IN THE CASE OF:	  MILLER, TERRY L. 

		BOARD DATE:	  14 January 2014

		DOCKET NUMBER:  AR20130008840 


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 item 21 (Home of Record (HOR)) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), ending on 13 October 1969, to show his HOR as Sharon, PA, and not Masury, OH.

2.  The applicant states:

   a.  He was born in Sharon, PA, and went to school there until the ninth grade. His parents moved to Masury, OH, in 1962.  He finished school and graduated from Brookfield High School in 1965.  After that he moved with his sister who lived in Sharon, PA.  His draft notice was sent to his parent’s home in Masury, OH, but he had lived with his sister for over a year before that.  He enlisted in the Army from Sharon, PA, in 1966 and was sworn in at Pittsburgh, PA, on 14 October 1966.  He was separated from the Army on 13 October 1969 and listed his permanent HOR as xxxx Erdrick Street, Philadelphia, PA.  He has been a Pennsylvania resident ever since.

   b.  He is a 100 percent totally and permanently disabled veteran who has applied for a single benefit from the state of Pennsylvania.  He was told that his DD Form 214 states he lived in Ohio and if he could get his HOR changed to Pennsylvania then he would be approved for the benefit.  

3.  The applicant provides copies of his:

* 1969 DD Form 214
* A Pennsylvania Department of Military and Veterans Affairs (VA) Application for Paralyzed Veterans Pension
* A letter from the VA
* VA Form 3288 (Request for and Consent to Release of Information from Claimant’s Records)

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 Regular Army on 14 October 1966.  His records contain the following:

   a.  A DD Form 4 (Enlistment Record – Armed Forces of the United States), dated 14 October 1966, which shows he was born in Sharon, PA, and his HOR as xx Ulp Street, Masury, OH.

   b.  A DD Form 398 (Statement of Personal History) which shows his permanent mailing address as xx Ulp Street, Masury, OH.  This form also lists his residences from 1947 to 1960 as Sharon, PA, and from 1960 to 1966 as Ulp Street, Masury, OH; and the form further lists his sister’s address as Sharon, PA.

   c.  A DA Form 41 (Record of Emergency Data), dated 15 September 1969, which lists his HOR as Masury, OH.

3.  He was released from active duty on 13 October 1969 and was transferred to the U.S. Army Reserve Control Group (Reinforcement).  His DD Form 214 lists his HOR as xx Ulp Street, Masury, OH, and his permanent address for mailing purposes as xxxx Erdrick Street, Philadelphia, PA.  




4.  He provided copies of the following:

* A Pennsylvania Application for Paralyzed Veterans' Pension which states an applicant must have been a legal resident of Pennsylvania at time of entry into the Armed Forces of the United States
* A VA letter, dated 23 July 2012, which pertains to his VA rating decision
* A VA Form 3288, dated 18 February 2013, wherein he authorized the release of information to the Pennsylvania Paralyzed Veterans’ Pension
* A Pennsylvania Paralyzed Veterans’ Pension letter, dated 19 April 2013, wherein he was advised that his DD Form 214 showed his HOR was Ohio, and the law stated that the veteran had to show Pennsylvania as their HOR

5.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  It stated the DD Form 214 would be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  That regulation specified item 21 would list the HOR at the time of entry.  A Soldier’s initial enlistment contract was the source for that data or any approved change by the Enlisted Records and Evaluation Center.  The HOR cannot be changed unless there was a break in service of at least one full day (Joint Travel Regulation, Volume 1, Appendix A, Part I).  The HOR was not always the same as the legal domicile as defined for income tax purposes.  Legal domicile could change during a Soldier’s career.

6.  The Joint Federal Travel Regulations serve as the authority for correcting an HOR that was erroneously entered at the time of an individual’s entry on active duty.  Joint Federal Travel Regulations define an individual's HOR as the place recorded as the home of the individual when commissioned, appointed, enlisted, inducted, or ordered into a tour of active duty.  It states a correction must be based on evidence that a bona fide error was made at the time of entry into the relevant period of service.  It must not be a place selected for the convenience of the Soldier.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant’s permanent address was in Masury, OH, at the time of his enlistment on 13 October 1966.

2.  In accordance with regulatory guidance, the HOR may not be changed unless there is no evidence of a break in service from his enlistment in 1996 and he did not request a change of his HOR during his period of active duty.  There is also no evidence a bona fide error was made at the time of his entry in the Army.  Therefore, he is not entitled to correction of item 21 of his 1969 DD Form 214 to list his HOR as Sharon, PA.

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)                                         AR20130008840





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ABCMR Record of Proceedings (cont)                                         AR20130008840



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