IN THE CASE OF:
BOARD DATE: 29 September 2011
DOCKET NUMBER: AR20110008260
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 as Texas.
2. The applicant states his DD Form 214 currently shows his late father's address at the time. His late father's address was not his home of record but the most convenient for mail to be sent to while he was moving.
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 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. A DA Form 71 (Oath of Office - Military Personnel), prepared at West Point, New York, shows the applicant was appointed a commissioned officer in the Regular Army on 29 May 1993 and entered active duty on the same date. His orders to active duty are not available for review.
3. His Officer Record Brief (ORB) shows his home of record at the time of entry into active duty as New York.
4. He was released from active duty on 29 May 1998. Item 7b (Home of Record at Time of Entry) of his DD Form 214 shows New York.
5. There is no evidence in his Official Military Personnel File (OMPF) that shows his home of record at the time of his entry into active duty as Texas.
6. 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. It states that the street, city, state, and zip code listed as a Soldier's home of record would be entered in block 7b on the DD Form 214. "Home of Record" is the place recorded as the home of record 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 one full day. Home of record is not always 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. The applicant's contention that his DD Form 214 should be corrected to show his home of record as Texas has been carefully reviewed.
2. His ORB shows his home of record as New York. There is no evidence in his OMPF, and he provided none, that shows his home of record as Texas.
3. Item 7b on his DD Form 214 appears to be correct and he has not shown through the evidence submitted that the home of record shown on his DD Form 214 is in error.
4. However, if the applicant has or can obtain a copy of his orders to active duty showing a home of record other than New York, he may submit another application for reconsideration.
5. Based on the above, there is no basis to grant the applicant's 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 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) AR20110008260
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