PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            l7 March l999          
	DOCKET NUMBER:   AC98-12269
			             AR1998000708

	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. Loren G. Harrell		Director	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Mr. James P. Steuve		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant, the great grandson of the former service member (FSM) requests, in essence, that his great grandfather’s military records be corrected to show that  the FSM’s character of service was honorable. 

3.  The applicant submits various documentation from the Archives of the United States and the Bureau of Pensions Office, Department of the Interior, that show that his great grandfather’s discharge was considered to be less than honorable due to a minority enlistment.  

4.  The Archivist of the United States has provided muster records and other documents showing that the FSM enlisted in the United States Army on 
23 August 1876 for a period of 5 years at Chicago, Illinois.  The FSM certified that his age was 21 years of age.  However, other documents in the case show that he was actually born on 22 October 1855.  Thus he was only 20 years, 
10 months and 1 day old at the time of his enlistment.

5.  The FSM was assigned to Company B., 4th Cavalry (Regiment), and held the rank of private.  It would appear from the documents with the file that he participated in some actions, totaling at least 30 days, against the Northern Cheyenne and Sioux Indians in Wyoming and Nebraska during his first year of service.  

6.  In early July 1877, the applicant’s family, with the assistance of local judges, citizens and others in their community, communicated with the Secretary of War petitioning him to discharge the FSM. The family claimed that the FSM was still a minor at the time of enlistment .  Also, his mother was taken to her sick bed (supported by an attending doctor’s statement) because of the absence of her son. 

7.  On 19 July 1877, Department of the Army Special Orders No. 157, paragraph 
1 was issued, directing the separation of the FSM by order of the Secretary of War, by reason of having enlisted under “false pretences”  He was entitled to no pay or allowances and final statements (apparently referring to discharge documents) would not be issued.  Other documents with the file show that he was ordered held at his post (Fort Elliott, Texas) until the father could travel to the post in order that the son be returned to his home.  

8.  On 12 April 1929, the FSM made application for Survivor’s Pension-Indian Wars.  His request was sent to the Office of the Adjutant General (TAGO), War Department.  That agency responded on May 29, 1929, that the FSM’s records had been reviewed.  It was related that his character of service was good, but that he had been discharged because of his family’s claim that he enlisted as a minor.  The TAGO stated that due to the nature of his discharge, that the characterization of service would be “not honorable.”  His claim for a pension was subsequently denied because his service was not classified as honorable.  

9.  A further inquiry by the son of the FSM through his Representative in Congress in October 1939 (the FSM was ill at the time and was 84 years old), resulted in a reaffirmation of the prior denial of entitlement to a pension as determined by the Office of Veteran Claims in the Veterans Administration.

10.  Under current enlistment standards, the enlistment age is age 18 or age 
17 with parental consent.  Soldier’s found to have erroneously enlisted, under age 17 will be released from the custody and control of the Army because of a void enlistment.  Soldiers under 18, whose family object to the enlistment and provide proof of age within the first 90 days of enlistment, and the nature of service has been satisfactory, will be discharged by reason of minority.  The characterization of service will be an entry level separation (essentially, no characterization of service is awarded).  

11.  Army Regulation 635-200, at section II, paragraph 5-3, provides that the Secretary of the Army may direct the separation of soldiers from the Army for the convenience of the Government.  Either an honorable or a general discharge can be issued.  An entry level separation may also be approved when the soldier has less than 6 months active service.

CONCLUSIONS:

1.  The Board concludes that the discharge process was proper at the time the FSM was separated.  He had falsified his age (by 2 months) at the time of his enlistment.  

2.  However, the FSM served well for almost a year, to include participation in campaigns against the Indian Nations.  Most of this service would have been after he reached his majority on 22 October 1876.

3.  It was not until July of 1877, when his family raised the issue, that the discharge action was initiated by Departmental officials.  

4.  The Board concludes, however, that an injustice has occurred in this case.  The Board notes that most of the FSM’s satisfactory service, to include participation in campaigns against the Indian Nations, occurred after he reached age 21.  Therefore, the Board concludes that a “not honorable” characterization of service is unfair and not descriptive of his total period of service.  Moreover, his service should have been reclassified as honorable, by direction of the Secretary of War in 1929.  

5.  Since the Secretary of the Army is the successor to the Secretary of War, and in view of the foregoing, it would be appropriate to correct the FSM’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing:

a.  that the FSM’s characterization of service issued on 23 August 1877 was honorable; and 

b.  that no change be made in the reason for his discharge.   

2.  That upon completion of the above action, a copy of these proceedings and the corrective action directed be forwarded to the Archivist of the United States for filing with the FSM’s records on file with that office.   

BOARD VOTE:  

__TSK___  __JPS   _  _OWT__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC98-12269/AR1998000708	
SUFFIX		
RECON		
DATE BOARDED	19990317	
TYPE OF DISCHARGE	NOT HONORABLE	
DATE OF DISCHARGE	18770727	
DISCHARGE AUTHORITY	DASO #157, 18770719	
DISCHARGE REASON	A06.00	
BOARD DECISION	GRANT	
REVIEW AUTHORITY	DASA	
ISSUES         1.	144.00	
2.	A01.13	
3.	A92.00	
4.	A94.06	
5.		
6.