IN THE CASE OF:	

		BOARD DATE:	       9 JULY 2009

		DOCKET NUMBER:  AR20090003071 


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, in effect, removal of the Determination of Eligibility Memorandum-Felony Waiver, and allied documents from his official military personnel file (OMPF). 

2.  The applicant states his military records incorrectly suggest that he had been charged with a felony.  He adds that he had been charged with three misdemeanor charges, two of which have been ordered expunged and sealed by a court of record in the State of Illinois, while the third charge was not even filed by the State's Attorney.  He adds that after reviewing his OMPF, he learned that it contains numerous derogatory records and unjustly portrays his moral character.  He also states that his decision to slap his domestic partner at the time was not a random incident of abuse; it was rather prompted by extreme provocation as the mother of his daughter knowingly and intentionally left his daughter in the care of a known convicted child molester.  He further states that he would like to note to the Board that he was a victim of her physical abuse on numerous occasions and never hit her back.  He concludes that Illinois State law permits him, as an applicant for any job, to state that he had not been charged with a crime if a record has been expunged and sealed, but requires that he grant access to his OMPF as a condition of employment.

3.  The applicant provides copies of two orders to expunge and seal, dated 19 April 2002, and a copy of an order of dismissal, dated 10 December 1996, all issued by the Circuit Court of the Second Judicial Circuit, Franklin County, IL.


CONSIDERATION OF EVIDENCE:

1.  As part of determining his eligibility as a prospective enlistee in the armed forces, the applicant disclosed that he had a prior police record for various civil offenses including shoplifting, domestic battery, battery, and other offenses.  Accordingly, during the period from 16 October 2001 through 4 January 2002, he voluntarily consented to the collection of information on a DD Form 369 (Police Record Check) at the Marion, IL, U.S. Army Recruiting Station.

2.  The applicant's records further show that he also consented to contacting his probation officer and/or court records in order to determine his moral qualification for enlistment.

3.  After collecting all necessary information, the recruiting station initiated a moral waiver worksheet listing the applicant's various offenses from 1992 through 2002, including two instances of speeding (fine); seat belt violation (fine); violation of protection order, battery, and failure to appear (all dismissed); domestic battery (reduced to battery, fine); driving too fast (warning); illegal transportation of alcohol (fine); and shoplifting (release to parents).  It was determined that the applicant required a moral waiver for enlistment.

4.  In October, November, and December 2001, and in January 2002, the applicant was interviewed by various officers of the recruiting station and/or recruiting battalion to further determine his moral eligibility for enlistment.  A determination of eligibility-felony and dependency waiver request was ultimately forwarded to the U.S. Army Recruiting Command (USAREC), Fort Knox, KY.

5.  On 23 March 2002, the deputy commanding general approved a felony waiver for the purpose of enlistment.

6.  On 3 April 2002, the applicant executed a 4-year enlistment in the Regular Army.  He held military occupational specialty 25Q (Multichannel Transmission Operator/Maintainer) and attained the rank of sergeant.  He was honorably released from active duty on 15 May 2006 and transferred to the U.S. Army Reserve Control Group (Reinforcement) for completion of his military service obligation.

7.  The applicant's enlistment contract and allied documents, including the approved waiver, are filed in the performance section of his OMPF.

8.  The applicant submitted a copy of a court order issued by the Circuit Court of the Second Judicial Circuit, Franklin County, IL, on 10 December 1996, dismissing the charges of his domestic battery and violation of an order and copies of two orders, dated 19 April 2002, issued by the same Court to expunge and seal the records pertaining to the charges.

9.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the OMPF.  Chapter 2 of this Army regulation provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF.  Table 2-1 (Composition of the OMPF) of this Army regulation shows that a Soldier's DD Form 4 series (Enlistment/Reenlistment Document - Armed Forces of the United States) is filed along with allied documents in the service computation (SC) portion of the Service (S) section of the OMPF.  The S section is the OMPF section where general information and service data are filed.  The section is divided into a service computation (SC) section and a general administration (GA) section.  Documents will be placed in the SC and GA sections as they are received by the custodian.  Documents filed on this fiche are those that must be permanently kept to record a Soldier’s military service, manage a Soldier’s career, and/or protect the interests of both the Soldier and the Army.

10.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) governs eligibility, criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment.  Chapter 4 of this regulation contains waiver and nonwaiver enlistment criteria and prescribes procedures to initiate and process a request for waiver to meet basic enlistment qualifications.  Paragraph 4-2 states, in pertinent part, that commanders at all levels determine if waiver requests warrant favorable consideration through questioning, investigating, counseling, and gathering proper documents and waiver request information.  Applicants who do not meet established enlistment standards are not eligible for enlistment unless a waiver is authorized.  The burden is on the applicant to prove to waiver authorities that he or she has overcome their disqualifications for enlistment and that their acceptance would be in the best interests of the Army.  Waiver authorities will apply the "whole person" concept when considering waiver applications.  Suitability will be determined for applicants with a criminal history (regardless of disposition) or questionable moral character, but because of dismissed charges, plea bargains, or release without prosecution, must have a suitability review for determination of enlistment.  Reviewer will determine if a personal interview with the applicant is required, and, if so, may be accomplished telephonically.  Approval will be annotated on the DD Form 1966 remarks section with a review date, name, and title of reviewer.

11.  Suitability review will be conducted on the following charges prior to any moral waiver processing on all applicants (the appropriate review level is also noted):  one or more serious offense, regardless of disposition, six or more minor traffic convictions where the fine was $250 or more per offense, five or more minor non-traffic charges, two or more misdemeanor charges, combination of four or more minor non-traffic or misdemeanor charges, one serious criminal misconduct charge, regardless of disposition, and any offenses requiring a suitability review, domestic battery/violence charge, includes but is not limited to, charge(s) of domestic violence, assault, simple assault, assault and battery, battery, assault with the intent to commit bodily harm, assault on a person, or abuse by an applicant against his/her parent, step-parent, sister, or brother, regardless of disposition, recruiting battalion leadership will forward all such cases to USAREC waivers for review if determined that they fall under the Lautenberg Amendment; domestic battery/violence charge as defined under Lautenberg law, regardless of disposition.

12.  Paragraph 4-7 of this regulation provides for serious criminal misconduct.  It states, in pertinent part that a waiver is required for any applicant who has received a conviction or other adverse disposition for a serious criminal misconduct offense.  The approval authority is the Commanding General, USAREC.  The Army considers domestic battery/violence, considered under the Domestic Violence Amendment to the Gun Control Act of 1968 (Title 18, U.S. Code, section 922) (Lautenberg Amendment), as a serious criminal misconduct offense.  For the purpose of this paragraph, a crime of domestic violence is 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, parent, or guardian of the victim; by a person with whom the victim shares a child in common; by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian; or by a person who was similarly situated to a spouse, parent, or guardian of the victim.  Persons who are similarly situated to a spouse include two persons who are residing at the same location in an intimate relationship with the intent to make that place their home.

13.  Paragraph 4-12 of this regulation provides for court disposition definitions.  It states, in pertinent part, that applicants who have entered a plea of nolo contendere that was accepted by the court despite later processing in the same case to permit dismissal, expungement, amnesty, pardon, or clemency based on any of the following are considered to have a conviction: absence of later violations, evidence of rehabilitation, satisfactory completion of a period of probation or parole, and any other legal appeal that does not change the original finding on its own merit.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the Determination of Eligibility Memorandum-Felony Waiver, and allied documents, should be removed from his OMPF.

2.  The evidence of record shows that the applicant willingly and voluntarily consented to the collection of information that determined his moral qualification for enlistment.  Of all disclosed charges, the applicant was determined to have needed a waiver for his 6 June 1996 domestic battery (reduced to battery) conviction and, despite a later dismissal of this charge, the Army considered this charge a serious criminal misconduct (a felony) that required a moral waiver which was requested and ultimately approved.  Based on this waiver, the applicant was allowed to enlist.

3.  The evidence of record further shows that the applicant's enlistment document together with all allied documents including his approved waiver are correctly filed in the proper section of his OMPF.  The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

4.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, he is not entitled to 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.



      __________XXX_______________
                 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)                                         AR20090003071



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ABCMR Record of Proceedings (cont)                                         AR20090003071



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