IN THE CASE OF:
BOARD DATE: 14 DECEMBER 2010
DOCKET NUMBER: AR20100014866
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 change his home of record (HOR) from PA to TX.
2. He states he changed his legal residence from the state of PA to TX in February 1993 while serving on active duty. He currently lives in TX and would like to be able to apply for TX State benefits.
3. He provided copies of two leave and earnings statements (LES) for February and April 1993 and a copy of his DD Form 214.
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. His records show he enlisted in the Regular Army and entered active duty on 3 August 1983. His DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) shows his HOR at the time of initial entry as Oxford, PA.
3. During the course of his 23 years of active Federal service he executed several reenlistment contracts. Each of those contracts also reflected Oxford, PA, as his HOR.
4. A copy of his DD Form 214 for the period ending 29 February 2004 shows he was honorably retired after serving over 23 years of active service. This form shows his HOR as Oxford, PA. Item 18 (Remarks) shows the following immediate reenlistments with no indication any a break in service:
* 1 August 1986 4 June 1989
* 5 June 1989 7 August 1994
* 8 August 1994 11 May 1997
5. He provided a copy of an LES for the months of February and April 1993 which show his state of legal residence as PA and TX, respectively.
6. 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, in pertinent part, that 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.
7. 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 that 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.
8. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions have been noted. However, he has not provided sufficient evidence to show he had a break in service of 1 full day and that his HOR was changed.
2. The fact that he submitted documentation to change his state of legal residence as reflected on his LES for the month of April 1993 has no bearing on the place he entered active duty for each period of enlistment.
3. His desire to obtain benefits from the State of TX is not sufficiently mitigating to warrant the relief requested. Additionally, the ABCMR does not change the DD Form 214 solely for the purpose of making an individual eligible for State benefits. Therefore, there is no basis for granting his request.
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 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.
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