RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          8 November 2005
      DOCKET NUMBER:  AR20050003129


      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.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Wanda L. Waller               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane Armstrong               |     |Member               |
|     |Ms. Delia Trimble                 |     |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, in effect, that his discharge under other than
honorable conditions be upgraded to honorable, his rank be restored to
sergeant, that all documents pertaining to his 1987 discharge for
misconduct due to civilian conviction be expunged from his records, and
"anything the Army sees fit."

2.  The applicant states he was exonerated of all civil charges for which
he was discharged from the Army in 1987.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty); two articles; a letter, dated 16
February 2005, from a Member of Congress; and a Nolle Prosequi [document
dismissing all charges].

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted on 6 July 1978 for a period of 4 years.  He
successfully completed basic combat training, advanced individual training,
and basic airborne training in military occupational specialty 62B
(construction equipment repairer).  He reenlisted on 25 January 1982 for a
period of 3 years.  He attained the rank of sergeant on 1 August 1982.

2.  On 15 March 1984, the applicant was tried in Superior Court, Cambridge,
Massachusetts and convicted of aggravated rape, assault with intent to
rape, and assault and battery by means of a dangerous weapon.  He was
sentenced to 8 to 20 years.

3.  On 19 April 1984, the applicant was again tried in Superior Court,
Cambridge, Massachusetts and convicted of assault and battery by means of a
dangerous weapon, assault and battery, and aggravated rape.  The charges of
assault and battery by means of a dangerous weapon and assault and battery
were placed on file.  He was sentenced to life imprisonment.

4.  On 6 June 1984, the applicant was notified of his pending separation
under the provisions of Army Regulation 635-200, chapter 14, for misconduct
due to conviction by civil authorities.

5.  On 25 June 1984, the applicant requested consideration of his case
before a board of officers, requested representation by counsel, and
elected not to submit a statement on his own behalf.

6.  On 27 September 1984, a board of officers convened to determine if the
applicant should be separated from the military service for misconduct due
to conviction by civil court.  The board found that the applicant was not
suitable for further retention in the military service because he had been
convicted by a civilian court and the sentence imposed included confinement
for six months or more.  The board recommended that he be eliminated from
the service for misconduct with the issuance of a discharge under other
than honorable conditions.

7.  On 17 November 1984, the separation authority approved the
recommendation for discharge and directed the issuance of a discharge under
other than honorable conditions.

8.  The applicant was reduced in rank from sergeant to private effective
17 November 1984.

9.  Accordingly, the applicant was discharged under other than honorable
conditions on 4 March 1987 under the provisions of Army Regulation
635-200, chapter 14, for misconduct due to civilian conviction.  He had
served
5 years, 4 months, and 29 days of creditable active service with 1182 days
of lost time due to confinement.

10.  On 3 April 2003, after serving 19 years in a state prison, DNA
evidence exonerated the applicant of the civilian charges.

11.  Apparently, the applicant's separation was delayed for an unknown
reason.

12.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, and convictions by civil authorities.
Action will be taken to separate a member for misconduct when it is clearly
established that rehabilitation is impracticable or is unlikely to succeed.
 A discharge under other than honorable conditions is normally appropriate
for a Soldier discharged under this chapter.  However, the separation
authority may direct a general discharge if such is merited by the
Soldier’s overall record.

14.  Army Regulation 635-200, paragraph 3-7, 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 (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  In April 2003, the applicant was exonerated of all civilian charges for
which he was discharged from the Army in 1987.  Since the applicant was
discharged from the Army based solely on his civilian conviction, his
discharge under other than honorable conditions should be voided.

2.  The applicant’s enlistment would not have expired until 24 January
1985.  There is good reason to conclude that, but for the civilian
conviction, he would have remained on active duty to complete that
enlistment.  In addition, for an unknown reason the Army did not discharge
him until 4 March 1987, over 2 years after his separation was approved.  It
appears appropriate and proper to restore his rank of sergeant, to grant
him full active duty credit through 4 March 1987 and to issue him an
Honorable Discharge Certificate effective 4 March 1987 by reason of
Secretarial Authority.

3.  The continued existence of his administrative discharge packet and
related documents in his service personnel records create an injustice
which should be corrected.  Therefore, all documents pertaining to the
applicant's discharge for misconduct due to civilian conviction filed in
his military records should be expunged.

BOARD VOTE:

SK_____  _DA____  _DT_____  GRANT RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected:

      a.  by restoring his rank of sergeant and by showing that he
continued to serve on active duty until 4 March 1987, when he was separated
from the service in the rank of sergeant with an Honorable Discharge
Certificate, by reason of Secretarial Authority, under the provisions of
chapter 5, Army Regulation
635-200;

      b.  by returning to him all pay and allowances, benefits and property
he lost as the result of his confinement and discharge under other than
honorable conditions; and

      c.  by deleting from his military personnel records any and all
references to his discharge under the provisions of Army Regulation 635-
200, chapter 14, for misconduct due to civilian conviction.



            ___Stanley Kelley_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050003129                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051108                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19870304                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 14                   |
|DISCHARGE REASON        |Misconduct due to Civilian Conviction   |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |129.0500                                |
|3.                      |128.1400                                |
|4.                      |126.0400                                |
|5.                      |                                        |
|6.                      |                                        |


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