BOARD DATE: 10 March 2015
DOCKET NUMBER: AR20140011208
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 7b (Home of Record (HOR) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
2. The applicant states his HOR should he corrected to lists Anthony, TX, 79821 instead of Las Cruces, NM. This is a small error since Anthony, TX, is only 10 minutes away from Las Cruces, NM. This is an important correction for him that should be made. His HOR was listed as Las Cruces, NM, because this was assumed by the clerk since that is where he was attending college at New Mexico State University. His State of legal residency is TX as noted on his Leave and Earnings Statement (LES).
3. The applicant provides copies of his LES and DD Form 214.
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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.
2. The applicant enlisted in the U.S. Army Reserve (USAR) on 8 December 1994. His DD Form 4/1 (Enlistment/Reenlistment Documents) lists his HOR as XXX Plain Avenue, Las Cruces, NM.
3. He was appointed in the USAR, as a second lieutenant on 16 May 1997. His appointment memorandum shows his HOR as XXXX Topley Avenue, Las Cruces, NM.
4. Orders Number 100-20-1-290, dated 10 April 1997 ordered him to active duty with a reporting date of 24 October 1997. The orders show his HOR as Las Cruces, NM.
5. He provided a copy of a LES for the period 1 to 15 May 2005 which shows he paid State taxes to TX.
6. On 15 May 2005, he was released from active duty and transferred to the USAR Control Group (Reinforcement). Item 7b of his DD Form 214 shows his HOR as Las Cruces, NM.
7. Orders Number D-06-521196, dated 27 June 2005, discharged him from the USAR effective the same day.
8. 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 prepared for all personal at the time of their retirement, discharge, or release from active duty. The regulation stated a Soldiers initial enlistment contract or any correction approved by the U.S. Army Human Resources Command (HRC) was the source for the data listed in item 7b. The HOR is the place recorded as the HOR of the Soldier when he/she enlisted. This cannot be changed unless there is a break in active service of at least 1 full day, or it is determined by HRC to be factually incorrect. The HOR is not necessarily the same as the legal domicile as defined for income tax purposes. Legal domicile may change during a Soldiers career.
9. Table 11-1 of Army Regulation 601-280 (Total Army Reenlistment Program), states the HOR is 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 HOR 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 1 full day. Only if a break in service exceeds 1 full day can the HOR be changed by the member.
DISCUSSION AND CONCLUSIONS:
1. He enlisted in the USAR on 8 December 1994 as a cadet. His HOR was designated as Las Cruces, NM. He was appointed in the USAR on 16 May 1997 and entered on active duty. He was released from active duty on 15 May 2005.
2. Because his HOR had been designated as LAS Cruces, NM, at the time of his entry on and release from, this entry in item 7b of his DD Form 214 is correct.
3. There is no evidence of record and he did not provide sufficient evidence to show item 7b of his DD Form 214 contains an error. By regulation a correction of the HOR will not be made unless there was a break in service of at least 1 full day or a bona fide error was made at the time of entry into the relevant period of service. Therefore, he is not entitled to the requested relief.
________ ________ ________ 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) AR20140011208
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ABCMR Record of Proceedings (cont) AR20140011208
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