With reference to applicant's assertion that he was intoxicated at the time of these offenses, it should be noted that although it is a general rule of law that voluntary drunkenness is not an excuse for a crime committed while in that condition, yet it may be considered as affecting mental capacity to entertain a specific intent where such intent is a necessary element of the offense. However, in the crimes of rape and sodomy, it is not necessary to allege or prove any specific intent." As a matter of fact, his actions indicated that he was not so intoxicated as to be unable to reason, to move about freely and to subdue his victim. He gave the latter the impression that he was "feigning drunkenness". * * * Oral argument, presented on October 9, 1950 by Mr. Frank A. Doughman, Atlanta, Georgia, has been considered in arriving at the decision herein expressed. Good cause for the granting of relief under Article of War 53 does not appear; accordingly, the petition will be denied. SUBJECT: Application for Relief under Article of War 53 in the Case of Private George F. McPeters, 14009262, Detachment Quartermaster Corps (W), Station The applicant was tried by general court-martial at Camp Blanding, Florida, on September 14, 1943; he pleaded guilty to absence without leave but was found guilty of desertion in violation of Article of War 58. He was sentenced to dishonorable discharge, total forfeitures, and confinement at hard labor for five years. The reviewing authority approved only so much of the sentence as provided for dishonorable discharge, total forfeitures and confinement at hard labor for two and one-half years, and directed that execution of the dishonorable discharge be suspended until release from confinement; as thus modified, the sentence was ordered executed. Thereafter the record of trial was 3 Paragraph 140 of the Manual for Courts-Martial, U. S. Army, 1949; CM 317948, Wells et al, supra, pp. 97, 98. examined in the office of The Judge Advocate General and found legally sufficient. The suspension of the dishonorable discharge was vacated, and the discharge was executed on October 5, 1944, pursuant to the recommendation of a board of officers convened to consider restoration to duty. The accused was released from confinement on July 18, 1945, upon the expiration of his sentence. An application for change in type of discharge was later submitted to the Army Board on Correction of Military Records, but the board declined to act because it found that a legal question was involved which would be more appropriate for consideration under Article of War 53. A petition is now submitted by Joe McPeters, father and legal guardian of the accused, for relief under Article of War 53. It is requested that the dishonorable discharge be vacated and that an honorable discharge be issued to the accused. It is contended that the accused was in normal mental health at the time of his Army enlistment in 1940, but that he was not mentally responsible at the time of the alleged offense. To support the petition for relief, the applicant presents: a number of affidavits of neighbors in accused's home community, concerning the mental condition of the accused at various times; affidavits of McPeters' father; and a transcript of proceedings in the Superior Court of Yancey County, North Carolina, showing that George McPeters was judicially declared incompetent on October 22, 1949. The accused enlisted in the Army on August 13, 1940, and was assigned to the Station Complement of Fort Bragg, North Carolina; he was transferred to the Station Complement of Camp Blanding, Florida, on November 22, 1940. He was absent without leave from December 11 until December 13, 1940, and from January 25 until February 13, 1941; for these absences he received a forfeiture as the result of summary court proceedings. He then left the service without permission on August 5, 1941, and was returned to military control on July 31, 1943 after having been arrested by the civilian authorities in civilian clothes on March 13 of that year. At the ensuing trial for desertion by general courtmartial, the only witness who testified under oath was Captain Frederick T. Seward, psychiatrist of the Camp Blanding Station Hospital, although the accused made a short unsworn statement in which he admitted his absence without leave but said he "had been sick" with "nerves and my back" and "couldn't get anything to ease the pain so I went AWOL, decided I wasn't any good to the Army." Captain Seward testified at the call of the defense that McPeters was a patient of his for about three weeks, and was under daily observation; that the accused was suffering from psychoneurosis and hypochondriasis, and that separation from the service under "Section VII of Army Regulations 615-350" as physically and mentally unfit for further service (probably meaning paragraph 48b (I) (b), AR 615–360, dated May 25, 1944), had been recommended, but that accused was sane and responsible for his acts. The entire medical record of McPeters was reviewed by the office of The Surgeon General of the Army for the consideration by the Army Board on Correction of Military Records, and the following conclusion was reached, as shown by memorandum dated February 7, 1950: "In view of the affidavits which give evidence of the bizarre actions and ideation of this individual while AWOL, and of the course of the case subsequent to his discharge from confinement (declared mentally incompetent in legal proceedings; behavior grossly eccentric), it is probable that diagnoses rendered in the military service were incorrect. It is probable that McPeters was psychotic at the time of offense and trial, and not mentally responsible." For the purpose of consideration for relief under Article of War 53, the office of The Surgeon General again reviewed the case. the record of trial with Captain Seward's diagnosis and testimony being included in their consideration. The opinion previously given was reiterated, with the conclusion that the accused was not mentally responsible at the time of the offense of which he was convicted. The Surgeon General also expressed the opinion that the petitioner was probably psychotic at the time the dishonorable discharge was executed. In view of this opinion by The Surgeon General of the Army, and supporting facts in the case, it appears that an injustice has been done, and that the trial and conviction of the accused were improper, since he does not appear to have had such mental responsibility as would make him legally capable of committing the offense charged. Therefore, good cause having been shown, the findings and sentence of the general court-martial which convicted the accused will be vacated. Any rights, privileges, and property of which accused may have been deprived by virtue of the findings and sentence will be restored, and a discharge from the Army effective as of October 5, 1944, in accordance with the provisions of Section II, Army Regulations 615-360, dated May 25, 1944, will be substituted for the dishonorable discharge previously executed. No adjudication is made as to whether the mental disability referred to was service incurred. E. M. BRANNON The Judge Advocate General JAGY CM 302791 25 October 1950 MEMORANDUM OPINION SUBJECT: Application for Relief under Article of War 53 in the Case of Heinrich Kaukoreit, Herbert Ackermann, and Ernst Bald, members of the German Surrendered Forces (CM 302791) The applicants, Oberwachmeister (Master Sergeant) Heinrich Kaukoreit, Unteroffizier (Sergeant) Herbert Ackermann, and Wachtmeister (Technical Sergeant) Ernst Bald, were tried by general court-martial at Treponti, Italy, on September 14 and 24, 1945, charged jointly with murder in violation of Article of War 92. They were members of the 1st Squadron, Mountain Reconnaissance Unit 85, of the German Army, and at the time of the offense they were in the status of surrendered enemy military personnel. All three were found guilty as charged, and were sentenced to be executed. After the reviewing authority had approved the findings and sentences, and a board of review constituted under the provisions of Article of War 502 had held the record of trial legally sufficient, the President of the United States confirmed the sentences but commuted them to confinement at hard labor for life; as thus commuted, the sentences were ordered executed. The three accused, through their German attorney, Dr. Werner Harr, Burbach Kreis Siegen, Germany (British Zone), now file a joint petition for relief under Article of War 53, requesting as alternate remedies a retrial before a United States military court, committal for trial by a German "jury court" in the American Zone, appellate review by a United States military court, or reduction of the sentence by clemency. The petitioners contend (1) that the court-martial lacked jurisdiction because the document of surrender of the German forces in Italy allegedly provided that captured enemy personnel would not be subject to American military law until the time they passed through prisoner of war enclosures, but instead would be subject to German military law and courts, and the homicide was committed before this passage through the enclosures; (2) that the rights of the petitioners were prejudiced by the asserted failure to make available, at the trial, the surrender document; (3) that their rights were prejudiced because an assistant defense counsel, a German officer, allegedly was not present at one session of the trial; (4) that there was no malice in the homicide, but that it was committed for the safety of the perpetrators and their company, and to maintain discipline so that the surrender could be carried out in an orderly manner in accordance with the American order contained in the surrender document; (5) that an order by Hitler furnished a basis for the "emergency court-martial" whose decree was alleged to have ordered the homicide, and that the applicants believed this order to be binding upon them in convening the "court" and carrying out its sentence; (6) that the "emergency courtmartial" and resulting homicide were ratified by the appropriate German military commanders of the petitioners; and (7) that the personal circumstances of the accused, and their remorse, warrant consideration for clemency. As exhibits in support of their petition, applicants present the following: (1) The translation of an asserted directive of the Wehrmacht (Armed Forces) Supreme Command, dated January 18, 1945, of which the part authorizing "emergency courts-martial" is as follows: * * ** "In case a convening authority cannot be reached immediately, the nearest regimental commander (naval captain, air commodore) and every commanding officer carrying out corresponding functions is obliged instantly to call an emergency court provided that danger is threatening or the matter will not brook delay because evidence might be weakened or real facts veiled. Convening authorities and authorities entitled to call an emergency court have the right (with regard to the offenses enumerated in Chapter II) immediately to confirm deathsentences against everybody, even against officers of every rank, in case the immediate execution of the death-sentence is necessary in order to maintain discipline and that it may serve as a warning to the unit. The compass of the right of confirmation with regard to imprisonment depends on the provisions of the respective service of the Wehrmacht. The deathsentence shall be carried out instantly in front of the unit." [Emphasis supplied] |