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Putting my story to rest

March 22, 2015

Photo on 3-28-15 at 5.00 PM

Below I have copied and pasted the decision by the United States Court of Military Appeals that exonerated me from slapping my commanding officer in 1970 while a private in the Marine Corps. Slapping might just be too strong a word. I was so afraid! Perhaps he didn’t even feel my hand upon his face. I remember that he did not appear to have shaved very recently, probably many hours before. He was much shorter than I, certainly chubbier, an officer! A major. My most vivid thought was of my imagination: the countless enlisted, many black, who would have given anything to have had the opportunity to do what this major was asking me to do!

UNITED STATES, Appellee v DANIEL R. STRUCKMAN, Private, U.S. Marine Corps, Appellant

No. 23,837

United States Court of Military Appeals

20 U.S.C.M.A. 493; 1971 CMA LEXIS 688; 43 C.M.R. 333

April 9, 1971

PRIOR HISTORY: [**1] On petition of the accused below. NCM 70-2836, not reported below. Reversed.

COUNSEL: Lieutenant Kenneth N. Beth, JAGC, USNR, was on the pleadings for Appellant, Accused.

Commander Michael F. Fasanaro, Jr., JAGC, USN, was on the pleadings for Appellee, United States.

Opinion of the Court
As a result of rejecting proposed nonjudicial punishment for a sevenday unauthorized absence, the accused was called to the squadron office to confer with the commanding officer. The conference ended when the accused struck the commander in the face. The incident led to a charge against the accused of assault upon a superior commissioned officer in the execution of his office, in violation of Article 90, Uniform Code of Military Justice, 10 USC § 890.
The case was tried before a military judge sitting without court members. After he convicted and sentenced the accused for the assault and the unauthorized absence, he recommended clemency because of the “extremely aggravating circumstances” to which the accused had been subjected. Our reading of the record of trial convinces us there was more than aggravation meriting clemency.
Since the accused [**2] appeared to be smiling “with his face” when he entered the office, the commander asked him “what’s so funny goofy”? The accused reported in a “military manner.” Thereafter, he remained in the position of attention for a time while the commander examined his service record book. At one point, the accused asked permission to speak, but the commander told him he could “speak when I tell you to.” When that time came, the commander advised the accused of his rights under Article 31, Code, supra, 10 USC § 831, and proceeded to question him about his civilian background and his attitude toward the Marine Corps. In the course of questioning, he charged the accused with not being a man, and asserted he was a coward with about a two-foot “streak of yellow” down his back. Finally, he asked the accused to tell him “what . . . [he] would like.” The accused answered that he would “like to see the Marine Corps flat on its back with its heels in the air.” The commander regarded the comment as “an affront,” and he admitted that it made him “mad.”
According to a Government witness, the commander “arose hurriedly,” went around his desk at a “faster than normal walk,” approached the accused, and [**3] said “he represented . . . [the] Marine Corps, let’s see you put me on my back.” The accused testified that he understood the statement “as a challenge from one man to another and if I was sincere in what I said, I should hit him.” Consequently, he turned from his position of attention and struck the commander. Immediately, the squadron first sergeant was “on” the accused and thrust him against the wall. Just then another officer entered the office, and the commander [***335] [*495] directed the first sergeant “to call Security.”
To us, the evidence portrays a situation in which the commander, by words and action, abandoned his position and his rank. In consequence, the accused’s response to the words and conduct “did not, as a matter of law, detract from the authority and the person” of the commander, as a commander or as a commissioned officer. United States v Noriega, 7 USCMA 196, 198, 21 CMR 322 (1956). The findings of guilty, therefore, are not sustainable as a violation of Article 90, Code, supra.
The decision of the United States Navy Court of Military Review is reversed. The nature of the remaining offense and expiration of the period of confinement that was [**4] imposed make it inappropriate to continue the proceedings. United States v Evans, 18 USCMA 3, 39 CMR 3 (1968). We, therefore, set aside the findings of guilty and the sentence and order the charges dismissed.

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