IN THE CASE OF:	  

		BOARD DATE:	  22 December 2011

		DOCKET NUMBER:  AR20110018701 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that records of her great-grand uncle, a deceased former service member (FSM), be corrected to remove the charge of desertion and to upgrade his dishonorable discharge to an honorable discharge.

2.  The applicant states, in effect, that it is questionable the FSM was ever a member of the 1st Regiment, New York Marine Artillery; regardless, he did not desert.  The FSM and others were supposed to be assigned to the gunboat Sentinel and were ordered to an abandoned warehouse to build an engine.  After a time with no supervision, weapons, food, money, or uniforms, the FSM and others journeyed to find out what their status was.  The applicant further states the FSM did not know he had been branded a deserter until his non-service connected disability pension was terminated in 1896.  From 1896 until his death in 1917, the FSM never changed his explanation of the events which led him from North Carolina to Washington D.C. and later to his family in New York.

3.  The applicant provides records of relationship, timely filing, military service, extracts from the Citizens Committee of Chicago, newspaper accounts, Journals of the House of Representatives and Senate of the Twenty-Third General Assembly of the State of Illinois, documents from the FSM’s pension file, affidavits, petitions and personal biographies.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  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.

3.  The evidence shows the FSM was born on 19 August 1835.  At the age of twenty-seven, he voluntarily enlisted on 28 August 1862 in Chicago, Illinois for a period of three years.  The FSM was mustered into Company K, 1st Marine Artillery in the grade of private on 8 September 1862.

4.  An undated extract from the FSM’s military record lists him as a deserter in 1862.  The day and month of desertion is blank and his grade at the time of desertion is recorded as private.  The remarks section of this document states, “deserted from gunboat “Sentinel” at New Berne, North Carolina.”

5.  The FSM’s military record includes an undated document which shows on    21 March 1864, he enlisted for a period of three years in New York City and was mustered into Company D, 15th Engineer in the grade of private.  The form also shows he left the organization on 2 July 1865 in the grade of corporal.

6.  His record includes a Declaration for Invalid Pension subscribed before a notary republic on 9 November 1892.  In this document, the FSM stated that he had not served in the Army, Navy or Marine Corps of the United States, otherwise than as above stated, except, “as in the Marine Artillery Volunteers which was not an authorized command and was disbanded by order of Secretary of War.”

7.  In a general affidavit in the matter of the FSM’s claim for invalid pension, dated 19 May 1893, the FSM stated that in 1871, he went to Fiji and returned in September 1892.

8.  The FSM’s record contains documentation which shows he received a disability pension at the rate and period of six dollars a month on 8 June 1894, for his “partial inability to earn a support by manual labor.”  The pension was issued on 26 April 1895 and mailed on 3 May 1895.  

9.  On 5 October 1903, in response to a Department of the Interior, Bureau of Pensions letter, dated 21 September 1903, which informed the FSM that War Department records showed he deserted from Company K, 1st New York Marine Artillery, the FSM stated before a notary republic that:

* Upon reaching New Berne, N.C., the officers who travelled with them left and went back to New York.  After some time, one night the FSM was told to go with some men to Washington to find out who and what they were.  So he went, “on those conditions.”

* Within a couple of days the FSM and others were taken prisoner and sent  to Virginia for approximately two months.  The FSM was paroled and sent to Camp Parole in Maryland and later to the Navy Yard in Washington and later still to the Soldiers Rest.

* While at the Soldiers Rest, the officer in charge could not find the company the FSM belonged to and gave him a note to see General Martindale.  The FSM then spoke with Mr. Stanton, the Secretary of War, and was told the Marine Artillery was to be disbanded and that he could not provide the FSM transportation back to New York because he was not in the service of the United States.

* He was sorry to say that it was impossible for him to provide evidence because he left the United States in 1869 and did not return until 1893 and anyone who would have known anything about his enlistment had died or gone away.  The FSM further stated, “I never enlisted in the 1st New York Marine Artillery, what I did enlist in was the Marine Artillery, but was not known as the 1st New York Marine Artillery and never even heard of the 1st New York Marine Artillery until 30 years afterwards.  The company I enlisted in was gotten up in Chicago.”

10.  On 10 December 1903, the FSM was dropped from the rolls of invalid pensioners upon the basis that evidence was accepted as legally and conclusively showing that he enlisted on 28 August 1862, in Company K,         1st New York Marine Artillery, deserted, and without having been discharged, enlisted in Company D, 15th New York Engineers.

11.  On 21 May 1905, the FSM requested removal of the charge of desertion standing on the records against his name.  On 11 July 1905, the Military Secretary, War Department stated the FSM’s application for removal of the charge of desertion from his record and for an honorable discharge from the service stood denied on the ground that the period of absence in desertion prior to his enlistment in Company D, 15th New York Engineers exceeded four months which fact bars the case from relief under the provisions of the act of Congress approved 2 March 1889, the only law now in force governing the subject of removal of charges of desertion from the records of enlisted men of the Army.

12.  On 28 December 1905, the FSM completed a Declaration for Restoration of Pension form.  On this form the FSM stated “that he had no intention of desertion; but one night was called and told to get into a boat, he supposed it was orders; after he left the vessel it was impossible for him to get back again.  The next morning he was taken prisoner and before he reached New York the company that he belonged to was disbanded.”  

13.  On 14 July 1910, the FSM once again submitted a general affidavit in support of restoration of his pension.  On this form the FSM reiterated his version of the events surrounding his alleged desertion to include his imprisonment, parole, and subsequent travel home after being told the Marine Artillery was to be disbanded and the men sent to their homes.  Further records show the FSM continued to petition the War Department for removal of the charge of desertion as late as 15 February 1917, to no avail.

14.  The applicant provides a list of descendants of the FSM and two large binders of historical research material which include but are not limited to newspaper accounts, unit histories, the FSM’s pension files, and affidavits. 

15.  The applicant also provides a 14-page copy of the Proceedings of Citizens of Chicago, in Relation to the So-Called “Marine Artillery,” dated 26 November 1862, which describes a special committee’s findings of alleged impositions and false representations in obtaining recruits for the Marine Artillery.  Included is an abstract of evidence which recounts several citizens’ experiences while being recruited by Jxxxx Hxxxxx for the Marine Artillery.  

16.  Also provided are the Journals of the House of Representatives and Senate of the Twenty-Third General Assembly of the State of Illinois dated 5 January 1863, which discuss the investigation of fraudulent enlistment practices during July and August 1862 for the Marine Artillery.  The committee found that a large number of the citizens of Illinois were recruited in Chicago and were later forced into the New York infantry service without their consent, under the name of the Marine Artillery.  Upon application by the Governor of Illinois, the men were ordered to be mustered out of service, but before the order reached the officer to execute the order, it appeared the men through design of other parties of authority were dispersed into squads and forced to be attached to various regiments of the infantry and artillery of New York.  Those men who refused were wrongfully treated and imprisoned.  Upon completion of the investigation of fraudulent enlistment practices the committee recommended and the Illinois House of Representatives and Senate affirmed that the men comprised in the so called “Marine Artillery” be immediately mustered out of the service and transported back to the city of Chicago, at the expense of the United States.  

17.  The applicant provides an extract from the biography of Fxxxx E. Exxxxxxx, a civil war veteran, who made reference to Captain Jxxxx Hxxxxx’s recruiting efforts to enroll individuals to join Burnside’s expedition in North Carolina for gunboat service.  He describes his personal account that he and the men were “hoodwinked in New York into this Marine Artillery business by a fraud scheme.”  

18.  The applicant provides an undated extract of Captain Jxxxx Hxxxxx’s military record which shows he was dismissed from service on 29 January 1863.  The Remarks section of the form states “with forfeiture of all pay and allowances which are or may become due to him, subject to the approval of the President of the U.S., for utter inefficiency and incompetency for the violation of his arrest and for the great deception practiced by him in enlisting men in Chicago, Illinois as shown by the report of the investigating committee, appointed at a public meeting in that place; Sentence approved by the President.  Special Order No.156, 1863.”

19.  Prisoner of war parole was a European military concept for dealing with large numbers of captured troops.  The term parole required the parolee would not take up arms again until formally exchanged for an enemy captive of equal rank.  During the Civil War, especially after a large battle, Union and Confederate prisoners of war parolees would wait near their commands until officially exchanged, at which time they would take up arms once again and participate in combat.  The system worked well initially, but as more and more Soldiers were captured and paroled, huge parole camps were established to hold the Soldiers who were waiting exchange.  This became very costly to both sides as exchanges were often held up for political or tactical reasons.  In addition, many Soldiers began to surrender on purpose in order to become a parolee, avoid combat, and perhaps, go home to await their exchange.     

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the FSM’s records should be corrected to remove the charge of desertion and to upgrade his dishonorable discharge to an honorable discharge.

2.  The evidence of record shows the FSM voluntarily enlisted and was mustered into Company K, 1st Marine Artillery and served from 8 September 1862 until deserting from the gunboat “Sentinel” later the same year.  On 21 March 1864, he enlisted for a period of three years and was mustered into Company D, 15th Engineer, in the grade of private.  On 2 July 1865, he was honorably discharged  in the grade of corporal.

3.  Evidence shows the events surrounding the recruitment of the Marine Artillery in Chicago by Captain Jxxxx Hxxxxx resulted in his dismissal from service for inefficiency, incompetency, and deceptive recruiting practices while enlisting men in Chicago, Illinois in 1862.  While there are no records available which definitively show the FSM was recruited by Captain Hxxxxx for the Marine Artillery, it is reasonable to presume based on the FSM’s place of enlistment, enlistment date, and the FSM’s notarized statements to Department of the Interior, Bureau of Pensions in 1903 and beyond, that he was indeed recruited in what Fxxxx Exxxxxxx described as a “fraud scheme.”   The FSM’s experience is consistent with what the Illinois state legislature found in that a large number of its citizens recruited in Chicago were later forced into the New York infantry service without their consent, under the name of the Marine Artillery.

4.  An extract from the Journals of the House of Representatives and Senate of the Twenty-Third General Assembly of the State of Illinois dated 5 January 1863, stated the men who refused to be attached to various regiments of the infantry and artillery of New York were wrongfully treated and imprisoned.  Approximately thirty years later when he was notified by the Bureau of Pensions of the desertion charge, the FSM repeatedly sought relief through the appropriate channels of the time and at no time did his recollection of the events which led to his discharge waiver.  The FSM’s assertion that he had no intention of deserting and without officers present, was one night called upon and told to get into a boat, and believing it was orders, went with the others only to later be taken prisoner and released is plausible.  

5.  Due to the passage of time and lack of documentation providing the specific facts and circumstances which led to the FSM’s charge of desertion and issuance of a dishonorable discharge there is insufficient evidence on which to base a determination as to their validity.  However, taking into account the FSM’s subsequent honorable service and his post-service accomplishments, it would be appropriate to amend the FSM’s records in the interest of equity by upgrading his discharge to fully honorable.






BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by upgrading his dishonorable discharge to an honorable discharge effective 20 March 1864.



      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110018701



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ABCMR Record of Proceedings (cont)                                         AR20110018701



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