MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 October 2000                   
	DOCKET NUMBER:   AR2000036707

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

	Mr. Carl W. S. Chun		Director	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest W. Lutz Jr. 		Chairperson	
	Mr. Christopher J. Prosser 		Member	
	Ms. Tracey L. Pinson 		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  The great grandson of the former service member (FSM) requests, in essence, that the Board pardon (set aside) the conviction of his great grandfather by a court-martial during the Civil War on 29 September 1864.

APPLICANT STATES:  In effect, that his great grandfather was serving on his third enlistment when he was convicted by court-martial on 29 September 
1864 essentially of insubordination and drunkenness.  He was sentenced to 
2 years of hard labor with a 24 pound ball and 8 foot chain on his leg.  He served his sentence at Fort McHenry, Maryland, and was discharged by special orders on 29 June 1865.  The applicant submits an extensive record of service and biographic material on his great grandfather which will be summarized in the  case proceedings.  The applicant believes that his unit was a "thrown together” unit performing garrison type duties in Baltimore, and that the officer involved mishandled the situation by his personal involvement in the incident.  He also submits correspondence between the Office of the Judge Advocate General, Department of the Army and his Representative in Congress informing him that the applicant could request a Presidential Pardon as well as apply to this Board for pardoning the conviction.    

EVIDENCE OF RECORD:  The applicant's military records show:

That the FSM was a British subject, born on 9 October 1842 in Timsbury, Somerset, England.  He was a coal miner.  As a youth, he was sent to live with relatives in Wales, who then emigrated to the United States.  The applicant came with them and they settled in Pennsylvania.     

He first served with the 129th Pennsylvania Volunteers from 15 August 1862 to 18 May 1863 and participated in action in and around Fredricksburg and Chancellorsville, Virginia.  He had his nose "shot off" at Chancellorsville.  Then he served in the 39th Pennsylvania Volunteer Militia from 20 June to 
5 August 1863 and participated in the defense of the Columbia-Wrightsville Bridge (a vital crossing of the Susquehanna River between York and Lancaster, Pennsylvania).  He then enlisted in the 194th Pennsylvania Volunteer Militia, for 
100 days.  The unit was activated on or about 20 July 1864.  The unit was assigned to garrison-type duties in Baltimore, and the applicant claims that the unit was primarily made up of political appointees.  

On 21 September 1864, the FSM and two other soldiers in his unit were approached by a captain, their company commander, on the street in Baltimore.  The three soldiers were essentially drunk, and there is some indication that the officer also had been drinking.  The captain personally ordered the men to return to the barracks, and when at least one of them did not immediately respond, the captain drew his sword and attempted to force the one soldier to return to the barracks.  They wrestled each other to the ground.  That soldier then called to the FSM for help, and he responded, and may have kicked the captain in the head.  Once the situation was calmed down, after the intervention of the company executive officer, a lieutenant, all three soldiers were arrested.  The soldier who resisted the order was charged by the captain with violation of the 
9th Article of War (insubordination), "conduct to the predjudice of good order and military discipline" and drunkenness.  The FSM was charged with violation of the 9th Article of War (Insubordination) and drunkenness.  The third soldier was only charged with drunkenness.  All three pled not guilty to all the charged offenses.

On 29 September 1864, the three were each tried by court-martial.  They were present at the trials.  The company commander, the first sergeant and several soldiers in the unit who had witnessed the incident were called to testify against the three soldiers being tried.  The soldiers being tried were permitted to question the witnesses, and the FSM called one witness in his own defense.  The FSM and the soldier who resisted the order were found guilty and both were sentenced to confinement at hard labor for 2 years with a 24 pound ball and
8 foot chain on their leg, and then to be dishonorably discharged.  The third soldier was only sentenced to 15 days confinement and to forfeit $10.00 pay.  The sentences were all approved on 6 October 1864 by a brigadier general, presumably the 194th's commander.  The FSM and his co-defendant were confined at Fort McHenry, in Baltimore harbor and the third soldier was confined at an unspecified location in Baltimore.    

On 21 December 1864, presumably after he returned to civilian life, the former captain wrote a letter to President Lincoln, which was countersigned by 
120 Pennsylvanians asking for pardon for the FSM.  President Lincoln apparently referred to the Secretary of War, where it was reviewed by the Judge Advocate General, who recommended disapproval.   No further action appears to have been taken.  

However, on 27 May 1865, the Secretary of War ordered, on behalf of the President (Andrew Johnson), that "in all cases of sentences by military tribunals of imprisonment during the war the sentence be remitted and that the prisoners be discharged."  Accordingly, on 22 June 1865, he was released from confinement and was ordered dishonorably discharged, which he was on 
29 June 1865.  He returned to his home in the coal mine area of Pennsylvania, where he was naturalized on 8 October 1866.  He and his wife raised 11 children to maturity.  He died on 10 January 1896 in Maiseville, Pennsylvania.    

The Board is precluded by Federal statute (Title 10, United States Code, Section 1552f) from setting aside, modifying or removing a record of court-martial tried under the Uniform Code of Military Justice (UCMJ).  The Board may only correct the record to accurately reflect actions taken by reviewing officials or to modify sentences for the purpose of clemency.  However, since the FSM's case was tried prior to the implementation of the UCMJ, the provisions of this law do not apply.  Notwithstanding this, the Board's powers are still limited.  Essentially the Board can recommend Secretarial action only where a specification fails to state an offense, conviction was for an uncharged offense, or the court lacked jurisdiction.  This latter course of action may arise from a denial of due process in the proceedings amounting to fundamental unfairness.  The ABCMR is not a form of appellate review available to consider allegations of factual deficiency or other legal error.  

Further, the Board's authority to direct removal of a conviction from military records, as opposed to invalidation of the conviction, is also severely limited.  Where the Board determines there is error or injustice, but lacks authority to invalidate the conviction, the Board may exercise clemency.  This could mean that a discharge characterization by court-martial could be upgraded from a discharge under other than honorable conditions to a general discharge under honorable conditions.  Only in cases where the punishment results in unfair consequences, such as unwarranted loss of retirement pay, could the Board recommend removal of the record of conviction.   

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant, in this case, has failed to submit evidence that would satisfy the aforementioned requirement that his great grandfather's conviction by a court-martial was unfair or unjust. 

2.  The Board concludes that the FSM was properly charged with offenses triable by court-martial, that a proper court-martial was held, and he was convicted by the court-martial, contrary to his pleas.  

3.  Nothing has been presented that the specifications the FSM was charged with were not triable offenses, that he was convicted of an uncharged offense, that the court-martial lacked jurisdiction or was their any evidence of fundamental unfairness in the trial.   Further, the sentence does not appear to be excessive for the offenses charged, or that any basis for clemency has been established.

4.  The FSM's prior record of honorable service, his status as a British subject and his apparent good post service adjustment are commendable.  However, these factors do not overcome the seriousness of the offenses with which he was tried and convicted.   

5.  In  view of the foregoing, there is no basis for granting the applicant's request to set aside his great grandfather's conviction by court-martial.    

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice in his great grandfather's case.  

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

_ewl____  __cjp____  __tlp____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000036707	
SUFFIX		
RECON		
DATE BOARDED	20001019	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	18650629	
DISCHARGE AUTHORITY	Departmental Order	
DISCHARGE REASON	Conviction by Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	105.00	
2.		
3.		
4.		
5.		
6.