BOARD DATE: 3 November 2009
DOCKET NUMBER: AR20090010369
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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his home of record (HOR) as Killeen, Texas, and to show he was awarded the Legion of Merit.
2. The applicant states he mistakenly did not change his home of record when he obtained Texas residency in 1998. He adds that he received the Legion of Merit after the DD Form 214 was issued.
3. The applicant provides a certificate and orders for the Legion of Merit.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. After having had prior enlisted service, the applicant was appointed as a warrant officer and entered active duty on 30 March 1979. He served on active duty continuously until his retirement on 31 March 2003.
3. Headquarters, U.S. Army Training Center Engineer, Fort Leonard Wood, Missouri, Orders Number 86-1, dated 27 March 1979, show the applicant was being discharged to accept appointment as a warrant officer (WO) effective 29 March 1979. These orders show his HOR as Fayetteville, North Carolina.
4. Headquarters, Fifth U.S. Army, Fort Sam Houston, Texas, Orders
Number 54-13-A-43, dated 19 March 1979, ordered the applicant to active duty in the rank of warrant officer one effective 16 April 1979. These orders show his HOR as Fayetteville, North Carolina.
5. The applicant's DD Form 214 (Report of Separation from Active Duty) for the period ending 29 March 1979 shows his HOR as Fayetteville, North Carolina.
6. Headquarters, III Corps and Fort Hood, Fort Hood, Texas, Permanent Order Number A-009-2, dated 9 January 2003, awarded the applicant the Legion of Merit.
7. The applicant's DD Form 214 for the period ending 31 March 2003 shows his HOR as Fayetteville, North Carolina. This DD Form 214 does not show award of the Legion of Merit.
8. Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army and establishes standardized policy for the preparation of the DD Form 214. It states the DD Form 214 is a synopsis of the Soldiers most recent period of continuous active duty, providing a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. It provides, in pertinent part, that the HOR is the place recorded as the home of the Soldier when commissioned, appointed, enlisted, or ordered to a tour of active duty. This cannot be changed unless there is a break in service of at least 1 full day. HOR is not necessarily the same as the legal domicile as defined for income tax purposes; legal domicile may change during a Soldier's career.
DISCUSSION AND CONCLUSIONS:
1. Permanent orders awarded the applicant the Legion of Merit. Therefore, he is entitled to have his DD Form 214 amended by adding this award.
2. Orders show that at the time of the applicant's WO appointment, his HOR was listed as Fayetteville, North Carolina.
3. There is no evidence in the applicant's records showing his HOR as Killeen, Texas, and the applicant contends that he mistakenly did not change his HOR when he obtained Texas residency. It appears he is confusing his legal domicile or the residence selected for tax purposes as his HOR. Therefore, there is no basis to change his HOR.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
__x_____ ___x___ ___x _____ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the Legion of Merit to his DD Form 214 for the period ending 31 March 2003.
2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to amending block 7b of his DD Form 214 for the period ending 31 March 2003 to show his HOR as Killeen, Texas.
___________x______________
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.
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