PART II - APPLICATION DATA

      (Note: Part I deleted under the Privacy Act on Reading Room copy)

1.  Character of Discharge:  Under Other Than Honorable Conditions

2.  Date of discharge (or REFRAD):  950113

3.  Authority for separation:

      a.  Regulation:  Chapter 14, Section II, AR 635-200

      b.  Reason:  Misconduct

4.  Prior review(s):  NONE



                         PART III - SERVICE HISTORY

                 SECTION A - Period of Service Under Review

1.    Service data:                              2.  Awards and
    decorations:
                                           BSM            NCOPDRw/Num3
    a.  Period entered for:  4 Years               ARCOM(3d Awd)  AFEM
    b.  Entry date:  910816                        ARCOMw/Vdevice
    SWASMw/3BSS
    c.  Age:  35 Years   DOB:  560310              AAM(3rd Awd)    KLM


    d.  Educational level:  15 Yrs                 GCMDL          OSR


    e.  Aptitude area score:                       NDSM
          GT:  121                               3.  Highest grade
achieved:
    f.  Length of Service:                         E7
          3 Year(s)  4 Month(s)  27 Day(s)


                                               4.  Performance evaluations:

                                                   See OMPF

                         PART III - SERVICE HISTORY
           SECTION A - Period of Service Under Review - Continued

5.  Periods of unauthorized absence:

    Status       Inclusive dates
      AWOL

      Mil conf

      Civil conf   931215-950113;


      Other


6.  Nonjudicial punishment:  NONE

      Date  Offense(s)



7.  Court-Martial data:  NONE

      a.  SCM:
            Date   Offense(s)


      b.  SPCM:
            Date   Offense(s)


      c.  GCM:
            Date   Offense(s)


8.    Remarks:  NONE


                       SECTION B - Prior Service Data


Other discharge(s):

      Service    From  To    Type Discharge
      RA    750516     771129     Honorable
      RA    771130     810830     Honorable
      RA    810831     870823     Honorable
      RA    870824     910815     Honorable




                         PART IV - PREHEARING REVIEW

                       SECTION A-ANALYST’S ASSESSMENT
l.  Facts and Circumstances:

      a.  All the specific facts and circumstances pertaining to the
applicant’s discharge are not contained in the available records.  Evidence
of record shows that on 3 August 1994, the Circuit Court in the County of
Gloucester, Virginia, convicted the applicant of the second degree murder
of his wife.  He was sentenced to 40 years, 20 years of which shall be
suspended for 40 years on conditions required by the court.  On 25 August
1994, the unit commander notified the applicant of initiation of separation
action under the provisions of Chapter l4, Section II, AR 635-200, by
reason of misconduct—conviction by civil court, with an under other than
honorable conditions discharge.  He was advised of his  rights.  The
applicant consulted with legal counsel, was advised of the impact of the
discharge action, waived his right to an appearance at an administrative
separation board, and did not submit a statement in his own behalf.  On 6
January 1995, DA, HQ, U.S. Transportation Center and Fort Eustis, VA,
Orders 006-00031 discharged the applicant from the Regular Army, effective
13 January 1995.  The record contains a properly constituted DD Form 214
(Certificate of Release or Discharge from Active Duty).  His DD Form 214
indicates that he was discharged under the provisions of Chapter 14 AR 635-
200 by reason of civilian, with a characterization of service of under
other than honorable conditions.

      b.  On 13 January 1995, the applicant was discharged.  At the time of
discharge, the applicant had completed 3 years, 4 months, and 27 days of
active military service and accrued 393 days due to civilian confinement in
the period under review and had a total of 18 years, 10 months and 3 days
of active military service.

2.  Legal/Regulatory Basis for Separation Action:  Army Regulation 635-200
sets forth the basic authority for the separation of enlisted personnel.
Chapter l4 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, to
include abuse of illegal drugs, convictions by civil authorities and
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impractical or unlikely to succeed.  Army policy states that an under other
than honorable conditions discharge is normally considered appropriate, but
a general discharge under honorable conditions or an honorable discharge
may be granted.


                      SECTION B-APPLICANT’S SUBMISSIONS


1.  Issue(s) of propriety and/or equity submitted by applicant or counsel.
    As stated on applicant’s DD Form 293.

2.  Exhibit(s) submitted:

      A-1:  DD Form 293, dated 030910.
      A-2:  Counsel Issues:  NONE
      B-l:  Other Documents: NONE


                   PART IV - PREHEARING REVIEW (CONTINUED)

              SECTION C - Medical and/or Legal Advisory Opinion


Referred to ( ) Medical Advisor      ( ) Legal Advisor



      a.  Medical prehearing comments (if applicable):


      b.  Legal prehearing comments (if applicable):











                         PART V - SUMMARY OF HEARING

                      SECTION A-Attendees and exhibits

1.  Review/hearing information:


      a. Type requested:
         ( X ) Records review             (   ) Hearing

      b. Type Held:
         ( X )Records review              (   ) Hearing
                                          (   ) Tender Offer

      c. Review/hearing location and date:  Washington, DC on 9 June 2004.

      d. Appearance by:
         Applicant                 (   ) Yes   ( X ) No
         Counsel                   (   ) Yes   ( X ) No

      e.  Applicant testified:     (   ) Yes   ( X ) No

      f.  Counsel presentation:    (   ) Yes   ( X ) No

      g.  Witness(es) testified:   (   ) Yes   ( X ) No

2.  Exhibit(s) submitted at hearing:
                        PART VI - ISSUES AND FINDINGS

1.  a.  Applicant's issue(s) of propriety and/or equity:

          ( X )  Same as those listed on DD Form 293 and Part IV, Section A
              of this case report and directive.
          (   )  Revised issue(s) furnished in writing by applicant as
              follows:
          (   )  Additional issue(s) identified during review/hearing as
              follows:

      b.  Request:  ( X ) Recharacterization     (   ) Change of Reason

2.  Finding(s), conclusion(s), and reason(s) for the Board's decision(s) on
issues of propriety and/or equity:

      a.  Propriety:   The applicant has not submitted an issue of
                   propriety and the ADRB has not otherwise relied upon an
                   issue of propriety to change the discharge.

      b.  Equity:      The parenthetical number(s) below correspond(s) to
                   the issue number(s) on the DD Form 293, or in Part VI,
                   Paragraph 1, above.

        (1) and (2)  The issues are rejected.  The Board carefully examined
the applicant’s record of service during the period of enlistment under
review.  There was a full consideration of all faithful and honorable
service as well as the infraction of discipline, the extent thereof, and
the seriousness of the offense.  Conviction by a civilian court for second
degree murder compelled the applicant’s command to consider him for
discharge.  Retention is normally only considered in exceptionally
meritorious cases when clearly in the best interests of the Army.  Because
of the civilian conviction, the applicant diminished the quality of his
service below that meriting a fully honorable or general discharge.  The
applicant provided no independent corroborating evidence demonstrating that
either the command's action was erroneous or that his service mitigated the
misconduct.  The Board found no evidence of arbitrary or capricious actions
by the command.  The Board was satisfied that all requirements of law and
regulation were met and the rights of the applicant were fully protected
throughout the separation process.  The Board, being convinced that the
reason for discharge and the characterization of service were both proper
and equitable, voted to deny relief.

3.  Response(s) to item(s) not addressed as decisional issue(s):  NONE

                           PART VII - BOARD ACTION
                   SECTION A - Conclusions/Decisions/Vote

1.    Board conclusion(s):

      The discharge was:

      ( X ) Proper.
      (   ) Improper as to characterization.  Change characterization to
                                               .
      (   ) Improper as to reason.  Change reason to
                                   under                      .

      ( X ) Equitable.
      (   ) Inequitable as to characterization.  Change characterization to
                                         .
      (   ) Inequitable as to reason.  Change reason to
                                 
            under                                 .
      (   ) Both proper and equitable, but characterization/reason for
           separation cited was an administrative/clerical error and should
           be changed to                      under
                                   .

2.  Voting record:      Change   No Change
                  Reason       0         5
    Characterization       0         5

        The names and votes of the members of the Board are recorded in
Part IX of this document and can be obtained by writing to the address
below.  The request must contain the CASE NO. located in the upper right
corner of this document.

                  Department of the Army Review Boards Agency
                  ATTN:  Promulgation Team
                  1941 Jefferson Davis Highway, 2nd Floor
                  Arlington, VA  22202-4508



3.  Minority views:  NONE
                           PART VII - BOARD ACTION
                 SECTION B - Verification and Authentication

Case report reviewed and verified

                          
Ms. McKim-Spilker
Case Reviewing Official

                     PART VIII - DIRECTIVE/CERTIFICATION
                            SECTION A - DIRECTIVE

                                    NONE

                          SECTION B - CERTIFICATION

Approval Authority:


ROBERT L. HOUSE
Colonel, U.S. Army
President, Army Discharge
   Review Board

Official:




MARY E. SHAW
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder

EXHIBITS:
A - Application for review of discharge                  C - Other
B - Material submitted by applicant

INDEX RECORD:

AR Number:  2003096727                    INDEX NUMBERS:  A9405
Date of Review:  040609                                   A9235
Character of Service:  UD                                 A0100
Date of Discharge:  950113
Authority:  AR 635-200 C14
Reason:  A6100
Results of Board Action/
Vote/Affirmation:  NC 5-0 A













                           PART IX - VOTING RECORD

    Name                                   Reason          Characterization
                                           CHANGE   NC     HON  UHC   NC
UNCHAR

    1.      Mbr          X                 X       

    2.      Mbr          X                 X       

    3.      Mbr          X                 X       

    4.      Mbr          X                 X       

    5.      PO           X                 X