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):  980226*

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:
                                           AAM        OSR
    a.  Period entered for:  3 Years               GCMDL
    b.  Entry date:  931123                        NDSM
    c.  Age:  27 Years   DOB:  660107              SWASM w/1BSS
    d.  Educational level:  HS Grad                ASR
    e.  Aptitude area score:
          GT:  89                                3.  Highest grade
achieved:
    f.  Length of Service:                         E4
          1 Year  3 Months  10 Days

                                               4.  Performance evaluations:

                                                   NONE

*NOTE:  Applicant was beyond his established ETS (961122) at the time of
his
        discharge due to civil confinement.
                         PART III - SERVICE HISTORY
           SECTION A - Period of Service Under Review - Continued

5.  Periods of unauthorized absence:

    Status       Inclusive dates
      AWOL         931215-960513

      Mil conf

      Civil conf   960514-980226

      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:  Total time of service reflected as shown on DD Form 214.
              Applicant remained in civil confinement at the time of
              discharge on 980226.

                       SECTION B - Prior Service Data

Other discharge(s):

      Service    From  To    Type Discharge
      RA    860305     890227     Honorable
      USAR  890228     910119     NA
      ADT   910120     910415     Honorable
      USAR  910416     910713     NA
      ADT   910714     920124     Honorable
      USAR  920125     931021     NA




                         PART IV - PREHEARING REVIEW

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

      a.  The evidence of record shows that the applicant was reported AWOL
from Fort Lee, Virginia, effective 15 December 1993.  On 14 May 1996,
civilian authorities in Boston, MA, apprehended the applicant for charges
of aggravated rape; assault with intent to rape; kidnapping; indecent
assault and battery on a person 14 or over; removing/mutilating firearm
serial number; and possession of a firearm with no license on person/in
motor vehicle.  He was confined at the Nashua Street Facility, Boston, MA
pending disposition of charges.  On 29 April 1997, he appeared in the
Superior Court for Suffolk County, Boston, MA and pled guilty to the cited
charges.  He was sentenced to 6-8 years confinement.  On 5 June 1997, the
Commander, Special Processing Company, Personnel Control Facility (PCF),
Fort Knox, KY, notified the applicant (by correspondence) of initiation of
separation action under the provisions of Chapter l4, AR 635-200, by reason
of misconduct-civil conviction, with an under other than honorable
conditions discharge.  He was notified of his right to consult with legal
counsel by correspondence.  On 4 September 1997, the applicant waived his
right to consult with legal counsel, was advised of the impact of the
discharge action, waived consideration of his case by an administrative
separation board, and did not submit a statement in his own behalf.  His
voluntary waiver of his rights was authenticated by civilian counsel.  On
16 December 1997, the Commander, PCF, recommended separation from the
service with an under other than honorable conditions discharge and waiver
of further rehabilitative efforts.  On 19 December 1997, the intermediate
commander reviewed the proposed discharge action and recommended approval
of the separation action with an under other than honorable conditions
discharge.  On 30 January 1998, the separation authority directed that the
applicant be discharged with a characterization of service of under other
than honorable conditions.

      b.  On 26 February 1998, the applicant was discharged.  At the time
of discharge, the applicant had completed 1 year, 3 months, and 10 days of
active military service and accrued 864 days lost time due to AWOL in the
period under review.  He had a total of 9 years, 1 month, and 28 days of
total 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 040914, with seven (7) enclosures.
      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:
         (   ) Records review             ( X ) Hearing

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

      c. Review/hearing location and date:  Washington, DC on 7 February
2005.

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

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

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

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

2.  Exhibit(s) submitted at hearing:  10 documents.
                        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:
          ( X )  Additional issue(s) identified during review/hearing as
              follows:

        Board Issue:  (5)  The characterization of service is too harsh.

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

        (2)  See Paragraph 3, below.

      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), (3), and (4)  See Paragraph 3, below.

        (5)  The issue is accepted.  The Board carefully examined the
applicant’s record of service during the period of enlistment under review
and heard his testimony.  There was a full consideration of all faithful
and honorable service as well as the infractions of discipline, the extent
thereof, and the seriousness of the offenses.  Although the Board does not
condone the applicant’s misconduct, it found that the characterization of
service is now inequitable.  The Board found that the applicant’s
misconduct was partially mitigated by the circumstances surrounding the
discharge as well as by the documented evidence of the applicant’s
diagnosis and treatment of post-traumatic stress disorder.  Accordingly,
the Board voted to grant relief in the form of an upgrade of
characterization of service to general, under honorable conditions.  The
Board determined that the reason for discharge was both proper and
equitable, and voted not to change it.

3.  Response(s) to item(s) not addressed as decisional issue(s):

    Inasmuch as the Board voted to grant the full relief requested,
response to the remaining issues is neither required nor rendered.


                           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                      .

      (   ) Equitable.
      ( X ) Inequitable as to characterization.  Change characterization to
           General, Under Honorable Conditions.
      (   ) 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       3         2

        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
                  1901 South Bell Street, 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

TO: ARBA Support Division-St Louis      Date:  11 February 2005

     The Army Discharge Review Board, established under the provisions of
Section 30, Public Law 346, 78th Congress, 22 June 1944 and codified as
Title 10, United States Code, Section 1553, in the case of the applicant
named in Part I directs that the ARBA Support Division-St Louis issue a new
DD Form 2l4 to the applicant which reflects the following directed
change(s):


           ( X ) Change characterization of discharge to General, Under
                 Honorable Conditions.
           ( X ) Other (see remarks below).

Remarks:  Restore grade to specialist/E-4.


                          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:  20040007801                   INDEX NUMBERS:  A9406
Date of Review:  050207                                   A9424
Character of Service:  UD                                 A0101
Date of Discharge:  980226
Authority:  AR 635-200 C14
Reason:  A6100
Results of Board Action/
Vote/Affirmation:  GD 3-2 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