The military can be confusing, with all its special terms and acronyms. One of the terms most often mis-used is home of record. The term comes up in questions about taxes and driver’s licenses and final moves. On rare occasion, when talking about final moves, it’s being used properly. The other 99.9% of the time, folks are actually talking about State of Legal Residence, or domicile, when they say “home of record.” It’s a pet peeve of mine, because not using the right term can mean getting the wrong answer to your questions.
Home of Record
A service member’s home of record is the place from which they entered the military. That’s it.
Pretty much the only time your home of record is important is when you leave the military before reaching retirement. Then, your final travel entitlements are based upon your home of record and the distance from your current duty station.
There are no provisions to change your home of record unless it is erroneously recorded when you enter the military, or you have a break in service. Lots of people may tell you that you can change your home of record when you reenlist. According to the Joint Travel Regulations, said reenlistment must include a break in service of at least one day.
From the Joint Travel Regulations, Appendix A, Home of Record:
“The place recorded as the individual’s home when reinstated, reappointed, or reenlisted
remains the same as that recorded when commissioned, appointed, enlisted or inducted or ordered into the 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 may the Service member change the HOR.”
The Army regs say it a little differently, but say the same thing:
From Army Regulation 600-8-104, Army Human Resources Records Management, Chapter 5, Section 5-2, subsection b:
“Home of record can only be changed if there is a break in service of more than 1 day or to correct an error. Any
change in connection with a break in service must be recorded on the DD Form 4 at reenlistment.”
Military spouses do not have a home of record.
State of Legal Residence
Your state of legal residence, or domicile, is the state where you’ve demonstrated that you have permanent ties. In theory, this is supposed to be the place where the service member thinks of as home, the state where you intend to live after you leave the military. In reality, it is probably the most tax-friendly state you’ve ever been stationed. However, understanding what it is supposed to be helps to understand how the process works. The steps you take to obtain and preserve legal residency in a state are the same steps you would take with a state that you think is home and you intend to return to after you leave the military.
For example, in the state you consider home, you would:
- maintain your driver’s license,
- register your vehicle,
- register to vote,
- actually vote,
- pay state tax,
- reflecting that state in your will,
- any other actions that could be construed as showing intent to remain a resident of a state.
Intent is one of the most misunderstood and difficult parts of legal residency or domicile. While there are a number of steps that you can take to demonstrate your intent, it is the cumulative effect of these small things that adds up to the whole of determining legal residency or domicile.
If you’re claiming a previous state of legal residence while physically residing in a new place, you have to be careful not to do anything that might give the impression that you’ve actually become a legal resident of the new state. Just as no single action will establish your legal residence in a state, no single action automatically makes you NOT a resident of that state. For example, if your PCS to Ohio, military spouses are required to obtain an Ohio driver’s license. That doesn’t automatically mean you give up your legal residence in a prior state. Rather, you would have to take several actions that demonstrate that you are changing your legal residence.
In general, though, it’s good to keep as many things as possible tied to your state of legal residence. While it can often seem easier to just switch things around as you move, it is important to thoughtful about the actions that you take so that you clearly demonstrate your state of legal residence. It’s hard to defend your intent when you have a driver’s license from one state, a vehicle registration in a second state, you’re registered to vote in a third state, and you’re claiming a homestead tax exemption in a fourth state.
While states are generally more generous with military members than with the civilian populations, state can and do pursue military members who are acting as if they live in one state but claiming that they live in another state. It can be an expensive and time-consuming battle, and you won’t win if you have taken actions that make your intent unclear.
Being able to claim a state of legal residence that isn’t the state in which you actually live is governed by federal and state laws. The Servicemembers Civil Relief Act (SCRA) is the law that gives military members certain protections so that they are not unnecessarily burdened by the requirements of military service, including the right to continue voting and paying taxes in a the state they call “home.” The Military Spouses Residency Relief Act (MSRRA) amends the SCRA to extend some of the voting and tax protections of the SCRA to military spouses. While the MSRRA is its own legislation, it is legislation that changes the SCRA, so the SCRA is the actual law that covers this stuff for both the service member and the spouse.
The SCRA permits a military member to retain properly-obtained state of legal residence even though they’ve moved to another state on PCS orders. SCRA does not permit a military member to pick any state or regain legal residency in a state where they lived previously.
The MSRRA amendments to the SCRA provide similar protections to spouses when it comes to voting and taxes. It can get a little confusing because while states must provide at least as much protection as the federal law, many states provide military spouses with more protections, and that erroneously gets chalked up to MSRRA, and then everyone is talking about different things and thinking they’re talking about the same thing, and folks get bad information.
Under the federal law (SCRA/MSRRA), military spouses may retain a properly-obtained state of legal residence, even if they move due to Permanent Change of Station (PCS) orders, as long as they share the same state of legal residence as their active duty spouse and they are living with the active duty member as the direct result of the PCS orders.
SCRA/MSRRA does not permit a military spouse to obtain legal residence in their spouse’s legal residence without actually living there, and it does not permit military spouses to claim legal residence in a state that is different from the active duty member’s state of legal residence. As the law currently stands, military couples hoping to claim protections for the spouse must either both establish legal residence in a state where they are living or get PCS orders to the state where the service member claims residency, so that the spouse may establish residency there, too.
Important Update: The Veterans Benefits and Transition Act of 2018 allows military spouses to use the state of legal residence of their active duty husband/wife for purposes of taxation and voting. However, this law does not say anything about actually establishing legal residence there.
However, it is very important to understand how state laws may be more generous that the federal law. When physically residing in some states, the state law may allow that spouse to claim legal residence in a previously-established state of legal residence even if it isn’t the same state as the military member. Separately, some state laws may permit you to obtain residence without actually living there. But neither of these things are protections under the federal laws.
Changing Your State of Legal Residence
You may change your legal residence whenever you meet the requirements to establish residency in a new state. While every state is slightly different, you generally must:
- Be physically present in the new state, and
- Demonstrate that you intend to make that location your permanent home; and
- Demonstrate that you intend to abandon your old state of legal residence.
You demonstrate that you intend to make a state your new permanent home by doing the things listed above: registering to vote (and actually voting), obtaining a driver’s license, registering your vehicles, etc.
Once you’ve taken the steps to properly establish a new domicile, you can change your declared state of legal residence using DD Form 2058, State of Legal Residence Certificate. This will change the state listed on your Leave and Earnings Statement and W-2 tax statement, and DFAS will start withholding taxes for that state, if required. Remember that naming a state on the form does not make you a legal resident of that state – you still need to take all the other actions required.
State of Legal Residence for a Specific Purpose
Another thing that is confusing is that sometimes you are considered a legal resident of a state for a particular purpose without giving up your actual state of legal residence. Examples might be college tuition or jurisdiction for divorce. Just keep in mind that being considered a legal resident for a specific purpose does not mean that you’ve become a legal resident if you haven’t done anything else to make it happen.
When Other Folks Mis-Use The Terms
The last warning on this topic is that sometimes you’ll run into individuals, government entities, and even laws that use the terms incorrectly. For example, a state may require that you be a legal resident in order to qualify for in-state tuition when you live elsewhere, but they may say that their state needs to be your “home of record.” This can cause a lot of difficulty. You’ll just have to be patient and ask specific questions to find out exactly what they’re trying to say.
In many conversations, you can use home of record and state of legal residence interchangeably, and it won’t make a difference. It’s still a bad idea, though, because you can’t always tell ahead of time which conversations need to have the right concept, and it just confuses people. Understanding the two concepts and using them accurately will prevent misunderstandings that can cost you time and money.
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