RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 May 2007
	DOCKET NUMBER:  AR20060009074 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  


x
	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his Reenlistment Eligibility (RE) code be changed from RE-4 to RE-1.

2.  The applicant states he was incorrectly found guilty of the Lautenberg Amendment, Title 18 United States Code, section 921(a)(33)(A)(ii).

3.  The applicant provides his NGB Form 22 (National Guard Bureau - Report of Separation and Record of Service); a letter from his lawyer, dated 9 February 2006; an affidavit from his ex-wife, dated 10 February 2006; and a decision from the Appeals Court of Massachusetts in the case of Commonwealth vs. Musgrave.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Massachusetts Army National Guard (MAARNG) on 11 June 1990.  He was discharged from the MAARNG on 15 November 1992 under the provisions of National Guard Regulation (NGR) 600-200, paragraph 
8-27g for unsatisfactory participation.  On the following date, he was transferred to the U.S. Army Reserve Control Group (Annual Training).

2.  The applicant enlisted in the MAARNG again on 22 March 1993.  He was discharged from the MAARNG on 9 July 1994 under the provisions of 
NGR 600-200, paragraph 8-27g for unsatisfactory participation.  On the following date, he was transferred to the U.S. Army Reserve Control Group (Annual Training).  He was discharged from the U.S. Army Reserve on 28 July 1998.

3.  The applicant enlisted in the Vermont Army National Guard (VTARNG) on 13 September 1998 for a period of three years.  His enlistment was later extended for three years.  

4.  On 8 July 2004, the applicant declined to extend his reenlistment within 90 days of his expiration of term of service (ETS) date of 13 September 2004.

5.  The applicant was discharged from the VTARNG on 12 March 2005 under the provisions of NGR 600-200, paragraph 8-26i at his ETS.  His NGB Form 22 shows the entry “Lautenberg” in item 18 (Remarks).

6.  His NGB Form 22 for the period ending 12 March 2005 shows his RE code as RE-4.

7.  The applicant provided a letter from his lawyer, dated 9 February 2006.  The lawyer indicated that the applicant was discharged from military service in 2005 due to a prior conviction in February 1995 and a plea of guilty in June 1995 for misdemeanor offenses in Massachusetts.  He indicated that the military determined that one or both of these misdemeanors constituted a “misdemeanor crime of domestic violence” under the Lautenberg Amendment to the Gun Control Act of 1968, thereby disqualifying him from possessing a military-issued firearm and deployment overseas.  The lawyer further indicated that the military’s determination that the applicant’s 1995 misdemeanor convictions constituted a “misdemeanor crime of domestic violence” under the Lautenberg Amendment was an error.  

8.  The applicant’s lawyer indicated that, under Massachusetts law, the elements required to be convicted of misdemeanor Assault can be the following:  (1) intent by the defendant to cause fear or apprehension in another by menacing behavior, and (2) putting the other in fear of immediate bodily harm.  Massachusetts law does not require “the use or attempted use of physical force or the threatened use of a deadly weapon.  The lawyer indicated that the applicant was convicted in February of assault and disturbing the peace.  Although the applicant was originally charged with assault and battery, he was convicted only of assault.  Importantly, his lawyer states that his wife has signed an affidavit verifying that the applicant’s actions consisted of simply verbally threatening, her, and that he did not use or attempt to use physical force of threaten her with a deadly weapon.

9.  RE code 4 applies to persons not qualified for continued Army service and the disqualification is not waivable.

10.  Army Regulation 600-20 (Army Command Policy), paragraph 4-23 covers Domestic Violence Amendment to the Gun Control Act of 1968.  This regulation states that the Domestic Violence Amendment to the Gun Control Act of 1968 (Section 922, Title 18, United States Code), the Lautenberg Amendment, makes it unlawful for any person to transfer, issue, sell or otherwise dispose of firearms or ammunition to any person whom he or she knows or has reasonable cause to believe has been convicted of a misdemeanor crime of domestic violence.  It is also unlawful for any person who has been convicted of a misdemeanor crime of domestic violence to receive any firearm or ammunition that has been shipped or transported in interstate or foreign commerce.  This chapter applies to all Soldiers throughout the world, including those in hostile fire areas.

11.  Paragraph 4-23b(1) of Army Regulation 600-20 defines a crime of domestic violence as an offense that involves the use or attempted use of physical force, or threatened use of a deadly weapon committed by a current or former spouse. 
12.  Paragraph 4-23b(2) of Army Regulation 600-20 states, in part, that a qualifying conviction is a state or federal conviction for a misdemeanor crime of domestic violence.  A person will not be considered to have a qualifying conviction unless the convicted offender was represented by counsel or knowingly and intelligently waived the right to counsel, and, if entitled to have the case tried by a jury, the case was actually tried by a jury, or the person knowingly and intelligently waived the right to have the case tried by a jury; and, the conviction has not been expunged or set aside, or the convicted offender has not been pardoned for the offense, or had civil rights restored; unless the pardon, expungement, or restoration of civil rights provides that the person may not ship, transport, or receive firearms.  

13.  Paragraph 4-23c(8) of Army Regulation 600-20 states that domestic violence is incompatible with Army values and will not be tolerated or condoned.  However, Soldiers will be given a reasonable time to seek expungement of or to obtain a pardon for a qualifying conviction and may extend up to one year for that purpose.

14.  Paragraph 4-23d(1) of Army Regulation 600-20 states that enlistment of applicants with a qualifying conviction is prohibited and no waivers will be approved.  Soldiers with a qualifying conviction will be barred from reenlistment and are not eligible for the indefinite reenlistment program. 

15.  Paragraph 4-23d(8) of Army Regulation 600-20 states all Soldiers known to have, or whom their commander has reasonable cause to believe have, a qualifying conviction are not mobilization assets and are nondeployable for missions that require possession of firearms or ammunition.

16.  Massachusetts General Laws Chapter 127, section 152 provides that the governor is authorized, upon the advice and consent of the governor’s counsel, to grant a pardon to an individual who is convicted of a felony or misdemeanor.  The individual must file a written petition with the Massachusetts Parole Board, which acts, pursuant to 120 Code of Massachusetts Regulations 900.00, as the Advisory Board of Pardons to the Governor.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged from the VTARNG on 12 March 2005 at his ETS.  

2.  The applicant’s NGB Form 22 shows he was assigned an RE code of RE-4 at the time of his discharge.  His NGB form 22 shows the entry “Lautenberg” in the Remarks section.  
3.  The evidence of record shows the applicant was convicted in February 1995 and June 1995 of misdemeanor offenses relating to his assaulting his then spouse (now former spouse) and violating a protective order restraining him from contact with her.  It appears his chain of command determined that these two offenses rendered the applicant ineligible for reenlistment and/or voluntary indefinite status because they fell under the Domestic Violence Amendment to the Gun Control Act of 1968, better known as the Lautenberg Amendment.  

4.  The RE code of "4" issued to the applicant is not waivable and does not allow him to continue Army service.

5.  The contentions of the applicant’s lawyers have been carefully considered.  However, after careful consideration and comparison of both the Lautenberg Amendment definition and the Massachusetts elements, it is clear that they are not necessarily mutually exclusive, contrary to his lawyer’s assertion.  For example, the attempted use of physical force (i.e., perhaps in the form of menacing, threatening behavior) by a defendant, without actual physical contact, could be intended by the defendant to cause fear in the victim.  At the same time, his attempted use of physical force could put the victim in fear of immediate bodily harm.  So, it is possible for an assault conviction in the State of Massachusetts to qualify  as a crime of domestic violence under the Lautenberg Amendment.  

6.  The applicant did not provide the official state court documents showing the offenses of which he was convicted.  The affidavit provided by the applicant’s former spouse is not helpful.  Under the applicable law, only the offense of which the applicant was actually convicted are relevant under the Lautenberg Amendment.  This provision of the law may even have been intended to guard against subsequently recanting victims.  

7.  The applicant has failed to show through the evidence submitted or the evidence of record that the reentry code issued to him was administratively incorrect, in error or unjust.  

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.




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          CHAIRPERSON




INDEX

CASE ID
AR20060009074
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070517
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
100.0300
2.

3.

4.

5.

6.