BOARD DATE: 3 September 2013
DOCKET NUMBER: AR20130001403
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, the widow of a deceased former service member (FSM), requests correction of item 8c (Home of Record (HOR) at Time of Entry into Active Service) of the FSM's DD Form 214 (Report of Separation from Active Duty) for the period ending 30 June 1977 to show XXXXX I____ Drive, El Paso, Texas.
2. The applicant states the FSM's HOR was XXXXX I____ Drive, El Paso, Texas, when he passed away, not XX M____ Walk, Apartment XXX, Brooklyn, New York.
3. The applicant provides:
* DD Form 214
* discharge orders
* marriage certificate
* death certificate
* deed to home
* property tax record
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. From the time the FSM was inducted into the Army on 18 June 1953 until his reenlistment in the Regular Army on 1 May 1964, an HOR was not listed on his induction/enlistment/reenlistment documents. His DD Form 4 (Enlistment Contract Armed Forces of the United States) dated 1 May 1964 first showed an HOR of Brooklyn, New York. His DD Form 4 for 1 March 1970 showed his HOR as an address in New Jersey.
3. Item 41 (HOR) of his last DD Form 4, dated 1 April 1974, shows: "XX M____ Walk, Apartment XXX, Brooklyn, New York."
4. The FSM retired on 30 June 1977. His DD Form 214 for the period ending 30 June 1977 shows:
* item 8c "XX M____ Walk, Apartment XXX, Brooklyn, New York"
* item 28 (Mailing Address after Separation) "XXXXX I____ Drive, El Paso, Texas
5. The FSM died on 19 June 2009.
6. Army Regulation 635-5 (Separation Documents), in effect at the time, stated to enter the street, city, state, and zip code listed as the Soldier's HOR in item 8c. The current regulation defines "home of record" as 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. 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.
DISCUSSION AND CONCLUSIONS:
1. The governing regulation states:
* the HOR is the place recorded as the HOR of the Soldier when commissioned, appointed, enlisted, or ordered to a tour of active duty
* an HOR cannot be changed unless there is a break in service of at least 1 full day
2. The evidence of record shows the FSM's HOR was documented as "XX M____ Walk, Apartment XXX, Brooklyn, New York" when he last reenlisted in 1974 and he did not have a break in service subsequent to that date and prior to his retirement in 1977. At no time was El Paso listed as his HOR. Therefore, there is no basis for granting 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 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) AR20130001403
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ABCMR Record of Proceedings (cont) AR20130001403
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