August 28, 2019 Headnotes: Legal Lore

Cowardice in Korea? The Trial of Lieutenant Leon A. Gilbert for Misbehavior Before the Enemy

Fred L. Borch

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On June 25, 1950, about 10,000 North Korean People’s Army soldiers, and about 100 tanks and aircraft, crossed the 38th parallel in an invasion of South Korea. American and South Korean forces were completely unprepared for the attack. Resistance quickly collapsed, and American troops retreated down the Korean Peninsula toward the port of Pusan. By early August, a defensive position known as the Pusan Perimeter had been established, but before that time, it was hard going for U.S. troops—as reflected in events involving First Lieutenant Leon A. Gilbert on July 31, 1950.

Gilbert was the commander of Company A, 24th Infantry Regiment, and his unit occupied the right flank of the regiment’s most forward line of resistance. On the afternoon of July 31, Communist forces had penetrated this line, and it seemed that Gilbert and his men might be cut off. While tanks and infantry were sent forward to counter the enemy’s breakthrough, the regiment’s executive officer saw Gilbert and a small group of men heading toward the rear.

When questioned where he was going, Gilbert replied that he had been cut off from his company by sniper fire and could not return. Colonel Horton V. White, the regiment’s commanding officer, ordered the soldiers to return to the front. All the enlisted soldiers complied with the order—except Gilbert, who insisted that he was “scared” and could not go back, adding that he had a “wife and children to consider.” Although White persisted in ordering Gilbert to rejoin his company and reminded him that his refusal exposed him to very serious consequences, Gilbert insisted he could not go forward.

In a general court-martial held only 200 yards from the front, Lieutenant Gilbert was tried for “misbehavior before the enemy” in refusing his commander’s order “to advance with his command” against the North Korean enemy. The facts were not really in dispute, in that Gilbert had refused to return to the fight despite the orders of his regimental colonel.

The defense, however, offered a great deal of testimony about Lieutenant Gilbert’s state of mind on July 31. There was evidence that some six years previously, while Gilbert was serving as an officer in the 92d Division in Italy, he been sent to the rear after the division psychiatrist determined that his “intolerance to artillery fire” made him unfit for duty. This was important, because an Army psychiatrist who examined Gilbert prior to trial provided an affidavit stating that, on July 31, 1950, Gilbert “was suffering from a nervous illness, anxiety reaction, acute, . . . which would prevent him from carrying out his duties as ordered.”

After hearing the evidence from both sides, however, the court-martial panel of officers rejected the defense of mental irresponsibility and found 29-year-old Gilbert guilty of the charge. He was then sentenced to death.

The Army’s Board of Review, a quasi-judicial appellate court sitting in Washington, D.C., held that the record of trial was legally insufficient to support the verdict because the prosecution had failed to prove Gilbert’s sanity beyond a reasonable doubt. The next-higher-level quasi-appellate court, the Judicial Council, then examined the Gilbert case. This council, consisting of three judge advocate brigadier generals, rejected the Board of Review’s decision and ruled that Lieutenant Gilbert was mentally responsible. But the council recommended against any death sentence for Gilbert, suggesting instead that President Harry S. Truman, who had to take personal action in any court-martial involving capital punishment, commute Gilbert’s sentence to a dismissal and 30 years’ confinement at hard labor. On November 27, 1950, Truman took action in Lieutenant Gilbert’s case, deciding that he should be dismissed from the service (the officer equivalent of the dishonorable discharge) and be imprisoned for 20 years.

United States v. Gilbert is important in legal history for at least two reasons. First, the death sentence, while entirely permissible under the Articles of War (the case was tried before the Uniform Code of Military Justice became effective), was excessive. After all, was Lieutenant Gilbert truly a coward? Or were his actions simply the result of his poor mental state? Of course, with the trial convened 200 yards from the front lines and with U.S. troops retreating in the face of the North Korean enemy, the death sentence imposed at the time was understandable. But the Gilbert case was only one of many courts-martial coming out of Korea in which the sentences imposed by military juries could be not only excessive but also dissimilar for like offenses. As a result, Army lawyers began carefully monitoring courts-martial coming out of Korea to mitigate excessive sentences.

Second, the Gilbert case highlighted the problems in the racially segregated Army of 1950: Gilbert was an African American officer serving in the all-black 24th Infantry, and it is likely that the “Jim Crow” attitudes then prevalent among white soldiers in the Army influenced at least some of the jurors in his case—all of whom were white. While President Truman had ordered the armed forces to desegregate in 1948, the Army had done almost nothing to desegregate units like the 24th, in which all enlisted men were black and all senior officers were white.Consequently, outside observers naturally questioned whether the white officers who sat as the jury in Leon Gilbert’s court-martial gave him a fair trial. The National Association for the Advancement of Colored People and an attorney named Thurgood Marshall did not think so and protested loudly against any death sentence for Leon Gilbert. And what happened to Gilbert? Although he had received a 20-year sentence, he was paroled after five years and returned to his home in York, Pennsylvania. He worked as a cutter at a woman’s clothing manufacturer for many years and died in 1999.

Fred L. Borch

The author is the regimental historian and archivist for the Judge Advocate General’s Corps, U.S. Army.