminent or actually going on and took no steps to prevent it, or omitted to take such measures as were appropriate to prevent probable loss or damage." (Italics supplied).1

Seals obviously "omitted to take such measures as were appropriate to prevent probable loss or damage." The term "neglect" may be indicative of carelessness, and "it may also merely mean an omission or failure to do or perform a given act." The record is bare of indication of any action taken by petitioner, in the face of the disappearing gasoline, to avoid further loss to the government. That it was possible to keep a check is evidenced by the fact that at the time of trial a daily tabulation was made. When the petitioner assumed the duties of acting motor sergeant, he undertook by that act to bring to bear in the discharge of those duties the exercise of that care and diligence which a cautious, prudent person would apply to his own affairs. His responsibility was not to be measured by the highest possible requirement, but upon a reasonable basis of caution and diligence. A property shortage was proved and accused's culpable responsibility therefore was manifest. In addition, while the complete extent of his activity in the actual sale is not shown, it was established that the offense was greatly aggravated by his sharing in the fruits of the illegal transaction. The record adequately indicates a wrongful disposition of the property and a failure to perform the duties of the office in a manner commensurate with the responsibilities thereof."

* * *

1 CM 204405, Rose, 8 BR 1, 4.

2 H. Hackfeld and Co. v. United States, 197 U. S. 442, 449, hn 1, (1905).

8 Martin v. United States, 37 Ct C1 527, 531, hn 3, (Court of Claims, 1902).

In re Yamashita, 327 U. S. 1, 13, hn 3, (1946); Thomas v. Taylor, 224 U. S. 73,

81, hn 5, (1912); CM ETO 11500, Hulett, 24 BR (ETO) 163, 170, 175.