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):  940613

3.  Authority for separation:

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

      b.  Reason:  Misconduct

4.  Prior review(s):  Records Review/000802



                         PART III - SERVICE HISTORY

                 SECTION A - Period of Service Under Review

1.    Service data:                              2.  Awards and
    decorations:
                                           ARCOM      ASR
    a.  Period entered for:  6 Years (8 Mos Ext)   AAM (3)    OSR
    b.  Entry date:  880426           (920522)     GCMDL
    c.  Age:  30 Years   DOB:  571117              NDSM
    d.  Educational level:  HS Grad                NCOPDR-3
    e.  Aptitude area score:
          GT:  110                               3.  Highest grade
achieved:
    f.  Length of Service:                         E6
          6 Years  1 Month  18 Days

                                               4.  Performance evaluations:

                                                   See OMPF (fiche)

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

5.  Periods of unauthorized absence:  NONE

    Status       Inclusive dates
      AWOL

      Mil conf

      Civil conf

      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
      USAR  770304     770510     NA
      RA    770511     791214     Honorable
      RA    791215     820527     Honorable
      RA    820528     880425     Honorable




                         PART IV - PREHEARING REVIEW

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

      a.  Evidence of record shows that on 17 February 1994, the unit
commander notified the applicant of initiation of separation action under
the provisions of Chapter l4, AR 635-200, by reason of
misconduct—conviction by civil court, with an under other than honorable
conditions discharge.  The reasons for the proposed action were attempted
rape, indecent acts with a child, indecent assault on a child, incest, and
sodomy.  He was advised of his rights.  On 22 February 1994, the applicant
consulted with legal counsel, was advised of the impact of the discharge
action, requested a hearing by a board of officers, and did not submit a
statement in his own behalf.  The unit commander subsequently recommended
separation with an under other than honorable conditions discharge.  The
intermediate commanders reviewed the proposed discharge action and
recommended approval of the separation action with an under other than
honorable conditions discharge.  The Assistant Staff Judge Advocate
determined the separation action to be legally sufficient.  On 15 March
1994, the GCMCA directed that a board convene to determine whether the
applicant should be discharged.  On 28 March 1994, the applicant was
notified of the impending Administrative Separation Board.  On 9 May 1994,
the board of officers met; the applicant appeared with counsel.  The board
recommended separation for misconduct-conviction by civil court with a
characterization of service of under other than honorable conditions.  On
23 May 1994, the separation authority directed that the applicant be
discharged with an under other than honorable conditions discharge and
reduced to the lowest enlisted grade.

      b.  On 13 June 1994, the applicant was discharged.  At the time of
discharge, the applicant had completed 6 years, 1 month, and 18 days of
active military service in the period under review and had a total of 17
years, 1 month, and 3 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 031226, with four (4) 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 13 September
2004.

      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:   (   ) 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:
          ( X )  Additional issue(s) identified during review/hearing as
              follows:

        Board Issue:  (2)  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 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.

        (2)  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.  The Board does not condone
the applicant’s misconduct; however, determined that the characterization
of service is too harsh.  The Board found that the applicant provided
evidence of favorable post-service conduct to partially mitigate the
misconduct in his official record.  However, the applicant, by his
misconduct diminished the quality of his service below that meriting a
fully honorable discharge.  Accordingly, the Board voted to grant partial
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.

        (1)  The issue is rejected.  See response to issue (2), above.

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                      .

      (   ) 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       4         1

        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:  17 September 2004

     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:  This action entails a restoration of grade to staff sergeant/E6.

                          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:  2004101155                    INDEX NUMBERS:  A9406
Date of Review:  040913                                   A9222
Character of Service:  UD                                 A0113
Date of Discharge:  940613
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