IN THE CASE OF:
BOARD DATE: 16 July 2013
DOCKET NUMBER: AR20120022536
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, the great, great, grandson of a former service member (FSM), requests the correction of his great, great, grandfather's records to show he was reported as deceased vice a deserter and being absent without leave (AWOL) from his unit.
2. The applicant states his great, great, grandfather enlisted in the Union Army on 21 September 1863 as a private (PVT) in Company C, 63rd Regiment, NY Infantry. He was due back to his unit from leave on 17 January 1864. He had been buried in Holy Cross Cemetery, Brooklyn, NY, on 13 January 1864. By the date of his death, he had been promoted from a PVT to a sergeant (SGT). This leads him to believe that his great, great, grandfather was a good Soldier and he deserves to have his record corrected.
3. The applicant provides a unit status document, two letters, a birth certificate, a baptismal certificate, and two death certificates.
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. A review of the NY State Military Museum's online database contains a unit roster for the 63rd Regiment, NY Infantry. This roster shows the FSM was a Soldier in the Union Army and he enlisted in the 63rd Regiment on 8 July 1863 in Brooklyn, NY. On 21 September 1863, Company C of the 63rd Regiment was established and the FSM was assigned to Company C on that date.
3. This unit roster also shows the FSM was promoted to SGT on an unknown date and that he deserted on expiration of his furlough on 16 January 1864 in Brooklyn, NY.
4. The applicant provides a unit status document that shows the FSM's name is listed as follows on a Company C, 63rd Regiment, NY Infantry:
* Company Morning Report for 8 January 1864, with the remarks section annotated as "absent, on furlough to the 16th"
* Company Muster Roll report for January and February 1864 with the remarks section annotated as "deserted from camp at Stevensburg, VA, 17 January 1864; U.S. bounty received $25.00"
* Regimental Return report for January 1864 with the remarks section annotated as "AWOL since 18 January 1864"
* Regimental Return report for February 1864, with the gain or loss section annotated as "loss" with the date of 17 June (i.e., January) 1864, and the place as Brooklyn, NY
5. The applicant also provides a letter, dated 29 November 2010, from Catholic Cemeteries, 80-01 Metropolitan Avenue, Middle Village, NY, wherein the officer supervisor verified that the FSM was interred on 13 January 1864, at Holy Cross Cemetery. The letter shows the address for Holy Cross Cemetery as 3620 Tilden Avenue, Brooklyn, NY.
6. On 1 July 2013, a representative of Holy Cross Cemetery, Brooklyn, NY, telephonically verified that the FSM was buried at Holy Cross Cemetery on 13 January 1864.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record confirms the FSM was in a leave status from his assigned unit on 8 January 1864 and his leave ended on 16 January 1864. When he did not return to his unit on 17 January 1864, he was listed as a deserter on the Company Muster Roll report for January and February 1864. He was also listed as being AWOL since 18 January 1864 on the unit Regimental Return report for January 1864.
2. The applicant has provided evidence that shows the FSM was buried on 13 January 1864 in a cemetery in Brooklyn, NY. It is reasonable to presume that the FSM was in Brooklyn, NY on leave when he died and was buried. It is also reasonable to presume that his unit was never notified of his death or burial and, therefore, he was erroneously listed as a deserter and as being AWOL when he did not return from his leave on 17 January 1864.
3. In view of the foregoing, it would be appropriate to correct the FSM's duty status to reflect he was a loss to his unit due to his death while on leave in Brooklyn, NY, and not due to his being a deserter or AWOL on 17 January 1864.
BOARD VOTE:
____X____ ____X____ ___X_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that an appropriate document should be produced to correct the FSM's duty status to
show he was a loss to Company C, 63rd Regiment, NY Infantry, on 17 January 1864 due to his death while on leave in Brooklyn, NY.
_______ _ _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) AR20120022536
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