IN THE CASE OF:
BOARD DATE: 12 June 2012
DOCKET NUMBER: AR20110021710
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) by amending his Home of Record (HOR).
2. He states that at the time he was accessed in the Army, his HOR as listed on his active duty order was Vigan, Ilocos Sur, Philippines. The error occurred during the processing of his DD Form 214 for retirement. When he showed the clerk his accession order, the applicant was informed that no more corrections could be made.
3. He provides:
* Various orders
* His DD Form 214
* An excerpt from an Army Regulation
CONSIDERATION OF EVIDENCE:
1. The applicant retired on 31 January 2010, after completing 20 years of honorable active service.
2. He provided a copy of Orders A-12-002151, dated 14 December 1989. This order shows he was ordered to active duty in the grade of captain for the purpose of attending the U.S. Army Chaplain Officer Basic Course. His home address was listed as St. Mary's Church, xxx Augusta St., South Amboy, NJ. His HOR is shown as Vigan, Ilocos Sur 0401, Philippines. The place entered active duty (EAD) is shown as South Amboy, NJ.
3. Headquarters, 1st Infantry Division and Fort Riley, Orders 167-0028, dated
16 June 2009, reassigned the applicant to the transition center for separation processing for retirement. This order also lists his HOR as South Amboy, NJ.
4. Orders 169-0008, dated 18 June 2009, amended the previous retirement order by changing his HOR from South Amboy, NJ to Vigan, Ilocos Sur, Philippines.
5. The applicant's DD Form 214 for the period ending 31 January 2010 shows the following entries:
* 7a (Place of Entry into Active Duty) South Amboy, New Jersey
* 7b (Home of Record at the Time of Entry) xxx Axxxxxa Street, South Amboy, New Jersey 08879
6. The Joint Federal Travel Regulation (JFTR) 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 the 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.
7. Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) states an applicant for appointment must be a U.S. citizen or have lawfully entered the United Sates for permanent residence.
8. Army Regulation 635-5 (Separation Documents), paragraph 2-4h(7)(b) (Home of Record at Time of Entry) states that the entry, at item 7b on the DD Form 214, is obtained from the Soldier's initial enlistment contract or appointment document. The "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 1 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.
9. "Legal residence" refers to a person's permanent domicile, as distinguished from a temporary residence. Domicile is defined as that place where a person has his or her fixed, permanent place of abode, to which the person intends to return despite temporary residences elsewhere or temporary absences. Once established, a persons legal residence, or domicile, remains the same even when the person enters the Armed Forces and lives in another state pursuant to military orders. Because of the protections provided under the Soldiers and Sailors Act of 1943, a service members legal residence does not change until the member acts to establish a new residence in the state in which assigned. Therefore, if a member of the Armed Forces never acts to change his or her legal residence, the members HOR and state of domicile will be the same.
DISCUSSION AND CONCLUSIONS:
1. The applicant's HOR on his officer accession order shows Vigan Ilocos Sur, Philippines. The place EAD is shown as South Amboy, NJ. It appears an error occurred at the time his accession orders were prepared which listed his HOR as the Philippines.
2. JFTR states the HOR is the place recorded as the home of the individual when commissioned, appointed, enlisted, or ordered to a tour of active duty. His home as listed on his 1989 accession order was St. Mary's Church, South Amboy, NJ. By regulation, an applicant for a commission must be U.S. citizen or have lawfully entered the United States for permanent residence. His permanent residence could not then have been a foreign country (i.e., the Philippines) or he would not have been eligible for commissioning.
3. In view of the foregoing, there appears to be no error or injustice in the HOR as listed on his DD Form 214. Therefore, he is not entitled to the 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) AR20110021710
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ABCMR Record of Proceedings (cont) AR20110021710
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