MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           28 March 2002                  
	DOCKET NUMBER:   AR2001062134

	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:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Thomas Lanyi		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 his ancestor, a Revolutionary War veteran, should have his records changed to remove the charge of desertion.  He states that the Revolutionary War veteran was listed as a deserter on 13 March 1783 but that the family found a discharge paper dated 19 March 1783 and sent it to the Daughters of the American Revolution.  He submits several documents to support the request.  The applicant shows 22 March 2001 as a date of discovery of the alleged error or injustice and lists ”Revolutionary War” as the reason 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 provided by the applicant from the South Carolina Archives. 

The only available military document is a Company Muster Roll, 2d Company South Carolina Continental Troops dated 19 March 1783 showing that the Revolutionary War veteran was discharged. 

The Revolutionary War veteran executed a 25 March 1782 affidavit conveying his right to an enlistment incentive to a lieutenant. 

A civil record extract entitled “Stub Entries of Incidents Issued in Payment Claims Against South Carolina growing out of the Revolution” shows that on 1 October 1784 the Revolutionary War veteran was paid £94 Sterling in pay and bounty for the period beginning on 1 April 1782.

The Revolutionary War veteran executed a 28 March [year unknown] affidavit concerning his claim for a pension under an Act of Congress in 1832.  He swore that he had received a discharge at the end of his first 10-month enlistment but had since lost the document.  Two other individuals, one a minister, offered affidavits in his behalf.  

An undated letter from the Comptroller General of South Carolina to the pension office in Washington supported the Revolutionary War veteran’s application and stated, “There is no doubt of his service.”

An extract identified as coming from the Roster of South Carolina Patriots in the American Revolution lists the Revolutionary War veteran as a participant in several battles and skirmishes. 

A 14 February 2000 letter from the author of the Roster of South Carolina Patriots in the American Revolution states that he believes that the term “deserter” was not used in the modern sense.  Rather it meant simply that a man had simply found it necessary to go home to plant or harvest or perhaps for the birth of a child.  An individual was marked as a deserter so that he would not be paid for the time he was gone.  He does not believe that the Revolutionary War veteran was a deserter in the modern sense.  He noted that when an individual had changed sides the entry “gone over to the enemy” was used.  

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 1834, the approximate 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 5 September 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

__FNE __  ___LE___  __TL____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001061545	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020328	
TYPE OF DISCHARGE	 	
DATE OF DISCHARGE	 	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	142.00	
2.		
3.		
4.		
5.		
6.