BOARD DATE:	  18 October 2012

		DOCKET NUMBER:  AR20120004293 


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 the home of record entry shown on his 2008 DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states that South Carolina has never been his home of record.  In April or June 2008, he asked the noncommissioned officers who were handling his separation to make the correction, but they would not change the entry.  He has supporting records from the State of Florida.

3.  The applicant provides copies of the following documents in support of his request:

* 3 April 2008 DD Form 214
* 29 September 2006 DD Form 214
* 10 October 2001 DD Form 214
* 13 February 1992 DD Form 214
* DA Form 4037 (Officer Record Brief)
* Department of the Treasury Internal Revenue Service (IRS) Form W-2 (Wage and Tax Statement) for 2008
* IRS Form W-4 Withholding Certificate)
* DD Forms 2058 (State of Legal Residence Certificate), dated 2003 and 2006
* military leave and earnings statements
* IRS Form W-2 (Wage and Tax Statement) for 2005
* Florida Voter Registration Card
* 3rd Recruiting Battalion Personnel Action Coversheet
* South Carolina Army National Guard Orders 264-106, dated 21 September 2006
* extract from Army Regulation 635-5 (Separation Documents)

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 served in the Regular Army in an enlisted status between 1988 and 2001 when he was commissioned.

3.  He served as a Regular Army officer from 11 October 2001 until 29 September 2006 when he was discharged in the rank/pay grade of captain/
O-3 at Fort Knox, KY.  His DD Form 214 for this period of service shows Cleveland, Ohio, as his home of record.

4.  He entered active duty the next day as a captain in the Army National Guard.

5.  Army Regulation 635-5 provides item-by-item instructions for completing a DD Form 214, including item 7a (Place of Entry into Active Duty) and item 7b (Home of Record at Time of Entry) which states:

A Soldier's initial enlistment contract or appointment document is the source for this data.

(a)  Enter the city and state where the Soldier entered active duty.  

(b)  Enter the street, city, state and zip code listed as a Soldier's home of record.  "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 (Joint Federal Travel Regulations, Volume 1, Appendix A, Part I).  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.

6.  The documents the applicant submitted to support his application fall into two basic categories.

	a.  Except for the subject 2008 DD Form 214, all of the applicant's DD Forms 214 list the applicant's home of record as Cleveland, Ohio, as does his Officer Record Brief.

	b.  The tax and disbursing documents and the legal residence forms show his residence as Florida.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested correction of his home of record.  He submitted information relating to both Ohio and Florida, but did not specify which he desired to be shown as his home of record.

2.  The governing directives provide that the home of record cannot be changed unless there was at least a 1-day break in service.

3.  His home of record was and had always been Cleveland, Ohio, when he entered active duty as an Army National Guard captain on 30 September 2006.  Therefore, that was his home of record when he was released from that period of active duty and that is what should be shown on his DD Form 214.

4.  There is no provision for changing his home of record to Florida even though that was his state of legal residence.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X___  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all of the Department of the Army records of the individual concerned be corrected by amending item 7 of his DD Form 214 for the period ending 3 April 2008 to read "Cleveland, Ohio."

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application as may pertain to changing the applicant's home of record to Florida.



      ___________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)                                         AR20120004294



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ABCMR Record of Proceedings (cont)                                         AR20120004293



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