RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 July 2006
      DOCKET NUMBER:  AR20050013534


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Donald L. Lewy                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that her great-great grandfather's records, a
deceased former service member (FSM), be corrected to show he was honorably
discharged.

2.  The applicant states that the FSM served two periods of service during
the Civil War and that he volunteered both times.  The applicant continues
that he joined Damron's Independent Company, Virginia Volunteers and was
taken to Kentucky as a prisoner.  The applicant argues that the FSM
received an honorable discharge for his first period of service and that he
contracted Erysipelas [An acute disease of the skin and subcutaneous tissue
caused by a species of hemolytic streptococcus and marked by localized
inflammation and fever] of his eyes while serving with the 65th Illinois
Infantry.

3.  The applicant continues that the FSM had release papers from a doctor
assigned to the 65th Illinois Infantry and that he lost those papers.  The
applicant further contends that the FSM tried to get his discharge changed
to an honorable and that he received an honorable discharge for his service
with Damron's Independent Company, Virginia Volunteers.

4.  The applicant provides a copy of the FSM's pension papers in support of
this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 28 December 1878, the date of the FSM's discharge.  The
application submitted in this case is dated 19 August 2005.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.



3.  The FSM's records were furnished by the National Archives and Records
Administration.  Complete service records were not available for review
with this case.  However, sufficient records were available to make a fair
and impartial determination.

4.  On 1 October 1861, the FSM joined the Damron's Independent Company,
Virginia Volunteers  and served until 20 March 1862.  On 23 June 1862, FSM
voluntarily enlisted in Company I of the 65th Regiment Illinois Infantry
for three years and was mustered in as a private on 30 June 1862.

5.  On 31 August 1862, the FSM was stationed at Martinsburg, Virginia.
Records show that the FSM was captured at Harper's Ferry, Virginia on 15
September 1862.  The date of release was not shown in the available
records.

6.  A War Department document, dated 6 June 1879, shows the FSM was absent
without leave during the months of November and December 1862 and was
listed as "deserter" on 6 January 1863.  This form further shows the FSM
was discharged from the service on 24 December 1878 by reason of desertion.
 The form also shows that the "Company Books" were not on file with the
Adjutant General's Office and that the records of the office did not show
any evidence of the disability claimed.  The form was validated by the
Commissioner of Pensions.

7.  The FSM's records contain a complete packet for request of a pension.
This packet shows that the FSM requested to receive a pension for honorable
service during the period 1 October 1861 through 26 March 1862.  Department
of the Interior, Pension Office informed the FSM that he was required to
inform the Pension Office of the State to which Captain Thomas Damron's
Independent Volunteers belonged.

8.  The FSM's records contain a ""A" Declaration for Original Invalid
Pension "A"" form dated 15 August 1878.  This form shows that the FSM
claimed that in August 1862 in Martinsburg, Virginia, he contracted
erysipelas which spread to his eyes.  The FSM continued that during the
month of August 1862, he was treated at a hospital in Martinsburg,
Virginia.  The FSM stated that he was in Captain Thomas Damron's
Independent Company during the period 1 October 1861 through 26 March 1862.
 The FSM argued that he was in good health at the time that he enlisted and
that he was completely disabled when he left the service.



9.  The FSM's records contain an "Examining Surgeon's Certificate", dated
25 June 1879.  This form shows that the examining surgeon found that the
FSM was incapacitated by "disease of the eyes" and that it was his opinion
that the disability was originated while the FSM was in the service.

10.  A Department of the Interior, Pension Office Form Number 58, dated
23 June 1880, references the FSM's Invalid Claim for a pension.  This form
stated that the FSM needed to provide affidavits from the FSM's company or
regiment which state when, where and the circumstances under which the
erysipelas resulting partial blindness occurred, an affidavit from the
surgeon or assistant surgeon of the FSM's regiment that treated him for
erysipelas, and the best obtainable testimony showing the FSM's condition
prior to enlistment.

11.  War Department Surgeon General's Office (Unnamed Formed), dated 3
April 1884, showed that a "Dr. Sprigs" was on duty at the hospital in
Martinsburg, Virginia and that he treated the FSM.  This form did not
specify the medical condition diagnosed or treatment the FSM received.

12.  War Department Surgeon General's Office (Unnamed Formed), dated,
24 April 1884, stated that there was no record of service of a Medical
Officer named "Sprigs" on duty at Martinsburg West Virginia at the time.
This form continued that the records of Martinsburg, West Virginia, prior
to 1863; were not on file.

13.  On 15 February 1886, the FSM appealed to the Pension Office for
removal of the charge of desertion from his discharge and upgrade of his
discharge to an honorable discharge.

14.  War Department, Adjutant's General Office document, dated 15 February
1887, shows that the FSM's request for removal of the charge of desertion
from his discharge and upgrade of his discharge to an honorable discharge
was denied.

15.  The FSM's records contain a "Declaration for Invalid Pension", dated
7 October 1891.  This form shows that at the time of preparation the FSM
was 76 years old and was unable to earn support by manual labor because of
defective eyesight and being nearly blind.




16.  The FSM's records contain an "ORIGINAL INVALID PENSION" Form.  This
Form shows that the original pension claim was submitted by the FSM on
14 March 1888 and was rejected on 31 March 1888.  This form shows that the
basis for the pension claim was that, due to cold and exposure, he
contracted erysipelas and could not see to work.  The specific reason for
the rejection was the charge of desertion and the refusal of the Adjutant
General's Office to remove the charge.

17.  The FSM's records do not contain a separation of discharge document.

18.  On 16 March 1903, the FSM's widow applied for a Widow's Pension.  The
widow's request was rejected on 28 April 1903 because the FSM was
discharged for desertion and was not honorably separated from his last
period of service.

19.  The applicant provided a list of descendants of the FSM and brief
history the FSM's military service.

20.  A resource of historical data, reveals that beginning in 1861, the
U.S. government generously attended to the need of its Soldiers and sailors
or their dependents.  Because the Federal government did not implement
conscription until 1863, the first Civil War benefits in many ways were an
attempt to induce men to volunteer.  Although altered somewhat over the
years, the 1862 statute remained the foundation of the Federal pension
system until the 1890's.  It stipulated that only those Soldiers whose
disability was incurred as a direct consequence of military duty or
developed after combat from causes which could be directly traced to
injuries received or diseases contracted while in military service could
collect pension benefits.  The amount of each pension depended on the
veteran's military rank and level of disability.  Pensions given to widows,
orphans, and other dependents of deceased Soldiers were always figured at
the rate of total disability according to the military rank of their
deceased husband or father.  By 1873 widows could also receive extra
benefits for each dependent child in their care.

21.  In 1890 the most notable revision in the federal pension law occurred;
the Dependent Pension Act.  The Dependent Pension Act, 1890, provided a
pension to any veteran with over 90 days service and an honorable discharge
if he ever became disabled for any reason.





DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM's records should be corrected to
show he was honorably discharged because he contracted erysipelas and was
told by a doctor to go home.

2.  Evidence of record shows that the FSM voluntarily joined Damron's
Independent Company, Virginia Volunteers and served during the period
1 October 1861 through 26 March 1862.  There is no evidence, and the
applicant has not provided sufficient evidence, showing that the FSM was
honorably discharged at the termination of his affiliation with Damron's
Independent Company, Virginia Volunteers.

3.  Records clearly show that the FSM contracted erysipelas and as a result
was unable to perform manual labor.  However, there is no evidence that an
authorized military representative advised the applicant to leave the 65th
Illinois Infantry and return to his home.

4.  Records further show that upon his request for a disability pension,
the FSM was notified that he must provide affidavits which show where he
served and during what time period he served.  These forms specifically
directed the FSM to provide records to verify any service with Damron's
Independent Company, Virginia Volunteers.

5.  The FSM was absent without leave during the months of November and
December 1862 and was listed a "deserter" on 6 January 1863.  As a result
the FSM was discharged from the service on 24 December 1878 by reason of
desertion.

6.  The FSM applied for a pension and was rejected based on the type of
discharge that he received.  Records further show that he appealed the
decision to deny his pension and again was rejected.  Additionally, records
show that the FSM's widow applied for a widow's pension and was also denied
based on the type of discharge that the FSM received.  In accordance with
the Dependent Pension Act of 1890, the FSM's discharge for desertion
disqualifies him for receipt of a pension.

7.  Although, the applicant claims that the FSM's service should be
upgraded to show that he was honorably discharged, the FSM sought relief
through the appropriate channels at that time and the Adjutant General
elected not to upgrade the FSM's discharge.
8.  There is no evidence, and the applicant has not provided sufficient
evidence, to show the FSM's discharge was unjust or in error.  Absent
evidence to show that the discharge was not properly executed, the FSM's
discharge for desertion is correct as currently constituted.

9.  Records show the FSM should have discovered the alleged error or
injustice now under consideration on 24 December 1878, the date of his
discharge.  However, the ABCMR was not established until 2 January 1947.
As a result, the time for the FSM to file a request for correction of any
error or injustice expired on 1 January 1950.  The FSM or his heirs did not
file within the 3-year statute of limitations and has not provided a
compelling explanation or evidence to show that it would be in the interest
of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JEV___  _BJE____  _DLL_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                     __James E. Vick__
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050013534                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060719                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |NC                                      |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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