IN THE CASE OF:	  

		BOARD DATE:  5 February 2014

		DOCKET NUMBER:  AR20130018523 


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 correction of records pertaining to the Revolutionary War service of her 5th great grandfather, a deceased former service member (FSM), to remove entries indicating he was a deserter and to show he was honorably discharged. 

2.  She states the FSM enlisted in the New York 5th Regiment for a 3-year term on 25 December 1776.  He was present for all roll calls.  In December 1779, he was listed as being "on furlough."  A January 1780 roll call shows he was listed as a deserter.  She states that in her research she found it was quite common for a Soldier to simply leave and go home when his term was up.  She also discovered that 25 percent of men deserted for reasons such as horrible living conditions, families needing them, or worse – treason.  The FSM did none of these things, but served to allow our country to be free and independent.  The Army knew where he was, and he wasn't hiding.  He married and raised a family for 30 years in Ira, VT, after his service.

3.  She provides:

* Genealogy Worksheet
* Certificate of Birth Registration and other documents verifying her relationship to the FSM
* excerpts from a family history and genealogies
* records for the 5th New York Regiment pertaining to the FSM 


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 complete military service records are not available for review.  This case is being considered using the documents provided by the applicant.  

3.  The applicant provides records for the 5th New York Regiment pertaining to the FSM's name appearing on a Company Muster Roll.  These records show:

* on 25 December 1976, he was appointed for a 3-year term of enlistment 
* in March 1779, he reenlisted (term of reenlistment not shown)
* a remark entered on the Company Muster Roll for the months of October and November 1779 indicating he was on furlough in "Dutches County"
* a remark entered on the Company Muster Roll for the month of December 1779 that indicates "Deserted"
* a remark entered on the Company Muster Roll for the months of January and February 1780 states he had been on furlough and had since deserted

4.  The applicant provides a document showing the FSM's name appeared on a Description Roll of Deserters of the 5th New York Regiment dated 22 August 1782.  This document shows the FSM deserted on 1 December 1780.

DISCUSSION AND CONCLUSIONS:

1.  It appears the FSM completed his initial term of enlistment; however, the available records indicate he reenlisted in March 1779.  Although the term of his reenlistment is not shown, it is reasonable to presume that he was obligated to return following his furlough in October and November of 1779.  The available records indicate he did not return, and as a result, he was listed as a deserter in December 1779.  In August 1782, he was still listed as a deserter.  
2.  There is no documentary evidence indicating an error in the entries listing him as a deserter, nor is there documentary evidence indicating that he returned to military service and was discharged by an appropriate authority.  In the absence of such evidence, there is no basis for granting the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  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)                                         AR20130018523



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130018523



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1