MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           12 March 2002                  
	DOCKET NUMBER:   AR2001061545

	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. W. W. Osborn, Jr.  		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms. Gail J. Wire		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	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 opinions, if any).

APPLICANT REQUESTS:  That her ancestor, a Revolutionary War veteran, should have his records changed to remove the charge of desertion.  She states that he was denied a pension for his first period of service because of this charge, but he returned to reenlist seven more times.  She points out that his grave is marked with a Government headstone and questions, in effect, how he could be considered both an honored veteran and a deserter.  The applicant did not indicate a date of discovery of the alleged error or injustice nor provide any rationale as to why it would be in the interest of justice for the Board to consider this application.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The available records consist entirely of documents associated with the veteran’s application for a pension under the Act of Congress of 7 June 1832.

The pension application procedures apparently provided for an individual to appear in court and present affidavits as evidence in rebuttal of the information contained in their official records that were listed as an annex to the record brief but, in fact, are not available in this case.  The brief consists of a tabular summary of the individual’s record and a series of questions to be answered by the officials of the court. 

The summary of the veteran’s service shows that his first period of service commenced in August 1775 and lasted for 2 months.  

On 5 September 1832 the veteran presented a sworn statement to the effect that he entered the service on 7 August 1775 “…marched from there to Albany, was there two months and left that service….”  He went on to describe seven more enlistments totaling approximately 28 months.  Several other individuals, including a minister, offered affidavits attesting to the veteran’s character and veracity. 

The veteran described his first period of service in a 27 March 1838 affidavit offered “in explanation of his declaration & application for a pension under the Act of June 7, 1832: 1st. in reference to the charge of desertion:”  The veteran reported that he believed he had enlisted for five months, that he went with the unit to Albany and then, while with the lieutenant in-route to New York (apparently New York City), the lieutenant directed that the veteran remain at his home.  When the unit came back, the lieutenant informed the veteran that he need not rejoin the unit.
  
Title 10, U.S. Code, section 1552 originally provided that applications for correction of military records must be filed on or before 26 October 1961 or within 3 years after discovery of the alleged error or injustice, whichever was later.  

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered in 1836, the date the pension was denied.  The time for the Revolutionary War veteran or someone acting on his behalf to file a request for correction of any error or injustice expired on 26 October 1961.

The application is dated 4 August 2001 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.  Prior to reaching this determination the Board looked at the applicant's entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

_INW ___  ___GJW_  __RJW__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001061545	
SUFFIX		
RECON	 	
DATE BOARDED	20020312	
TYPE OF DISCHARGE	 	
DATE OF DISCHARGE	 	
DISCHARGE AUTHORITY	  . . . . .  	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	142.00	
2.		
3.		
4.		
5.		
6.