IN THE CASE OF:	   

		BOARD DATE:	  21 May 2015

		DOCKET NUMBER:  AR20150005667 


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 removal of the felony assault charge from his official military personnel file (OMPF), listed under criminal records check.  

2.  The applicant states the charge has been cleared and deleted from his civilian criminal record.  He had it expunged and cleared of any existence.  Prior to enlisting in the Army in 2007, he was on probation for a felony assault charge.  Upon completion of his probation, the charges were dropped and the entire charge was dismissed.  He entered the Army immediately after his dismissal from probation but too soon for this charge to come off his records and thus it showed up in his OMPF.  He submits a Federal background check reflecting a clear and empty criminal record and requests that the charge be removed from his OMPF. 

3.  The applicant provides a criminal record from the Federal Bureau of Investigation (FBI). 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he processed for enlistment into the Regular Army at the Butte, MT, Military Entrance Processing Station in January 2007.  He disclosed a prior felony charge of assault and admitted on a statement to an assault charge in which his son was the victim.  

2.  As required by regulation, in order to determine eligibility for a prospective enlistment in the Armed Forces, his recruiter submitted, and the applicant consented to the submission of, multiple DD Forms 369 (Police Record Check) to the city, county, and state for a background records check.  The record check confirmed what the applicant disclosed during his enlistment process.  He had a prior assault charge in which his son was the victim.  

3.  His DD Form 1966/1 (Record of Military Processing) shows in Section VI (Remarks) a moral waiver was approved by the Deputy Commanding General, U.S. Army Recruiting Command (USAREC), to allow the applicant to enlist.  It shows: 

An exception approved by Headquarters (Name, Date, and Control Number) with the comments: Admittance of an assault charge in which his son was the victim.  This charge, years later, was then dismissed. Even after qualified individuals identified this as a non-waivable Lautenberg issue the recruiter of credit still insists on it being processed. Request USAREC Lautenberg review.  

4.  Following approval of a moral waiver, the applicant enlisted in the Regular Army for 4 years on 23 January 2007.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 91E (Metal Worker/Machinist). 

5.  He was promoted to sergeant/E-5 in November 2010 and he reenlisted for a 5-year term on 12 October 2012.  He is currently assigned to Fort Riley, KS. 

6.  His OMPF contains his initial enlistment contract with allied documents that include his: 

* DD Form 4 (Enlistment/Reenlistment Document)
* DA Form 3286 (Statement of Enlistment)
* DD Form 1966 series (Record of Military Processing)
* Standard Form 86 (Security Clearance Application/Questionnaire)
* DD Form 369 (Police Record Check)
* DD Form 2366 (Montgomery GI Bill)

7.  The applicant provides an FBI record check which shows on the basis of the information furnished, a check of the Montana Criminal History Records System disclosed that either the applicant has no prior criminal record or that, if in fact such record exists, it does not meet the criteria for dissemination under Montana code. 

8.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria governing the enlistment of persons, with or without prior service, into the Regular Army, the Army Reserve, and the Army National Guard.  Chapter 4 provides for waivable and non-waivable enlistment criteria.  

	a.  Paragraph 4-2 (Conduct and administrative disqualifications) states suitability for enlistment must be determined.  Applicants with a criminal history (regardless of disposition) or questionable conduct character, but because of dismissed charges, plea bargains, or release without prosecution, must have a suitability review for determination of enlistment along with a commander’s list of recommendation.  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.  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, is considered misconduct that requires review and a waiver (Commanding General, USAREC). 

	b.  Paragraph 4-3 states applicants applying for waiver of conviction or other adverse disposition will provide evidence of satisfactory rehabilitation and documents to support the waiver request. 

	c.  Paragraph 4-4 (Listings of disqualifications), when processing conduct waivers, all offenses must be listed.  If multiple charges arise out of a single act that results in a civil court conviction or other adverse disposition, all charges will be considered for enlistment eligibility purposes.

	d.  Paragraph 4-6 provides for civil court convictions/dispositions conduct waivers (other than major misconduct).  A waiver is required for civil conviction and a request for moral waiver should be addressed to the appropriate authority. 

9.  Army Regulation 600-8-104 (Army Military Human Resources Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the Army Military Human Resource Record (AMHRR).  The Army Personnel Records Division (APRD) updates the list of Authorized Documents for filing in the AMHRR quarterly.  The new list of Authorized Documents will supersede the list in Table B-1, Appendix B of Army Regulation 600-8-104.  The APRD update, dated 15 January 2015, shows:

* DD Form 4, file in the service folder; can be joined with enlistment documents and filed as a DD Form 4 Packet
* DD Form 1966, file in the service folder; file all pages when accompanied by correspondence showing final determination
* DD Form 369, file in the service folder, file only when check is part of enlistment, reenlistment, or appointment packet; can be joined with enlistment documents and filed as a DD Form 4 Packet
* DA Form 3286, file in the service folder; will be joined with enlistment documents and filed as a DD Form 4 Packet

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the Regular Army in January 2007.  During his enlistment process, he disclosed a prior assault charge involving his son.  A moral waiver was accordingly requested and was approved by USAREC.  The prior assault, moral waiver, and the fact that the charge was later dismissed are documented in the Remarks section of the applicant's DD Form 1966.  

2.  Applicants with a criminal history (regardless of disposition) or questionable conduct or character – even in cases with dismissed charges, plea bargains, or release without prosecution – must have a suitability review for determination of eligibility for enlistment.  

3.  The DD Form 1966 is part of the enlistment packet and is properly filed together with other allied documents, including the DD Form 4, DA Form 3286, Standard Form 86, and DD Form 369, in the service folder of the applicant's OMPF.  There is no evidence that his enlistment packet is in error or reflects untrue information.  

4.  There is no evidence of any violation of any of his rights.  The Army has an interest in maintaining the accuracy of its records.  The information in those records must reflect the conditions and circumstances that existed at the time the records were created.  

5.  Removing or altering his enlistment packet would alter facts that existed at the time of his enlistment.  He has provided insufficient evidence or argument to form a basis for removing this enlistment packet or any of its components from his OMPF.







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.



      _______ _  _ 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)                                         AR20150005667



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ABCMR Record of Proceedings (cont)                                         AR20150005667



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