RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 September 2005
      DOCKET NUMBER:  AR20040011008


      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             |
|     |Mr. Robert J. McGowan             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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 that his records be corrected to show that he is
a veteran from the State of California.

2.  The applicant states he was, and is, a California resident.  He
registered for the Selective Service while working in Arkansas and entered
service from Arkansas, but he is a Californian.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 14 August 1959.  The application submitted in this case
is dated 27 October 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.  The applicant’s military records are not available to the Board for
review.  A fire destroyed approximately 18 million service members’ records
at the National Personnel Records Center in 1973.  It is believed that the
applicant’s records were lost or destroyed in that fire.  However, the
applicant's DD Form 214 is sufficient to conduct a fair and impartial
review of this case.

4.  The applicant's DD Form 214 shows:

      a.  He was born in Shirley, Arkansas on 7 January 1937.

      b.  He registered for the Selective Service at Local Board #73 in
Clinton, Arkansas.

      c.  He was inducted into the Army of the United States and entered on
active duty at Little Rock, Arkansas on 15 August 1957.
      d.  Upon entering on active duty, he declared his Home of Record as
XXXX, Crabtree Lane, Porterville, California (in Tulare County).

      e.  Upon his separation from active duty on 14 August 1959, he listed
his permanent civilian mailing address as XXXX Crabtree Lane, Porterville,
California.

5.  "Home of Record" is a term used by the military for purposes of
indicating the place recorded as the home of the individual when
commissioned, appointed, enlisted, inducted or ordered into a tour of
active duty.  The "HOR" remains the same for the uninterrupted period of
active duty.  Once designated, the HOR is difficult to change for the
benefit of the Soldier.  At the time of discharge from the service, the
military department will use the HOR to determine maximum travel and
transportation allowances.  A Soldier will not be paid
travel/transportation expenses to a point beyond the distance from the
place assigned (at the time of separation) to the HOR.

6.  "Legal residence" refers to a person's permanent domicile, as
distinguished from a temporary residence.“  Domicile is defined as that
place where a person has his or her fixed, permanent place of abode, to
which the person intends to return despite temporary residences elsewhere
or temporary absences.  Once established, a person’s legal residence, or
domicile, remains the same even when the person enters the Armed Forces and
lives in another state pursuant to military orders.  Because of the
protections provided under the Soldiers’ and Sailors’ Act of 1943, a
service member’s legal residence does not change until the member acts to
establish a new residence in the state in which assigned. Therefore, if a
member of the Armed Forces never acts to change his or her legal residence,
the member’s HOR and state of domicile will be the same.

DISCUSSION AND CONCLUSIONS:

1.  There is no error or injustice in this case.  The applicant's DD Form
214 clearly shows that he is a resident of the State of California,
domiciled at the time of his active military service in Porterville,
California.

2.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 August 1959; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 13 August 1962.  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

__sk____  __bje___  __rtd___  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.



                                        Stanley Kelley
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011008                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050901                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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