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):  970307

3.  Authority for separation:

	a.  Regulation:  Chapter 14, 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:
			                          GCMDL                     
a.  Period entered for:  4 Years               NCOPDR(2)
b.  Entry date:  911230                        SWASMw/2BSS
c.  Age:  24 Years   DOB:  671218              KLM                         
d.  Educational level:  HS Grad                C/Ach(3)                              
e.  Aptitude area score:
	    GT:  116                               3.  Highest grade achieved:
    f.  Length of Service:                         E5
          3 Year(s)  9 Month(s)  21 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   951021-970307                                         

	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            880324    911229        HD

PART IV - PREHEARING REVIEW

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

	a.  Evidence of record shows that on 4 January 1997, the unit commander notified the applicant 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 advised of his rights.  The applicant acknowledged notification, 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 on his behalf.  The unit commander reviewed the proposed discharge action and recommended approval of the separation action with an under other than honorable conditions discharge.  On 22 January 1997, the board of officers met; the applicant appeared with counsel.  The board recommended separation for misconduct-conviction by civil court with a characterization of under other than honorable conditions.  On 14 February 1997, the separation authority directed that the applicant be discharged with an under other than honorable conditions discharge.  

	b.  On 7 March 1997, the applicant was discharged.  At the time of discharge, the applicant had 3 years, 9 months, and 21 days of service on his current enlistment and 7 years, 6 months, and 20 days total time in service.

	c.  The Ontario County Court in the State of New York convicted the applicant of 2nd degree murder and 1st degree manslaughter for the death of his stepdaughter.

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 000118, with four (4) enclosure(s).
	A-2:  Counsel Issues:  NONE
	B-l:  Other Documents: NONE
	C-1:  DD Form 149, dated 990901.

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 22 March 2000

	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 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 record does not support the applicant’s contention, and no evidence to support it has been submitted by the applicant, that his discharge was improper.  The Board noted that an Administrative Separation Board was properly conducted and that the separation authority determined that the specific offenses warranted separation.  However, the evidence of record indicates the applicant’s discharge was held in abeyance pending the outcome of his appeal process.

	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 rejected.  The Board carefully examined the applicant’s record of service during the period of enlistment under review. Although the applicant was not pending any type of military disciplinary action, Army Regulation 635-200, Chapter 14, Paragraph 14-5d states a soldier convicted by civil court will be reduced or considered for reduction as it applies to reduction in grade for misconduct.  The applicant’s conviction by civil authorities obligated military authorities to consider the applicant for discharge.  The Board concluded that because of the civilian conviction, the applicant diminished the quality of his service below that meriting a fully honorable or general discharge.  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	

MRS. WADE
Case Reviewing Official	

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE

NONE

SECTION B - CERTIFICATION

Approval Authority:

THOMAS J. ALLEN
Colonel, U.S. Army
President, Army Discharge
   Review Board

Official:

SUZANNE WALKER    
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:  2000035960                    INDEX NUMBERS:  A9227
Date of Review:  000322                                   A9445
Character of Service:  UD                                 A9233
Date of Discharge:  970307                                
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