IN THE CASE OF:	  

		BOARD DATE:	        06 JANUARY 2009

		DOCKET NUMBER:  AR20080017695 


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 that his home of record (HOR) on his DD Form 214 be changed from the State of Utah to the State of South Dakota. 

2.  The applicant states, in effect, that he is a South Dakota resident who was in a Job Corps program and was sent to Utah by the State of South Dakota.  He goes on to state that had he not enlisted in the Army, he would have returned to his home State of South Dakota and he is now encountering difficulty in qualifying for certain South Dakota benefits because of the HOR entry on his DD Form 214.

3.  The applicant provides no additional documents with his application.

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 an American Indian born in Rosebud, South Dakota on 2 June 1980.  

3.  On 19 March 1999, while residing in Clearfield, Utah, the applicant enlisted in the United States Army Reserve (USAR) for a period of 6 years under the Delayed Entry program.  At the time of his enlistment processing, he completed a DD Form 1966-1 which indicated that his HOR was in Wagner, South Dakota.  He also indicated that he was residing in Clearfield, Utah while attending Clearfield Job Corps and Great Basin High School.  Throughout his contract, he indicated that his parents resided in Wagner, South Dakota.  However, on page one of his DD Form 4/1 (Enlistment/Reenlistment Document – Armed Forces of the United States), it indicates his HOR is xx W xxxx S, Clearfield, Utah (the address of the Clearfield Job Corps Center).  He possessed a South Dakota driver's license at the time that contained a post office box address in Wagner, South Dakota. 

4.  On 27 May 1999, he enlisted in the Regular Army for a period of 4 years, training as an Avenger Systems Repairer, and a cash enlistment bonus.  He completed his basic combat training at Fort Benning, Georgia and his advanced individual training at Redstone Arsenal, Alabama before being transferred to Korea on 25 January 2000, for his first and only permanent duty assignment. 

5.  He was assigned to Camp Stanton and was advanced to the pay grade of E-4 on 1 June 2003.  He remained in Korea until 25 January 2004, when he was honorably released from active duty (REFRAD) due to completion of required service.

6.  His DD Form 214 issued at the time of his REFRAD reflects in block 7b. under "HOME OF RECORD AT TIME OF ENTRY" that his HOR was xx W xxxx S, Clearfield, Utah 84016.

7.  In block 19a (Mailing Address after Separation), the address is the same post office address listed on his South Dakota driver's license.

8.  In block 19b. (Nearest Relative) is the applicant's mother's name at xxx N Park Street, Wagner, South Dakota 57380.

9.  The Clearfield Job Corps Center is located at xx West xxxx S, Clearfield, Utah 84016.  The Yankton Sioux Reservation is in southeastern South Dakota (Charles Mix County) and the largest community on the reservation is located in Wagner, South Dakota.


10.  Army Regulation 601-210 provides the policies and procedures for the preparation of enlistment contracts.  It states, in pertinent part, that the HOR address entered on the enlistment contract will be the address declared by the applicant to be their permanent home or actual home at the time of enlistment.  A temporary address will not be entered.

11.  The Joint Federal Travel Regulation (JFTR) provides, in pertinent part, that the HOR is the place recorded as the home of the individual at the time of enlistment or induction.  There is no authority to change the HOR as officially recorded at time of entry into the military service.  However, there is authority to correct a HOR if erroneously entered on the records at that time, and then only for travel and transportation purposes.  Correction of the HOR must be based on evidence that a bona fide error was made and the HOR as corrected must have been the actual home of the individual at the time of entry into the relevant period of service.  It may not be a place selected for the convenience of the soldier.

DISCUSSION AND CONCLUSIONS:

1.  Although there are no provisions to change a HOR, there are provisions to correct a HOR if it can be determined that an error was made at the time the HOR was recorded.  The applicable regulations state that the HOR at the time of enlistment will be the actual home or permanent home and that a temporary address will not be entered.

2.  The evidence of record clearly shows that at the time the applicant was processing for enlistment he indicated that his HOR was in Wagner, South Dakota; however, when his DD Form 4/1 was completed, it indicates that his HOR was in Clearfield, Utah, which is the address for the Clearfield Job Corps Center.

3.  Accordingly, it is not reasonable to presume that his home address at that time was a permanent address or his HOR, especially since he still had a South Dakota driver's license and was attending a vocational training course at the same address listed as his HOR in Utah.  Therefore, it is reasonable to presume that an administrative error resulted in his HOR being depicted as being in Utah instead of South Dakota.

4.  Inasmuch as the applicant did indicate at the time of his enlistment processing that his HOR was in Wagner, South Dakota and since he is now reiterating that his legal residence and HOR is in Wagner, South Dakota, it is only reasonable that his HOR is the address that his parents reside at and should have been the address that should have been entered on his enlistment contract. 

5.  Therefore, since he has shown that his parents reside at xxx N Park Street, Wagner, South Dakota 57380, which is also indicated on his DD Form 214, it is reasonable to presume under the circumstances of the case that their address would have conveyed to him at the time of his enlistment and that it would be in the interest of justice to correct his enlistment contract and DD Form 214 to reflect their address as his HOR.

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 all Department of the Army records of the individual concerned be corrected by showing that his HOR was xxx N Park Street, Wagner South Dakota 57380 at the time of his enlistment and REFRAD.



      _______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)                                         AR20080017695



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ABCMR Record of Proceedings (cont)                                         AR20080017695



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