IN THE CASE OF:	  

		BOARD DATE:	  22 January 2013

		DOCKET NUMBER:  AR20120011119 


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 (HOR) as "Texas" instead of "Paterson, New Jersey." 

2.  The applicant states his DD Form 214 does not show his HOR had been changed before reenlistment.  He needs his HOR changed to receive Texas State benefits.

3.  The applicant provides:

* DD Forms 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) 
* DD Form 214
* 1988 W-2 Form (Wage and Tax Statement) 
* September 1987 Leave and Earnings Statement

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 under the Delayed Entry Program (DEP) on 23 February 1985.  His DD Form 4/1 (Enlistment/ Reenlistment Document-Armed Forces of the United States) shows his HOR as "7XA Pxxxxxxx Street, Paterson, NJ."  

3.  On 4 March 1985, he was discharged from the DEP and he subsequently enlisted in the Regular Army (RA) for 3 years on 5 March 1985.  He was discharged from the RA on 5 October 1989, for immediate reenlistment in the RA.

4.   On 6 October 1989, while at Fort Sam Houston, Texas, he reenlisted in the RA for 6 years.  His DD Form 4/1 listed his HOR as "Paterson, New Jersey."  

5.  On 13 October 1992, Headquarters, 378th Personnel Service Company, Germany, published Orders 287-46 ordering his honorable discharge effective 12 November 1992.  The orders listed his HOR as "Paterson, New Jersey." 

6.  On 12 November 1992, he was honorably discharged from active duty.  The DD Form 214 he was issued shows in:

	a.  item 4 (Place of Enlistment/Reenlistment) "Newark MEPS (Military Entrance Processing Station)"; and 

	b.  item 7b (HOR at Time of Entry (City and state, or complete address if known)) - "7XA Pxxxxxxx Street, Paterson, New Jersey." 

7.  Based on the W-2 Form and the Leave and Earnings Statement he submitted it appears he claimed Texas as his state of legal residence for tax purposes.  

8.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) provides the policies and procedures for the preparation of enlistment contracts.  It states, in pertinent part, that the HOR address entered on the enlistment contract will be the address declared by the applicant to be their permanent home or actual home at the time of enlistment. 


9.  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 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.

10.  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, appointment, or entry on active duty, 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 March 1985, he listed his HOR as "Paterson, New Jersey."  He reenlisted and served continuously on active duty without a break in service through 
12 November 1992, his discharge date.

3.  Although he was stationed at Fort Sam Houston, Texas and he may have claimed Texas as his legal residence for tax purposes, Texas was never his HOR.  Accordingly, when his DD Form 214 was prepared upon his discharge in 1992, it correctly listed "Newark, New Jersey" as the place he entered active duty and "Paterson, New Jersey" as his HOR.  There is neither an error nor an injustice or a reason to change the HOR listed on his DD Form 214.



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)                                         AR20120011119





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ABCMR Record of Proceedings (cont)                                         AR20120011119



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