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ARMY | BCMR | CY2004 | 040004417C070208
Original file (040004417C070208.doc) Auto-classification: Denied



                            RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 APRIL 2005
      DOCKET NUMBER:  AR20040004417


      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 Wagner                |     |Chairperson          |
|     |Mr. Larry Bergquist               |     |Member               |
|     |Mr. Larry Olson                   |     |Member               |

      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 June 1981 separation document be corrected to show
Jefferson, Texas, and not Shreveport, Louisiana.

2.  The applicant states, in effect, that the information is adversely
affecting his ability to receive benefits under the State of Texas
Hazelwood Act.  He states his home of record at the time of his entry on
active duty was Texas as confirmed by his High School Diploma.

3.  The applicant provides a copy of his diploma from Jefferson High
School, Jefferson, Texas in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 4 June 1981.  The application submitted in this case is
dated
13 July 2004.

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 limitations 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
Dallas, Texas in February 1960, and graduated from Jefferson High School in
Jefferson, Texas in May 1978.  His parents resided in Dallas, Texas at the
time of his enlistment, but the applicant indicated that his grandmother
was his legal guardian and listed a post office box in Jefferson, Texas as
his mailing address.

4.  On 6 February 1978 the applicant executed an enlistment contract for
enlistment into the United States Army Reserve for a period of 6 years as
part of a Delayed Entry/Enlistment Program.  The contract was executed at
the Armed Forces Examining and Entrance Station (AFEES) in Shreveport,
Louisiana.  The applicant’s Home of Record on the enlistment contract was
recorded as Jefferson, Texas.

5.  On 5 June 1978, at the Shreveport, Louisiana AFEES, the applicant
requested discharge from the United States Army Reserve for the purpose of
enlisting in the Regular Army for a period of 3 years.

6.  The applicant served on active duty until 4 June 1981 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 “Shreveport, Louisiana.”  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 June 1981 release from active duty did not
contain a separate block for Home of Record information.

7.  The applicant listed a Dallas, Texas address as his mailing address
following separation.

8.  Army Regulation 635-5 establishes the policies and provisions for the
preparation of separation documents.  At the time of the applicant’s June
1981 separation, the Department of Defense Form 214 provided for a single
entry (item 6) denoting the place that the individual entered active duty.

9.  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.

10.  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).

11.  Information obtained from the Texas Department of Veterans Affairs
indicates that the “State of Texas Hazelwood [sic] Act” 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 Shreveport,
Louisiana.  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 after the applicant’s separation from active
duty.

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 June 1981 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 as Texas.  A copy of that enlistment document will be provided to
the applicant as part of these proceedings.

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 4 June 1981; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
3 June 1984.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RW___  __LB____  ___LO __  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 Wagner______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040004417                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050419                                |
|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.                      |                                        |


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