IN THE CASE OF:	  

		BOARD DATE:	  12 January 2011

		DOCKET NUMBER:  AR20100014183 


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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his home of record (HOR) as TX.  He also requests upgrade of his general discharge.

2.  The applicant states he changed his HOR to Texas in 1988 and he reenlisted in 1990 as a Texas veteran.  Further, he has never paid taxes to the state of Iowa nor has he ever returned there since his original enlistment.  He requests the correction be expedited because his daughter begins school in the fall.  He was not aware his HOR was not Texas until they applied for a scholarship at Texas State University.

3.  The applicant provides no additional evidence.

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 enlisted in the Regular Army on 9 February 1988.  His DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows his HOR at the time of initial entry as Council Bluffs, IA.  The highest rank/pay grade he attained while serving on active duty was sergeant (SGT)/E-5.  However, at the time of his separation he held the rank/grade of specialist (SPC)/E-4.

3.  During the course of his 4 years, 7 months, and 3 days of active Federal service he executed one reenlistment on 19 April 1991.  His reenlistment
DD Form 4 also reflected Council Bluffs, IA as his HOR.

4.  His record reveals a disciplinary history that includes numerous adverse counseling statements for matters such as:

* safety violations and damaged equipment during gunnery completion training
* drinking on duty before conducting live fire on Bradley Table VIII
* disobeying a direct order from a noncommissioned officer

5.  His record also reveals his acceptance of nonjudicial punishment (NJP) on two occasions for:

* operating a vehicle in a reckless manner by illegally passing on the right and fleeing the scene of an accident 
* being drunk on duty as the Bradley Fighting Vehicle gunner

6.  On 11 August 1992, his unit commander notified him that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance.  The commander cited the applicant's receiving a Field Grade Article 15 for being drunk on duty as the basis for this action.  The unit commander also informed the applicant that he could receive an honorable discharge.  The unit commander continued by advising the applicant of his rights to consult with legal counsel, to submit written statements in his own behalf, to obtain copies of documents that would be sent to the separation authority supporting the proposed separation, and to waive these rights in writing.  He acknowledged receipt of the unit commander's notification on the same date.


7.  On 18 August 1992, his battalion commander waived the requirement for a rehabilitative transfer and recommended he receive a General Discharge Certificate.

8.  On 21 August 1992, the separation authority directed his discharge under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-2, and issuance of a General Discharge Certificate.

9.  On 11 September 1992, he was discharged accordingly.  His DD Form 214 issued to him at the time shows in:

* Item 7b (Home of Record at Time of Entry) - Council Bluffs, IA
* Item 24 (Character of Service) - Under Honorable Conditions (General)
* Item 25 (Separation Authority) - AR [Army Regulation] 635-200, Chapter 13
* Item 28 (Narrative Reason for Separation) - Unsatisfactory Performance

10.  His DD Form 214 further shows he was awarded or authorized the Army Good Conduct Medal, National Defense Service Medal, Noncommissioned Officer Professional Development Ribbon, Army Achievement Medal with 1st oak leaf cluster, Army Service Ribbon, Overseas Service Ribbon, Combat Infantryman Badge, Expert Marksmanship Qualification Badge with Rifle Bar, Sharpshooter Marksmanship Qualification Badge with Grenade Bar, Southwest Asia Service Medal with three bronze service stars, and Kuwait Liberation Medal.

11.  On 6 March 1996, the Army Discharge Review Board determined that he was properly and equitably discharged.  Accordingly, his request for a change in the character and/or reason of his discharge was denied.

12.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  It states a Soldier's initial enlistment contract or appointment document is the source for HOR data.  This regulation further states that "Home of Record" is the place recorded as the HOR 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.  Home of record is not always the same as the legal domicile as defined for income tax purposes.  Legal domicile (residence) may change at any time during a Soldier's career.


13.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) provides that the policies and procedures for the preparation of enlistment contracts.  It states the HOR address entered on the enlistment contract will be the address declared by the applicant to be his or her permanent home or actual home at the time of enlistment.  A temporary address will not be entered.

14.  The Joint Federal Travel Regulation provides 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 an 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.

15.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

16.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows he enlisted in the Regular Army and he reenlisted once with no break in service.  Council Bluffs, IA is shown as his HOR on each DD Form 4 prepared on his enlistment and reenlistment.  Further, his 


DD Form 214 shows his HOR as Council Bluffs, IA.  There is no evidence contained in the record or provided by the applicant to show he changed his HOR to Texas during his active duty service.  Accordingly, there is no apparent error.

2.  In regard to upgrading his discharge, the record shows he had multiple disciplinary infractions.  These infractions included reckless driving, fleeing the scene of an accident, disobeying a lawful order, and being drunk on duty on a live fire Bradley range.

3.  His service is Southwest Asia is noted; however, based on his record of indiscipline his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His general discharge is commensurate with his overall service.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100014183



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ABCMR Record of Proceedings (cont)                                         AR20100014183



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