RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 June 2007
      DOCKET NUMBER:  AR20070000602


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Sherri V. Ward                |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Mr. David W. Tucker               |     |Member               |

      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 discharge be upgraded to fully
honorable.

2.  The applicant states that he needs an honorable discharge so he can get
back in the military.

3.  The applicant provides a DD Form 293 (Application for the Review of
Discharge from the Armed Forces of the United States) and a copy of his
original DD Form 214 (Certificate of Release or Discharge from Active
Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 5 January 2001.  The application submitted in this case is
dated 29 December 2006.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 16 February 1996.  He was
promoted to specialist, E-4 on 1 August 1997.  He was honorably discharged
on 16 February 1998 and immediately reenlisted on 17 February 1998.

4.  On 27 October 1999, the applicant’s commander initiated action to
separate the applicant for misconduct/conviction by civil court (violation
of a restraining order on or about 18 March 1999 and commission of domestic
violence and harassment on or about 4 November 1998) with a general under
honorable conditions discharge.  The applicant consulted with legal counsel
and voluntarily waived consideration of his case by an administrative
separation board contingent upon receiving a characterization of service of
no less than a general discharge under honorable conditions.

5.  The applicant’s intermediate commanders recommended approval of the
separation action with a discharge under other than honorable conditions.
On    1 December 1999, the applicant was notified to appear before an
administrative
separation board.  On 15 December 1999, he again consulted with legal
counsel and voluntarily and unconditionally waived consideration of his
case by an administrative separation board.

6.  On 17 December 1999, the appropriate authority waived further
rehabilitative efforts and directed that the applicant be discharged with a
discharge under other than honorable conditions.

7.  On 5 January 2000, the applicant was discharged, with a discharge under
other than honorable conditions, under the provisions of Army Regulation
  635-200, chapter 14, section II for misconduct.  He had completed 3
years,       10 months, and 20 days of creditable active service with no
lost time.  He was given a reentry (RE) code of 4.

8.  On 25 June 2004, the Army Discharge Review Board (ADRB) partially
approved the applicant's petition to upgrade his discharge by upgrading it
to general under honorable conditions after finding that his misconduct was
mitigated by circumstances surrounding his deployments and the overall
length and quality of his service.

9.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel for misconduct.  That regulation provides,
in pertinent part, for the elimination of enlisted personnel for misconduct
when they are initially convicted by civil authorities, or action taken
against them which is tantamount to a finding of guilty, if a punitive
discharge would be authorized for the same or a closely related offense
under the Manual for Courts-Martial, 1984, as amended, or the sentence by
civil authorities includes confinement of 6 months or more, without regard
to suspension or probation.

10.  Army Regulation 635-200, paragraph 3-7a provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

11.  Pertinent Army regulations provide that prior to discharge or release
from active duty individuals will be assigned RE codes based on their
service records or the reason for discharge.  Army Regulation 601-210
covers eligibility criteria, policies and procedures for enlistment and
processing into the Regular Army
(RA) and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes
basic eligibility for prior service applicants for enlistment.  That
chapter includes a list of armed forces RE codes, including RA RE codes.

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

13.  Army Regulation 600-20 (Army Command Policy), paragraph 4-23 covers
the 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 (Title 18, U. S. Code, section 922), 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.

14.  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.

15.  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.

16.  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.

17.  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.

18.  Paragraph 4-23d (8) of Army Regulation 600-20 states that 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.

19.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the ABCMR has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The date of the application to the ABCMR is within three years of the
decision of the ADRB; therefore, the applicant has timely filed.

2.  The applicant was discharged on 5 January 2000 with a discharge under
other than honorable conditions.  The reason for his discharge was
misconduct due to his conviction by civil court for violation of a
restraining order and for commission of domestic violence and harassment.

3.  On 25 June 2004, the ADRB partially approved the applicant's petition
to upgrade his discharge by upgrading it to general under honorable
conditions after finding that his misconduct was mitigated by circumstances
surrounding his deployments and the overall length and quality of his
service.  Although his service otherwise appears to have been good, the
misconduct for which he was separated does not warrant further upgrading
his discharge to fully honorable.

4.  In addition, it appears the applicant currently has a nonwaivable
disqualification for enlistment.  Although not all the details of his civil
conviction for commission of domestic violence are known, it appears the
Lautenberg Amendment will prohibit his enlistment no matter what type of
characterization of service he is given.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__svw___  __rtd___  __dwt___  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.




                            __Sherri V. Ward______
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070000602                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070621                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |20000105                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 14                       |
|DISCHARGE REASON        |A61.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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