BOARD DATE:	  4 May 2010

		DOCKET NUMBER:  AR20090018082 


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 his home of record (HOR) be changed to Austin, TX.

2.  The applicant states he entered the Army in Rhode Island and reenlisted in Colorado.  After a short break he reenlisted in Colorado and went to Texas.  He was unable to reenlist in Texas and chose to remain in Texas and reenlisted in the Texas Army National Guard (TXARNG) twice and since retired from the TXARNG.  He states he thought by getting out in Texas and reenlisting in the TXARNG that Texas would become his home of record.

3.  The applicant provides a copy of his orders to the Retired Reserve.

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's military records show he initially enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 13 April 1977.  His 
DD Form 4 (Enlistment or Reenlistment Agreement - Armed Forces of the United States) shows his HOR as Newport, RI.  He was discharged from the USAR DEP on 15 November 1977 and he enlisted in the Regular Army (RA) on
16 November 1977 for a period of 3 years and extended this enlistment on
14 December 1978, for a period of 4 years and 2 months.

3.  On 28 August 1981, the applicant reenlisted in the RA for a period of 3 years. His DD Form 4 shows his HOR as West Covina, CA.

4.  On 22 June 1984, the applicant enlisted in the USAR for a period of 2 years under the Individual Ready Reserve dual component enlistment option.  His 
DD Form 4 shows his HOR as Newport, RI.

5.  On 27 August 1984, the applicant was discharged from the Regular Army.

6.  On 9 July 1985, the applicant was discharged from the USAR and he enlisted in the RA.  There is no DD Form 4 available for this enlistment.

7.  On 8 October 1991, the applicant was discharged from the RA and he enlisted in the TXARNG on 9 October 1991 for a period of 3 years.  His 
DD Form 4 shows his HOR as 3--7 Atkinson Ave #1--, Killeen, TX 76542.

8.  On 9 August 2000, the applicant was notified he had completed the required years of service for eligibility for retired pay upon application at age 60.

9.  The applicant's National Guard Bureau (NGB) Form 22 (National Guard Bureau Report of Separation and Record of Service) shows he served in the TXARNG from 9 October 1991 to 8 October 2000.

10.  State of Texas, Adjutant General's Department, Austin, TX, Orders 233-203, dated 21 August 2001, discharged the applicant from the Army National Guard effective 8 October 2000 and assigned him to the Retired Reserve the following day.  Under additional instructions his home of record is shown as Pflugerville, TX.

11.  Table 5-1 of Army Regulation 601-280 (Total Army Reenlistment Program), effective 20 July 1984, stated that effective 1 January 1983, the HOR is the place recorded as the home of the individual when commissioned, appointed, enlisted, inducted, or ordered into relevant tour of active duty.  The place recorded as the 

HOR of the individual when reinstated, reappointed, or reenlisted remains the same as that recorded when commissioned, appointed, enlisted, or inducted or ordered into the relevant tour of active duty unless there is a break in service of more than one full day.  Only if a break in service exceeds one full day, can the HOR be changed by the member.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his home of record should be changed to Austin, TX.  He contends when he got out of the RA and enlisted in the TXARNG his HOR should have changed to Texas.

2.  The applicant was discharged from the RA on 8 October 1991 and he enlisted in the TXARNG on 9 October 1991.  There was no break in service exceeding one full day between the RA and the TXARNG.  Therefore, the applicant could not change his HOR when he enlisted in the TXARNG.

3.  The applicant's records do not show a break in service that exceeds one full day during the period from 13 April 1977 to the date of his transfer to the Retired Reserve on 9 October 2000.  Therefore, under the provisions of Army Regulation 601-280, his HOR would remain Newport, RI throughout his service.

4.  In view of the above, there is insufficient evidence to support a change of the applicant's HOR to Austin, TX.

5.  The applicant's orders assigning him to the Retired Reserve indicate his home of record as Pflugerville, TX.  However, it is the policy of this Board to not disadvantage an applicant by making the situation any worse off for having applied for a correction to their record.  Therefore, the HOR recorded on his orders to the Retired Reserve will not be changed to Newport, RI unless the applicant makes application to do so.

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.



      ___________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.

ABCMR Record of Proceedings (cont)                                         AR20090018082



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ABCMR Record of Proceedings (cont)                                         AR20090018082



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