IN THE CASE OF:	  

		BOARD DATE:	        29 January 2009

		DOCKET NUMBER:  AR20080016383 


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 item 7b (Home of Record at Time of Entry) on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states his home of record (HOR) should be an apartment at Shinkil 2-Dong, Young-Dong-Po-Gu, Seoul, Korea.  He states he enlisted in the Army in Seoul, Korea, and was told he could not use his Korean address as his HOR, even though he and his family lived there.  This caused him to be denied payment of an overseas housing allowance (OHA).

3.  The applicant provides:

	a.  a copy of his DD Form 214 which shows his HOR as being in Tampa, Florida;

	b.  a copy of his DA Form 31 (Request and Authority for Leave) which shows terminal leave – leave taken at separation – was taken at his Shinkil 2-Dong, Young-Dong-Po-Gu, Seoul, Korea, address;

	c.  a copy of a self-authored letter, dated 31 March 2008, regarding OHA;

	d.  a copy of a letter from the Defense Finance and Accounting Service (DFAS) to Honorable Mike Honda, Representative in Congress, dated 21 April 2008 which explains why the applicant is not entitled to OHA;
	e.  a copy of a self-authored letter, dated 28 April 2008, to Representative Honda which argues the DFAS denial of his OHA; and

	f.  a copy of a letter from DFAS to Representative Honda, dated 11 August 2008, which reiterates the information provided on 21 April 2008.

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 applicant is a Korean citizen.  On 24 July 1998 at Yongsan, Korea, he enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 8 years.  On 15 September 1998, he was discharged from the DEP and enlisted in the Regular Army for 4 years on 16 September 1998.

3.  The applicant’s enlistment documents show he was born on 24 May 1966 and:

	a.  his address at enlistment was an apartment at Hang-hwa 3-Dong, Gangso-Gu, Seoul, Korea;

	b.  he immigrated and entered the United States at Los Angeles, California, on 8 February 1986;

	c.  he was in possession of a Resident Alien Card issued by the U.S. Department of Justice – Immigration and Naturalization Service, and a Social Security Card; and

	d.  he listed his HOR as an apartment at 3712 West Wisconsin Avenue, Tampa, Florida, on his DD Form 1966/1 (Record of Military Processing – Armed Forces of the United States).

4.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria governing the enlistment of persons, with or without prior service, into the Regular Army, the U.S. Army Reserve, and the Army National Guard.  It provides in pertinent part that while there is a statutory requirement that only a U.S. Citizen may become a commissioned officer, certain non-citizens can enlist in the U.S. Armed Forces.  To be eligible to enlist, a non-citizen must have:  lawfully entered the United States on a permanent residence visa or have an Alien Registration Receipt Card (INS Form 1-551/I-551 "Green Card"); established a bona fide residence; and established a home of record in the United States.  Title 8, United States Code, section 1101, provides the term "lawfully admitted for permanent residence" means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his HOR on his DD Form 214 be corrected to show his Young-Dong-Po-Gu address in Seoul, Korea.

2.  By law and Army regulations, non-U.S. citizens, in order to enlist, must have lawfully entered the United States as a permanent resident alien and must have a bona fide HOR in the United States when enlisting.  The applicant was in possession of a "Green Card" and provided a U.S. address in Tampa, Florida, as his HOR.

3.  The HOR address shown on the applicant’s DD Form 214 is the same address he provided as his HOR upon his enlistment.  By law and regulation, he could not have provided his Young-Dong-Po-Gu foreign address as his HOR.

4.  Even if law and regulation made provisions for a foreign HOR, the applicant’s enlistment documents show that he did not live at the Young-Dong-Po-Gu address in July 1998; he lived at an address in Gangso-Gu, Seoul, Korea.

5.  Although the applicant did not seek back payment of OHA in his application to this Board, he did intimate that he was denied OHA because of the entry in item 7b of his DD Form 214.  The DFAS has already advised the applicant and his Representative in Congress that he is not entitled to OHA.  That information remains valid.

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


															XXX
      _________________________
                 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)                                         AR20080016383



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ABCMR Record of Proceedings (cont)                                         AR20080016383



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