RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            08 APRIL 2004
      DOCKET NUMBER:   AR2003095462


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deborah L. Brantley           |     |Senior Analyst       |


  The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Gail J. Wire                  |     |Member               |
|     |Mr. William D. Powers             |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that item 6 (place of entry into
active duty) on his August 1989 separation document be corrected to show
Houston, Texas and not Ft. Douglas, Utah.

2.  The applicant states the information is adversely affecting his ability
to receive Texas Veteran Hazlewood Education Benefits.  He states that his
separation document indicates that he entered active duty at Ft. Douglas,
Utah.  However, he states he enlisted under the Delayed Entry/Enlistment
Program in Houston, Texas and only went to Utah so that his spouse could
reside with her parents while he attended basic training.  He states that
“after dropping” his spouse off at her parent’s home he went to Ft. Douglas
to process into the Army.

3.  The applicant states that he is a fifth generation Texan and maintained
Texas as his home of record, as well as a Texas driver’s license “all of my
time in the Army and even while I was at BYU [Brigham Young University].”
He states that he went to Utah after his separation from active duty to
attended BYU, “a private university that just happens to be in Utah.”

4.  He states that he has always lived in Texas and probably always will.

5.  The applicant provides a copy of his separation document, a statement
from the Texas Department of Motor Vehicles indicating that he had a valid
Texas driver’s license between February 1984 and February 1987 and between
July 2000 and February 2004.  He also submits a copy of his United States
Army Reserve enlistment contract under the Delayed Entry/Enlistment
Program.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error which occurred on
26 August 1989.  The application submitted in this case is dated 18 July
2003.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.





3.  Records available to the Board indicate that the applicant was born in
Houston, Texas, graduated from Galena Park High School in Galena Park,
Texas, and briefly attended the University of Utah between September and
December 1983 before returning to Texas where he attended North Harris
County Community College between January and March 1985.

4.  The applicant’s spouse was born in Salt Lake City, Utah.

5.  On 17 June 1985 the applicant executed an enlistment contract for
enlistment into the United States Army Reserve for a period of 8 years as
part of a Delayed Entry/Enlistment Program.  The contract was executed in
Houston, Texas and the applicant’s Home of Record at that time, was
recorded as Humble, Texas.

6.  On 27 August 1985, at the Salt Lake City Recruiting Battalion, located
in Ft. Douglas, Utah, the applicant requested discharge from the United
States Army Reserve for the purpose of enlisting in the Regular Army for a
period of 4 years.

7.  The applicant served on active duty until 26 August 1989 when he was
released from active duty at the conclusion of his enlistment contract.
Item 6 (place of entry into active duty) on his separation document
reflects “Ft. Douglas, UT.”  The version of the Department of Defense Form
214 (Certificate of Release or Discharge from Active Duty) in effect at the
time of the applicant’s August 1989 release from active duty did not
contain a separate block for Home of Record information.

8.  The applicant listed a Salt Lake City, Utah address as his mailing
address following separation.  On 27 August 1989, the day following his
release from active duty, the applicant executed an enlistment document to
enlist in the Utah Army National Guard.  His Home of Record on that
document is listed as the same Salt Lake City addressed recorded on his
August 1989 separation document.

9.  In January 1991 the applicant was ordered to active duty in support of
Operation Desert Shield/Desert Storm.  He was released from active duty on
18 June 1991.  His June 1991 separation document, which now contained
separate items for recording the place an individual entered into active
duty (item 7a) and the individual’s home of record (item 7b), indicates his
Home of Record as Provo, Utah, and the place he entered active duty as
American Fork, Utah, the location of his National Guard Unit.






10.  On 1 March 1993 the applicant was released from the Utah Army National
Guard and reassigned to the United States Army Reserve Control Group
(Reinforcement).  His 1993 Army National Guard separation document
indicated his mailing address after separation was in Lufkin, Texas.

11.  On 28 December 1993 the applicant was honorably discharged from the
United States Army Reserve.

12.  Army Regulation 635-5 establishes the policies and provisions for the
preparation of separation documents.  At the time of the applicant’s
September 1989 separation, the Department of Defense Form 214 provided for
a single entry (item 6) denoting the place that the individual entered
active duty.

13.  The Joint Federal Travel Regulation states that the place from which
an individual is called (or ordered) to active duty is the place of
acceptance in current enlistment, commission, or appointment of members of
the regular Services, or of members of the Reserve components when
enlisted, commissioned, or appointed for immediate active duty.  That same
publication defines an individual’s Home of Record as the place recorded as
the home of the individual when commissioned, appointed, enlisted,
inducted, or ordered into a tour of active duty.

14.  An interim change to Army Regulation 635-5 was published on 2 October
1989 implementing Department of Defense Instruction 1336.1 by providing a
revised Department of Defense Form 214 and the instructions for its
preparation. The interim change stated that the implementation date of the
new form was
1 January 1990.  The new form provided separate entries for the Home of
Record (item 7b) and the place of entry into active duty (item 7a).  The
applicant’s June 1991 separation document is an example of the revised
separation document.

15.  Information obtained from the Texas Department of Veterans Affairs
indicates that the Hazlewood Education Benefits referred to in the
applicant’s application is a benefit provided under the Texas Education
Code known as the “Hazlewood Act.”  It entitles wartime veterans of the
Spanish-American War through the Persian Gulf War, who were legal residents
of Texas at the time they entered military service, to “a waiver of tuition
and some fees at State-supported colleges and universities.”  The
information indicated that the veteran must provide official military
documentation to prove his/her eligibility for the Hazlewood Act exemption,
but not necessarily his Department of Defense Form





214.  It also states that a veteran whose point of entry was another state
can still qualify for Hazlewood Act benefits if he/she was a Texas resident
at the time, and must merely “prove to the college or university that
he/she was a Texas resident at the time of entry into military service.”

DISCUSSION AND CONCLUSIONS:

1.  While the applicant’s Home of Record at the time of his enlistment may
have been in Texas, he did in fact enter active duty from Ft. Douglas,
Utah.  Home of Record and place of entry on active duty were, and still
are, two separate issues as evidenced by the revised Department of Defense
Form 214 implemented in January 1990.

2.  The fact that the applicant may be experiencing difficulties in
obtaining state benefits does not serve as a basis to amend his separation
document.  The information on his August 1989 separation document is
correct.

3.  However, information obtained from the Texas Department of Veterans
Affairs does indicate that the applicant may have other avenues available
to him to prove his residency was Texas at the time of his enlistment,
including his original enlistment document, which reflects his Home of
Record and place of initial enlistment as Texas.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 August 1989; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
25 August 1992.  However, the applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RJW__  __GJW__  __WDP__  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            __Raymond J. Wagner____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003095462                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040408                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |