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):  950203

3.  Authority for separation:

      a.  Regulation:  Chapter 10, AR 635-200

      b.  Reason:  In Lieu of Trial by Court-Martial

4.  Prior review(s):  NONE



                         PART III - SERVICE HISTORY

                 SECTION A - Period of Service Under Review

1.    Service data:                              2.  Awards and
    decorations:
                                           AAM
    a.  Period entered for:  4 Years               GCMDL
    b.  Entry date:  860401                        NDSM
    c.  Age:  27 Years   DOB:  580704              ASR


    d.  Educational level:  HS Grad


    e.  Aptitude area score:
          GT:  103                               3.  Highest grade
achieved:
    f.  Length of Service*:                        E4
          8 Year(s)  3 Month(s)  7 Day(s)

                                               4.  Performance evaluations:

                                                   NONE

* See #8 Remarks
                         PART III - SERVICE HISTORY
           SECTION A - Period of Service Under Review - Continued

5.  Periods of unauthorized absence:

    Status       Inclusive dates
      AWOL         890905-890906; 900206-900830

      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:  The DD Form 214 shows no lost time due to military
confinement.
                 Period of military confinement is shown as time served.
                 Applicant completed first full term of service.

                       SECTION B - Prior Service Data
                                    NONE

Other discharge(s):

      Service    From  To    Type Discharge





                         PART IV - PREHEARING REVIEW

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

      a.  Evidence of record shows that on 16 November 1990, the applicant
was found guilty by a General Court-Martial of committing rape,
communicating a threat, AWOL (900206-900830), and adultery.  He was
sentenced to 12 years confinement, a dishonorable discharge, total
forfeitures, and reduction to private/E1.  At a post-trial session, the
military judge denied the applicant’s motion to dismiss or order a new
trial based on unlawful command influence.  The convening authority
approved the applicant’s sentence.  The military review court affirmed the
findings and sentence.  On 30 September 1994, the United States Court of
Military Appeals reversed the military review court’s findings of guilt
with respect to the applicant’s sentencing and conviction on the charges of
rape and communicating a threat.  On 21 October 1994, the applicant was
notified of the court’s decision and advised that a rehearing on the
sentence based on the adultery and AWOL offenses would be ordered.  On 26
January 1995, the applicant consulted with legal counsel and voluntarily
requested, in writing, discharge under the provisions of Chapter l0, AR 635-
200 in lieu of trial by court-martial sentence rehearing.  In this request,
the applicant admitted guilt to the offenses, or lesser-included offenses.
Further, the applicant indicated that he understood that he could receive
an under other than honorable conditions discharge and that the discharge
would have a significant effect on eligibility for veteran’s benefits.  The
applicant did not submit a statement in his own behalf.  On 31 January
1995, the general court-martial convening authority (GCMCA) determined that
a rehearing on the sentencing of the AWOL and adultery charges was
impracticable, and directed a sentence of no punishment, and all rights,
privileges, and property of which the applicant had been deprived as a
result of the initially approved sentence restored.  The GCMCA further
directed that the applicant be separated under the provisions of Chapter
10, AR 635-200, with an under other than honorable conditions discharge.
The applicant was to be reduced to the lowest enlisted rank.

      b.  On 3 February 1995, the applicant was discharged.  At the time of
discharge, the applicant had completed 8 years, 3 months, and 7 days of
active military service and accrued 207 days lost due to AWOL in the period
under review.

2.  Legal/Regulatory Basis for Separation Action:  Army Regulation 635-200
sets forth the basic authority for the separation of enlisted personnel.
Chapter l0 of that regulation provides, in pertinent part, that a member
who has committed an offense or offenses for which the authorized
punishment includes a punitive discharge may submit a request for a
discharge for the good of the service in lieu of trial by court-martial.
The requests may be submitted at any time after charges have been preferred
and must include the individual’s admission of guilt.  Army policy states
that although an honorable or general discharge is authorized, a discharge
UOHC is normally considered appropriate.


                      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 040210.
      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, D.C. on 20 October
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:
          ( X )  Additional issue(s) identified during review/hearing as
              follows:

        Board Issue:  (2)  The discharge is inequitable.

      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.
 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 evidence of record shows that the Court
of Military Appeals reversed the applicant’s general court-martial
conviction on the charges of rape and communicating a threat, and ordered a
re-sentencing hearing on the AWOL and adultery conviction.  Upon legal
advice, the applicant voluntarily requested separation under the provisions
of Chapter 10, AR 635-200, in lieu of a re-sentencing hearing.  The general
court-martial convening authority determined that a re-sentencing hearing
was impracticable and accepted the applicant’s voluntary request for
discharge.  While the Board does not condone the applicant’s misconduct
(AWOL and adultery), the Board determined that the offenses were mitigated
by the time served in military confinement.  Given the above, the Board
found that the discharge is now inequitable.  Accordingly, the Board voted
to grant relief in the form of an upgrade of characterization of service to
fully honorable and to change the reason for discharge to Secretarial
Authority.  This action does not entail a change in RE code.

        (1)  See Paragraph 3, below.

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 issue 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
           Honorable.
      ( X ) Inequitable as to reason.  Change reason to Secretarial
           Authority
            under Chapter 5, AR 635-200.
      (   ) 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       4         1
    Characterization       5         0

        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:  22 October 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 Honorable.
           ( X ) Change reason and authority for discharge to
            Secretarial Authority, AR 635-200.
           ( X ) Other (see remarks below).

Remarks:  This action does not entail a change in RE code.

                          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:  2004104461                    INDEX NUMBERS:  A9406
Date of Review:  041020                                   A9236
Character of Service:  UD                                 A0100
Date of Discharge:  950203
Authority:  AR 635-200 C10
Reason:  A7100
Results of Board Action/
Vote/Affirmation:  HD 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