Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: donald.e.brown1
Company: NCPB

Docket No. ND08-01097

ex-YN1, USN

Current Discharge and Applicant’s Request

Application Received:  20080422
Characterization of Service Received:  GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge: MISCONDUCT COMMISSION OF A SERIOUS OFFENSE
Authority for Discharge:  MILPERSMAN 1910-142 (COMMISSION OF A SERIOUS OFFENSE)

Applicant’s Request:  Characterization change to:  HONORABLE
		       Narrative Reason change to:  NONE REQUESTED

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19910921 - 19920719  COG	Active:	USN  19920720 – 20020630  HON

Period of Service Under Review:
Date of Enlistment:  20020701	Age at Enlistment:  28
Period of Enlistment:  6 Years  NO Extension
Date of Discharge:  20050720	Highest Rank/Rate:  YN1
Length of Service:  03 Years   00  Months   20 Days
Education Level:  12	AFQT:  56
Evaluation Marks:  Performance:  3.3 (4)               Behavior:  2.5 (4)           OTA:  3.00

Awards and Decorations (per DD 214):	NMCAM (3) NEM GCM (3) NDSM (2) SSDR (3) Pistol SS ESWS

Periods of UA/CONF:  NONE

20040701:  Superior Court of Camden County, State of Georgia, issued a Family Violence Ex Parte Protective Order to the
                   Applicant barring all contact between YN1 K. (Applicant) and his wife and child.  The order also required YN1 
                   K. to appear before the court on 20040722.  The order was superseded by a Temporary Consent Order issued 
                   20040729 allowing visitation with the child by maintaining the restraint on contact with wife.  [Extracted from CO, 
                   TRIDENT Refit Facility letter 20050624].

20040819:  Family Advocacy Program Case Review Committee substantiates that YN1 K. committed physical abuse against 
                   his wife on 20040625.  [Extracted from CO, TRIDENT Refit Facility letter 20050624].

20050517:  Case Review Committee determined that YN1 K. was a Family Advocacy Program failure.  He refused to take 
                   responsibility for his action and in fact was dropped from the recommended treatment, Alternatives to Violence 
                   Workshop for Men.  [Extracted from CO, TRIDENT Refit Facility letter 20050624].
 
NJP:  NONE   SCM:  NONE   SPCM:  NONE   CC:  NONE   Retention Warning Counseling:  NONE

NDRB Documentary Review Conducted (date):	20070510
NDRB Documentary Review Docket Number:	ND06-00888
NDRB Documentary Review Findings:		NO CHANGE WARRANTED

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  ☒	 Service/Medical Record:  ☒		  Other Records:  ☐

Related to Post-Service Period:	
	Employment:		☐	Finances:		☐	Education/Training:	☐
	Health/Medical Records:	☐	Substance Abuse:		☐	Criminal Records:	☐

Related to Post-Service Period (cont):

	Family/Personal Status:	☐	Community Service:	☐	References:		☒
              Additional Statements:
                             From Applicant:  ☐	From Representation:         ☐	From Congress member:    ☐

                    Other Documentation:  ☒

Applicant Testified:  Yes
Applicant Available for Questions:  Yes
Witnesses:  Yes. 
Observers:  Not Applicable      

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ:  Article 128 (Assault consummated by a battery).

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.  Characterization of discharge too harsh.
2.  Post service conduct.

Decision

Date:  20090408    PERSONAL APPEARANCE HEARING    Location:  Washington D.C.	Representation:  American Legion

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT COMMISSION OF A SERIOUS OFFENSE.

Discussion

Issue 1:  (Equity)  RELIEF NOT WARRANTED.  The Applicant and his representative appeared before the Board contending the characterization of discharge was too harsh.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  

The evidence of record reflects on 01 July 2004 the Superior Court of Camden County Georgia issued a Family Violence Ex Parte Protective Order against the Applicant barring all contact with his wife and child.  This order was amended to allow the Applicant visitation with the child.  On 19 August 2004, the Family Advocacy Program Case Review Committee (FAP) substantiated the Applicant for physical abuse against his wife and recommended Family Advocacy Treatment.  On 17 May 2005, the FAP committee determined the Applicant to be a treatment failure based on his refusal to take responsibility for his action.  

Based on the aforementioned assault and FAP treatment failure, the Applicant was notified of administrative separation processing based on misconduct due to the commission of a serious offense and the FAP rehabilitation failure.  The Applicant elected an administrative board.  Per the transcript of the proceedings, the Applicant’s now ex- wife (second wife) testified the Applicant assaulted her twice in June 2004 by choking her in the bedroom and throwing her to the living room floor a week later.  The Applicant was questioned about this incident at this Personal Appearance Hearing and he denied wrongdoing.  His current wife (third wife) also testified that he is a good husband and provider.  Based on the evidence presented at the hearing, the administrative board, by a vote of 2-1 found there was sufficient evidence to support discharge based on the commission of a serious offense; by a vote of 3-0 found there was sufficient evidence to support discharge due to FAP failure; by a vote of 2-1 recommended separation; and by a vote of 3-0 recommended a characterization of general (under honorable conditions).  

Taking into consideration the documentary evidence, testimony of the Applicant and spouse (his third wife), and the circumstances unique to this case the NDRB determined the preponderance of the evidence reviewed supports the conclusion  the Applicant committed a serious offense, that separation from the Naval service was appropriate, and that a general (under honorable conditions) discharge was warranted.  There is no indication the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  Based on the seriousness of the offense committed (assault on his wife), and the lack of mitigating evidence the NDRB determined the awarded discharge was appropriate and an upgrade was not warranted.  

Issue 2:  (Equity)  RELIEF NOT WARRANTED.  The Applicant’s representative is also seeking relief for the Applicant based on post service conduct.  The Applicant testified he divorced his second wife in October 2006 and married his current wife who is now pregnant.  He also testified since being discharged he has been working on a business degree and needs 5 courses to graduate.  The Applicant’s representative also presented a letter of reference from the Applicant’s current employer of 3 years.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in 

the civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews.  Documentation to help support a post service conduct upgrade includes, but is not limited to: marriage and children’s birth certificate (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; and documentation of a drug free lifestyle.  The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.  While the Board applauds the Applicant’s post service efforts, it was determined the evidence of post-service conduct was insufficient to support an upgrade in his discharge characterization.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service  Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found the discharge was proper and equitable.  

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable Discharge is authorized, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.  Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

Secretary of the Navy Council of Review Boards
Attn:  Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC  20374-5023

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Non-judicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement		CC - Civilian conviction	B&W – Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Non-judicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement		B&W – Confinement on bread and water			CC - Civilian conviction