IN THE CASE OF:	  

		BOARD DATE:  22 May 2012

		DOCKET NUMBER:  AR20110021288 


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) for the period ending 29 September 1993 to show his home of record (HOR) as "Middletown, OH" instead of "Lawton, OK." 

2.  The applicant states he was living in "Middletown, OH" when he entered the service.  He believes the error was made by the clerk at the time of discharge.

3.  The applicant provides:

* DD Form 214, ending on 29 September 1993
* Leave and Earnings Statement, ending on 31 March 1990
* DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States)
* Certificate of Birth

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 U.S. Army Reserve (USAR) under the Delayed Entry Program (DEP) in Cincinnati, OH, on 17 December 1975.  Item 5 (HOR) of his DD Form 4 shows "Middletown, OH."  He was discharged from the DEP on 
4 January 1976.

3.  He enlisted in the Regular Army (RA) on 5 January 1976 and he was honorably discharged from active duty on 30 July 1979 for the purpose of immediate reenlistment.  Item 8c (HOR At Time of Entry Into Active Service) of his DD Form 214 (Report of Separation from Active Duty) lists his HOR as "Middletown Butler, OH."  However, this item is lined through and a hand-written entry was annotated to the right of this entry that shows "Portland, OR 97206" and what appears to be the applicant's initials.

4.  He reenlisted in the RA for 6 years on 31 July 1979.  Item 5 (HOR) of his
DD Form 4 lists his HOR as "Middletown, OH."  However, this item is lined through and a hand-written entry was annotated on top of this entry that shows "Portland, OR 98206" and what appears to be the applicant's initials.

5.  The applicant was honorably discharged on 30 July 1985.  His DD Form 214 for this period does not contain an entry for the HOR.  However, it lists his place of entry on active duty as "Cincinnati, OH" and the station where separated as Fort Sill, OK.

6.  After a break in service, the applicant enlisted in the RA for 4 years on
27 September 1988.  Page 4/1 of the applicant's enlistment contract, which would list his HOR, is not available for review with this case.  Additionally, item 5 (HOR) of his DD Form 1966/1 Record of Military Processing - Armed Forces of the United States) contains illegible entries with multiple lines drawn through them.  

7.  On 10 February 1992, he executed a 2-year reenlistment.  Item 3 (HOR) of his DD Form 4 lists "2xxx Street, Lawton, OK."

8.  On 20 August 1993, prior to release from active duty, he executed a 3-year enlistment in the USAR.  Item 3 of this DD Form 4 lists his HOR as "Lawton, OK." 



9.  He was honorably discharged from active duty on 29 September 1993.  The DD Form 214 he was issued shows the following entries:

* Item 7a (Place of Entry Into Active Duty) - "Cincinnati, OH"
* Item 7b (HOR at Time of Entry) – "Lawton, OK"
* Item 8b (Station Where Separated) - "Fort Hood, TX"
* item 19 (Mailing Address After Separation) - "4xx 4xx Vxxxxxxxxx Street, "Middletown, OH 45044"

10.  He provided a copy of his March 1990 LES that shows in item 25 (State Code) the entry "OH" and his certificate of birth that shows he was born in OH.

11.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel File (OMPF), the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Table 5-2 of this regulation states that the term "HOR" means the place (city and state or country) recorded as the home of the individual when commissioned, reinstated, appointed, reappointed, enlisted, reenlisted, inducted, or ordered into the relevant tour of active duty.

12.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The 
DD Form 214 is prepared for all personnel at the time of their retirement, discharge, or release from active duty.  Item 7 of the DD Form 214 shows the place of entry onto active duty and HOR at time of entry.  Item 7b shows the street, city, state and ZIP code listed as the Soldier’s HOR.  The "HOR" 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 (Joint Federal Travel Regulations (JFTR), Volume 1, App A, Part I).  The HOR is not always the same as the legal domicile as defined for income tax purposes.  Legal domicile may change during a Soldier’s career.

13.  The JFTR provides, in pertinent part, 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 a 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.

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, the HOR is the place recorded as the home of the individual at the time of enlistment, or induction, and there is no authority to change the HOR officially recorded at the time of entry into military service unless it is based on evidence that a bona fide error was made.  

2.  In this case, the evidence of record shows upon his initial enlistment in the RA in 1976 the applicant listed "Middletown, OH" as his HOR.  Accordingly, when his DD Form 214 was prepared upon discharge in 1979, it listed this HOR.  

3.  On 31 July 1979, when he reenlisted he listed his HOR as "Middletown, OH." The DD Form 214 he received in 1985 did not contain an entry for the HOR.

4.  After a break in service, he enlisted in the RA on 27 September 1988.  The first page of his enlistment contract, which would have listed his HOR, is not available for review with this case.  However, his subsequent reenlistment in the RA in February 1992 and in the USAR in August 1993 listed "Lawton, OK" as his HOR.  

5.  The HOR entry on each contract should have mirrored the entry on the previous enlistment contract.  Therefore, it is reasonable to presume the entry on his 1988 contract would have listed "Lawton, OK' as his HOR.  Accordingly, when his DD Form 214 was prepared upon discharge in 1993, it listed this HOR. 

6.  The applicant's HOR appears not to be in error on any of the applicant's DD Forms 214.  Each listed the proper HOR as indicated by the applicant upon enlistment or reenlistment and this is supported by his enlistment/reenlistment contracts.  

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)                                         AR20110021288



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ABCMR Record of Proceedings (cont)                                         AR20110021288



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