Ultimate Sacrifice or Ultimate Punishment: The Case of Eddie Slovik

I, Pvt. Eddie D. Slovik confess to the Desertion of the United States Army…I told my commanding officer my story.  I said that if I had to go out their again I’d run away.  He said there was nothing he could do for me so I ran away AND I’LL RUN AWAY AGAIN IF I HAVE TO GO OUT THERE.

Private Slovik wrote his confession and gave it to a nearby unit.  His apprehension of joining the United States Army had finally reached its apex.  Seven months prior to his confession, Pvt. Slovik was drafted and sent to basic training at Camp Wolters in Mineral Wells, Texas.  Pvt. Slovik first communicated his apprehension of joining the Army two days into basic training.  He wrote his mother:

Mommy, I am sorry without you…I think I’m going to have a lot of trouble.  Army life don’t agree with me.

And to his wife he wrote:

I am in the infantry for 17 weeks and after that I don’t know where I am going…Honest honey, I feel like crying every time I sit down to write you a letter…I am so unlucky

Pvt. Slovik served with the 109th Infantry Regiment.  In August of 1944, the 109th were deployed to France.  En route to their destination, the 109th experienced a German artillery offensive preceding the Battle of Hürtgen Forrest.  The shelling precipitated the first manifestation of Pvt. Slovik’s apprehension–he went AWOL.

Battle of Hürtgen Forest

Battle of Hürtgen Forrest

During his first AWOL period, Pvt. Slovik joined a Canadian unit for forty-five days.  Six weeks after joining the Canadians, Pvt. Slovik returned to the 109th.  Upon his return, he informed the company commander that he was “too scared, too nervous” to serve on the front lines of a rifle company.  He threatened to desert again if ordered to fight.

Nonetheless, Pvt. Slovik was ordered to fight.  Strategically, the Allies were in a precarious position.  The front lines were slowly pushed further East, approaching the German border.  General Eisenhower feared a large German offensive.  Eisenhower also feared desertions by his men.  Indeed, an estimate 40,000 deserted during the War.  Pvt. Slovik’s had to decide: would he give the ultimate sacrifice by dying in battle?  Or would he risk facing the ultimate punishment by deserting?

10 U.S.C. 885(c) provides the most severe penalty available for desertion during wartime:

(c) Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct…

Pvt. Slovik’s apprehension turned into action.  He asked his commander what the consequences would be if he fled. He was told that he would be charged with desertion.  Pvt Slovik deserted.

He surrendered to a nearby unit with a handwritten note  on October 8, 1944.  The note is quoted in part at the outset of this post.  He was returned to the 109th on October 9, 1944.  The Commander instructed him to destroy the note, which would be incriminating in a case against him.  Pvt. Slovik refused.  On October 19, 1944, Pvt. Slovik was charged with deserting twice, one for the period where he joined the Canadian military forces, the other for his surrender to a nearby American Army unit.

Before trial, Pvt. Slovik was offered a deal: if he went to the front lines, he would not be prosecuted.  He refused the offer and was subsequently tried for desertion.  At trial, he was found guilty and sentenced to death.  His case was reviewed by Brigadier General E.C. McNeil, the senior Judge Advocate General in Europe during the War.  General McNeil commented:

…In this case, the extreme penalty of death appears warranted.  This soldier had performed no front line duty.  He deserted from his group…His subsequent conduct adjudged was more severe than he anticipated, but the imposition of a less severe sentence would only have accomplished the accused’s purpose in securing his incarceration and consequent freedom from the dangers which so many of our armed forces are required to face daily…

General Eisenhower confirmed the sentence and ordered Pvt. Slovik’s execution by firing squad on January 23, 1945.  On January 31, 1945, Pvt. Slovik was executed for desertion.  He was the first to be executed for deserting during wartime since the Civil War; he remains the last, too.  Even Sergeant Charles Jenkins, who deserted the Army in 1965–he crossed the Demilitarized Zone into North Korea and did not return to the United States until 2004–was sentenced to only 30 days’ confinement.

Pvt. Slovik had to make a difficult decision.  He could face death by fighting, or face death by deserting.  He deserted.  But not because he feared death.  What he really feared was fate:

Slovik told the attending priest that he hadn’t been afraid to die; he’d feared the randomness of death in battle: “I guess that’s what I couldn’t take–that uncertainty”

Pvt. Eddie Slovik

Pvt. Eddie Slovik
February 18, 1920 – January 31, 1945


Allen Pusey; January 31, 1945: Pvt. Eddie Slovik Executed, available at: http://www.abajournal.com/magazine/article/january_31_1945_pvt._eddie_slovik_executed/

Zena Simmons; The Execution of Pvt. Eddie Slovik, available at: http://apps.detnews.com/apps/history/index.php?id=103&CFID=12195516&CFTOKEN=73812108

Fred L. Borch III; Lore of the Corp: Shot by Firing Squad: The Trial and Execution of Pvt. Eddie Slovik, 2010 Army Law. 3

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Fork in the Road: Picking the Right Review Board

There are two types of boards that review military records: Discharge Review Boards (“DRB’s”) and Board(s) for Correction of Military Records (“BCMR’s”).

Both have a similar endgame: to affirm or deny the statements in the applicant’s Official Military Personnel File (“OMPF”).  A Service member’s OMPF contains a number of documents relating to his/her service time: enlistment contract(s), duty stations and assignments, training, qualifications, awards and decorations received, disciplinary actions, separation packets, etc.

Occasionally, these records are not accurate or contain unjustified information. What then?

Congress created DRB’s and BCMR’s for just this problem. They can perform similar functions, but there’s always a right review board to in which to apply.

The first step is deciding what needs to be corrected. Let’s start with an easy example. Say a veteran wants to expunge his/her OMPF of a non-judicial punishment, or “NJP”. There is only one review board that can grant such relief: the Board(s) for Correction of Military Records.

10 U.S.C. 1552(a)(1) explains that BCMR’s may correct military records :

The secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. 

10 U.S.C. 1552(g) explains the definition of military records:

…[T]he term ‘military record’ means a document or other record that pertains to (1) an individual member or former member of the armed forces, or (2) at the discretion of the Secretary of the military department concerned, or any other military matter affecting a member of the armed forces…Such term does not include records pertaining to civilian employment matters.

As the statute details, BCMR’s have expansive powers to correct records.  Indeed, the only qualification is the correction be necessary to correct an injustice or error.

To further illustrate this point, let’s look at Army Board of Military Correction Docket Number AR2004104910.  In this case, the applicant requests that a document denying him award of the Army Good Conduct Medal be expunged from his OMPF.  The Board noted the following:

An undated endorsement, authenticated by the chief of personnel support division on behalf of the Commander, United States Army Armor Center and Fort Knox, and addressed to the Commander, United States Army Enlisted Records and Evaluation Center, indicated that the ‘attached disqualification pertaining to [the applicant] has been approved by this command…’

As previously stated, the Board must find an error or injustice before correcting the record.  In this case, the Board found that the OMPF-in-question lacked the necessary documentation to disqualify a soldier from the Army Good Conduct Medal.

Pursuant to Army Regulation 600-8-22, a solider may be disqualified from award of the Army Good Conduct Medal by preparing a statement of rationale for the disqualification, which should include the period of disqualification.  This statement will then be presented to the solider for comment.  After considering the soldier’s statement, the unit commander will, if the decision remains the same, forward the commander and soldier’s statement to the solder’s OMPF.

This documentation, however, was missing from the applicant’s file.  Accordingly, the Board observed:

In view of the fact that the applicant’s OMPF does contain a statement and an order approving award of the Army Good Conduct Medal for the period 10 November 1999 to 9 November 2002 and does not contain all the documents required for disapproval of the award, it would be appropriate, and in the interest of justice and equity to expunge the undated disqualification endorsement from the applicant’s file.

When a Service member needs a record changed, it’s safe bet that the BCMR’s are the review boards in which to apply.  However, when the applicant’s characterization of service is the desired change, selecting the appropriate review board requires more information.

In short, if the Service member has been discharged within the previous 15 years, the application should be directed to the DRB’s (the date of discharge can be found on any DD 214).  This can be found at 10 U.S.C. 1553(a)

The Secretary concerned shall, after consulting the Secretary of Veterans Affairs, establish a board of review, consisting of five members, to review the discharge or dismissal (other than a discharge or dismissal by sentence of a general court-martial) of any former member of an armed force under the jurisdiction of his department…A motion or request for review must be made within 15 years after the date of the discharge or dismissal.

Addressing characterizations of service less than 15 years old is the singular function of DRB’s. Unlike their BCMR counterpart, DRB’s cannot review the accuracy or equity of other military documents.  If any relief is requested beyond a change in the characterization of discharge, the applicant will be informed that the DRB is the incorrect venue and will be instructed to apply to the appropriate BCMR.

But what about discharges that are older than 15 years?  At this age, a characterization of service can still be changed, but only by the BCMR’s.  While BCMR’s do not have the 15 year limit that DRB’s have, BCMR’s have their own statute of limitation, as detailed in 10 U.S.C. 1552(b):

No correction may be made under subsection (a)(1) unless the claimant or his heir or legal representative files a request for the correction within three years after he discovers the error or injustice.

Unlike the authorizing statute of the DRB’s, 10 U.S.C. 1552(b) has an exception:

However, a board established under subsection (a)(1) may excuse a failure to file within three years after discovery if it finds it to be in the interest of justice.

If a BCMR receives a request for a characterization of service change that’s less than 15 years of age, the BCMR will instruct the applicant to apply to the appropriate DRB.  Again, the DRB’s and BCMR’s have similar functions, but there is a right–and wrong–review board to seek relief.

In short, when choosing a review board, ask yourself what needs to be changed:

  • If a military record needs to be changed, apply to a BCMR.  Make sure it is within three years of the discovery of the error, or explain why the interests of justice necessitate review.
  • If a characterization of service needs to be changed, apply to a DRB
  • If a characterization of service needs to be c.hanged, but it’s older than 15 years, apply to a BCMR.  Make sure it is within three years of the discovery of the error, or explain why the interests of justice necessitate review.
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Remembering “Stormin’ Norman”

The Texas Veterans Legal Assistance Project joins the countless Americans mourning the loss of General Norman Schwarzkopf, Jr., Commander of coalition forces during the Gulf War. He was 78 years old.

President George H.W. Bush, former Naval officer during World War II and Commander-in-Chief during the Gulf War, said this of the fallen General:

“Barbara and I mourn the loss of a true American patriot and one of the great military leaders of his generation. A distinguished member of that Long Gray Line hailing from West Point, General Norm Schwarzkopf, to me, epitomized the ‘duty, service country’ creed that has defended our freedom and seen this great Nation through our most trying international crises. More than that, he was a good and decent man — and a dear friend. Barbara and I send our condolences to his wife Brenda and his wonderful family.”

Here’s what the media are saying following the passing of this great American:

“In Operation Desert Storm, General Schwarzkopf orchestrated one of the most lopsided victories in modern warfare, a six-week blitzkrieg by a broad coalition of forces with overwhelming air superiority that liberated tiny Kuwait from Iraqi occupation, routed Saddam Hussein’s Republican Guard and virtually destroyed Iraq’s infrastructure, all with relatively light allied losses.”

New York Times: Lionized for Lightning Victory in ’91 Gulf War

“The 1991 campaign to expel Iraqi troops from Kuwait began with an aerial bombardment,which Americans watched unfold live on CNN as the nation’s the first-ever armchair war experience. That was followed by a ground assault, and then a cease-fire 100 hours later. Gen. Schwarzkopf, using maps and pointers to describe the combat, became an iconic image of the war.

Asked at a press briefing in 1991 about Mr. Hussein’s military skills, the general gave one of his blunt and biting retorts: ‘He is neither a strategist, nor is he schooled in the operational art, nor is he a tactician, nor is he a general, nor is he a soldier. Other than that, he’s a great military man—I want you to know that.’”
Wall Street Journal: General Led International Coalition in First Gulf War

“On Morning Edition, retired Maj. Gen. Robert Scales Jr., who served with Schwarzkopf and who wrote a history of the Gulf War, told host David Greene that the victory in Kuwait ‘removed the scar of the Vietnam generation’ from officers, such as Schwarzkopf, who had also served in that earlier war.

Schwarzkopf never forgot the Vietnam experience, Scales said, and ‘spent those 20 years after Vietnam working to rebuild the Army.’

The general’s ‘streak of independence’ led him to reject some of the early plans for the Gulf War and to demand more forces for the effort, Scales added. And in the end, Schwarzkopf’s demands produced a fast, decisive victory.”

National Public Radio: Remembering Gen. Schwarzkopf, ‘Military Hero Of His Generation’

“At the peak of his postwar national celebrity, Schwarzkopf — a self-proclaimed political independent — rejected suggestions that he run for office, and remained far more private than other generals, although he did serve briefly as a military commentator for NBC.”

Fox News: Gen, Norman Schaezkopf, coalitiong forces leader during Persian Gulf War, dies

Thank you, General Schwarzkopf, for your dedication to serving the United States. Your fellow countrymen owe you and your family a debt of sincere gratitude.

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