BOARD DATE:	  15 May 2014

		DOCKET NUMBER:  AR20130015488 


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 "El Paso, Texas" instead of "Los Angeles, California."

2.  The applicant states:

   a.  He was living with his aunt and uncle in El Paso, Texas when he joined the Army in 1989.  His mother was born in El Paso and he lived there as a young boy as well as Mexico City, Mexico until 1989, when he returned to El Paso to live.  

   b.  While visiting an uncle in Los Angeles, California he decided to join the Army.  He did not pay attention to the details of his paperwork upon enlistment and he subsequently discovered his HOR was recorded as Los Angeles, California.  
   
   c.  In approximately 1996, he changed his HOR to El Paso, Texas.  His social security number is from Texas; however, when he retired in 2010, he did not check his DD Form 214 and learned his HOR was listed as Los Angeles, California.
   
   d.  Upon retirement, he returned to reside in Texas.  He is now trying to take care of his daughter's enrollment in college.



3.  The applicant provides:

* DD Form 214
* Report of Birth Abroad
* DD Form 4/1 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* Page 2 of DA Form 2-1 (Personnel Qualification Record)
* 10 pages of Form W-2 (Wage and Tax Statement)
* 2 Enlisted Record Briefs
* Settlement 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.  As part of his enlistment processing the applicant completed a DD Form 1966 (Record of Military Processing – Armed Forces of the United States).  Item 5 (HOR Address) shows he indicated his HOR was Los Angeles, California.             Item 25 (Residences) shows he resided in:

* Arcadia, California from January 1984 to January 1986
* Orizaba, Mexico from January 1986 to August 1989
* Los Angeles, California from August 1989 to present

Item 26 (Employment) shows he was employed in:

* North Hollywood, California from January 1983 to January 1984
* Monelez, Mexico from January 1984 to May 1987
* Veracruz, Mexico from May 1987 to present

3.  The applicant enlisted in the U.S. Army Reserve (USAR) under the Delayed Entry Program (DEP) on 5 October 1989.  Item 5 (HOR) of his DD Form 4 listed his HOR as "Los Angeles, California."  He enlisted at the Military Entrance Processing Station, Los Angeles, California.

4.  On 14 November 1989, he was discharged from the USAR DEP and on
14 November 1989, he enlisted in the Regular Army for a period of 4 years and 14 weeks.  

5.  On 12 March 1993, while stationed at Fort Ord, California, he executed a reenlistment in the Regular Army.  His DD Form 4 also listed his HOR as "Los Angeles, California."  

6.  On 27 September 1996, while stationed at Fort Bragg, North Carolina, he executed a reenlistment in the Regular Army.  His DD Form 4 listed his HOR as "El Paso, Texas."  

7.  On 29 September 1999, while stationed at Fort Bliss, Texas, he executed a reenlistment in the Regular Army.  His DD Form 4 listed his HOR as "Los Angeles, California."  

8.  Orders 218-0008, issued by Installation Management Command, Yongsan, Korea, dated 6 August 2009, ordered his release from active duty by reason of retirement effective 28 February 2010 and placed him on the Retired List on the following day.  The orders listed his HOR as "Los Angeles, California."

9.  The DD Form 214 he was issued at the time shows in:

* item 7a (Place of Entry Into Active Duty) - "Los Angeles, California"
* Item 7b (Home of Record at Time of Entry (City and state, or complete address if known)) - "Los Angeles, California"

10.  A review of his record shows that he had no breaks in service from the time of his entry on active duty until his date of retirement.

11.  Army Regulation 601-280 (Army Retention Program) prescribes the criteria for the Army retention program.  Table 11-1 of this regulation defines the HOR as the place recorded as the home of the individual when commissioned, appointed, enlisted, inducted, or ordered into the relevant tour of active duty.  The place recorded as the home of the individual when reinstated, reappointed, or reenlisted remains the same as that recorded when commissioned, appointed, enlisted, or inducted or ordered into the relevant tour of active duty unless there is a break in service of more than one full day.  Only if a break in service exceeds one full day can the HOR be changed by the member.

12.  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 their retirement, discharge, or release from active duty.  Item 7a of the DD Form 214 shows the place of entry onto active duty.  Item 7b shows the HOR at time of entry.  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 and other purposes.  Legal domicile may change during a Soldier's career.

13.  The JFTR provides, in 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.  The applicant's contention that his HOR should be changed to show El Paso, Texas vice Los Angeles, California was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By law and regulation, the HOR is the place recorded as the home of the individual at the time of their enlistment or induction, and there is no authority to change the HOR officially recorded at the time of entry into military service.  Any correction to a HOR must be based on evidence that a bona fide error was made.

3.  In this case, the evidence of record shows upon his initial enlistment in the USAR on 5 October 1989, he listed his HOR as "Los Angeles, California" and he entered active duty from "Los Angeles, California."  As such, his DD Form 214 correctly listed this city/state in items 7a and 7b, respectively.

4.  He further reenlisted on 12 March 1993, 27 September 1996, and                  29 September 1994.  During each reenlistment with the exception of                  27 September 1996, his HOR was listed as Los Angeles, California.  As such, he served continuously on active duty, without any break in service, through his retirement on 28 February 2010.  In accordance with applicable regulations, the listing of El Paso, Texas as his HOR on his 27 September 1996, reenlistment was clearly erroneous.

5.  Although it appears he may have claimed Texas as his legal residence for tax purposes, there is insufficient evidence to show Texas was his HOR.  Furthermore, his DD Form 1966 clearly shows he neither resided nor was employed in Texas at any time from 1983 to the date of his enlistment.  

6.  Accordingly, when his DD Form 214 was prepared upon his retirement in 2010, it correctly listed "Los Angeles, California" as the place he entered active duty and "Los Angeles, California" as his HOR.  There is neither an error nor an injustice to support changing the HOR listed on his DD Form 214.

7.  In view of the foregoing, there is insufficient evidentiary basis for granting the applicant's 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)                                         AR20130015488





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ABCMR Record of Proceedings (cont)                                         AR20130015488



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