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):  010530

3.  Authority for separation:

      a.  Regulation:  Chapter 14, Paragraph 14-12c, 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:
                                           ARCOM(2nd Awd)
    a.  Period entered for:  4 Years               GCMDL
    b.  Entry date:  970626                        ASR
    c.  Age:  19 Years   DOB:  771220


    d.  Educational level:  HS Grad


    e.  Aptitude area score:
          GT:  109                               3.  Highest grade
achieved:
    f.  Length of Service:                         E4
          3 Year(s)  8 Month(s)  2 Day(s)

                                               4.  Performance evaluations:

                                                   NONE

                         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   001026-010126


      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  951214     970625     NA




                         PART IV - PREHEARING REVIEW

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

      a.  Evidence of record shows that on 8 January 2001, the unit
commander notified the applicant of initiation of separation action under
the provisions of Chapter l4, AR 635-200, by reason of
misconduct—commission of a serious offense, with an under other than
honorable conditions discharge.  The unit commander indicated that he was
initiating separation action because the applicant had violated regulations
by wrongfully engaging in social activity of a personal, unofficial nature
with three individuals who were the subject of a recruiting effort;
wrongfully consuming alcohol with the subject of a recruiting effort;
wrongfully sexually harassing three individuals by propositioning them for
sexual favors; engaging in carnal copulation with the subject of a
recruiting effort; and attempting to engage in carnal copulation with two
individuals.  He was advised of his rights.  The applicant consulted with
legal counsel, was advised of the impact of the discharge action, and
requested appearance before a board of officers.  The intermediate
commander reviewed the proposed discharge action, recommended an under
other than honorable conditions discharge, and forwarded the proposed
discharge for board action.  On 10 April 2001, board of officers met;
applicant appeared with counsel.  The board recommended separation with an
under other than honorable conditions discharge.  On 7 May 2001, the
separation authority approved the findings and recommendations of the
board, waived further rehabilitative efforts and directed that the
applicant be discharged with a characterization of service of under other
than honorable conditions.

      b.  On 30 May 2001, the applicant was discharged.  At the time of
discharge, the applicant had completed 3 years, 8 months, and 2 days of
active military service and accrued 93 days of lost time due to civil
confinement in the period under review and had a total of 5 years, 2 months
and 14 days of active military service.

      c.  On 26 October 2000, the applicant was arrested and incarcerated
in Orange County, California, and charged with willfully and unlawfully
participating in an act of oral copulation with a minor; willfully and
unlawfully attempting to participate in an act of oral copulation with a
minor, two counts; and willfully and unlawfully annoying or molesting a
minor.  On 19 January 2001, the applicant plead guilty to one count of
participating in an act of oral copulation with a 17 year old, and was
sentenced to three years formal probation, 150 days incarceration (44 days
off for good conduct), and a $200 fine.

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 040109.
      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 13 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:
          (   )  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)  The issue is 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 infractions of discipline, the extent thereof, and the
seriousness of the offenses.  Paragraph 14-12c, AR 635-200, sets forth the
procedures for separating individuals who commit serious offenses if the
specific circumstances of the offense warrant separation.  The applicant’s
command determined that the applicant’s admission of guilt, his conviction
and sentencing by a civil court for willfully and unlawfully participating
in an act of oral copulation with a minor constituted a serious offense and
that this misconduct warranted separation from the Army.  Further, the
applicant wrongfully violated Army regulations by engaging in improper acts
with individuals who were the subject of a recruiting effort.  The
applicant's discharge was appropriate because the quality of his service
was not consistent with the Army's standards for acceptable personal
conduct and performance of duty by military personnel.  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 noted the applicant’s contentions; however, found that
his contentions were not sufficiently mitigating to overcome the
discrediting entries in his service record.  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
                  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

                                    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:  2004104462                    INDEX NUMBERS:  A9217
Date of Review:  041013                                   A9235
Character of Service:  UD                                 A0113
Date of Discharge:  010530
Authority:  AR 635-200 C14
Reason:  A6730
Results of Board Action/
Vote/Affirmation:  NC 5-0 A













                           PART IX - VOTING RECORD

    Name                                   Reason          Characterization
                                           CHANGE   NC     HON  UHC   NC
UNCHAR

    1. LTC PROCTOR, ESMERALDA G.  Mbr          X                 X       

    2.      Mbr          X                 X       

    3.      Mbr          X                 X       

    4.      Mbr          X                 X       

    5.      PO           X                 X