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NAVY | DRB | 2006_Navy | ND0600888
Original file (ND0600888.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-YN1, USN
Docket No. ND06-00888

Applicant ’s Request
The application for discharge review was received on 200 606 20 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable . The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.
Decision

A documentary discharge review was conducted in Washington, D.C. on 20070510 . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant ’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense .





PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Propriety – Misconduct was not adjudicated

 Propriety – Due process

Equity – Quality of service

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant , was considered:
Trident Refit Facility Correspondence Routing sheet
 Evaluation Report and Counseling Record, dated July 20, 2005 (2 pages) (2)
Evaluation Report and Counseling Record, dated May 9, 2005 (2 pages) (2)
Letter to the Honorable K_ B_ H_, Senator , from Applicant ’s parents, dated April 27,     2006 (2 pages)
Letter to Senator K_ B_ H_, (o ne page only ) , dated July 6, 2005
 Letter to Senator K_ B_ H_ from Applicant ’s mother (unsigned) , dated July 1, 2005
Letter to Senator K_ B_ H_ from Applicant ’s mother (unsigned) , dated October 24,         2005
 Letter to Mr. D_ B_ and others from Applicant ’s parents, dated November 21, 2005 (4      pages
Letter to the Honorable K. M_ C_, from T. E. D_, Head, Congressional Matters, dated      June 23, 2005 (3 pages)
Letter to T. E. D_ from Applicant ’s father (unsigned) , dated July 22, 2005 (13 pages)
List of questions to the Honorable M_ C_ from Applicant , dated July 20, 2005 (2 pages )
Trident Refit Facility Correspondence Routing sheet
Letter to T. E. D_, from Applicant ’s father (unsigned) , dated September 7, 2005
Evaluation Comparison sheets (2 pages) (2)
Letter from D_ A. B_, Director, White House Liaison Office, to Applicant ’s Parents ,      dated September 13, 2005 (2 pages)
Letter from T. E. D_ , Head, Congressional Affairs, to the Honorable M_ C_ , dated       October 6, 2005 (2 pages)
Information and Privacy Act Form, dated September 5, 2005
Durable Power of Attorney for Applicant to his father, dated November 10, 2005 (6 pages)
 Applicant ’s DD Form 214 (Member 1 and 4) (2)
Letter from Applicant , dated July 20, 2006
Three page statement from the Applicant , dated July 20, 2006
Time line of incidents ( 4 pages)
 A ffidavit from Applicant ’s mother , undated , unsigned ( 8 pages)
Partial affidavit from A_ C_ , undated, unsigned, (2 pages)
A ffidavit from Applicant , undated , unsigned ( 8 pages)
 Trident Refit Facility Correspondence Routing sheet
Time line and Rebuttal letter, dated July 22, 2005 (13 pages)
 Ninety-six p ages from Applicant ’s service record
 Applicant ’s certification of marriage
 Applicant ’s divorce decree (17 pages)
Order for withholding from earnings for child support (5 pages)
Evaluation Report and Counseling Record, dated December 20, 2004
 Statement for the Record from CDR F_ O. M_ , dated February 2, 2005 (2 pages)
Statement for the Record from Applicant , dated January 11, 2005
Evaluation Report and Counseling Record, dated December 5, 2003
Evaluation Report and Counseling Record, dated July 10, 2003
Evaluation Report and Counseling Record, dated November 27, 2002
Evaluation Report and Counseling Record, dated November 15, 2001
Citation for outstanding performance from September 2001 to March 2002
 Commendation for outstanding performance for November 11, 2000
Evaluation Report and Counseling Record, dated November 15, 2000
Evaluation Report and Counseling Record, dated August 7, 2000
Evaluation Report and Counseling Record, dated September 13, 1999
 Evaluation Report and Counseling Record, dated March 2, 1999
 Evaluation Report and Counseling Record, dated March 3, 1998
 Evaluation Report and Counseling Record, dated March 10, 1997
Citation for outstanding performance for November 1996
Evaluation Report and Counseling Record, dated June 15, 1996
 Cover letter for Award of Navy and Marine Corps Achievement Medal, dated August          30, 1999
 Cover letter for Award of Navy and Marine Corps Achievement Medal, dated August          6, 1999
 Copy of Navy and Marine Corps Achievement Medal, dated July 6, 1999
 Cover letter for Letter of Commendation, dated March 8, 1996
Commendation for outstanding performance from October to December 1995
 Enlisted Performance Evaluation Report dated June 15, 1995
 Enlisted Performance Evaluation Report for period of report September 21, 1994 to        January 15, 1995
Enlisted Performance Evaluation Report for period of report February 1, 1994 to          September 20, 1994
Enlisted Performance Evaluation Report for period of report February 1, 1994 to August   31, 1994
Enlisted Performance Evaluation Report for period of report July 20, 1992 to January 31,         1994
Performance Memorandum for the record, dated February 12, 2003
 Performance Memorandum for the record, dated February 5 , 1993
 Citation dated December 4, 1994

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19910921 - 19920719       COG
         Active: USN      19920720 - 19970418       HON
                   USN      19970419 - 20020630      HON
Period of Service Under Review :
Date of Enlistment: 20020701              Date of Discharge: 20050720

Length of Service (years, months, days):

          Active: 0 3 00 2 0
          Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

Age at Entry: 2 8
Years Contracted: 6

Education Level: 12                                 AFQT: 56

Highest Rate: YN1

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.3 (4 )                        Behavior: 2.5 ( 4 )                  OTA: 3. 00
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy and Marine Corps Achievement Medal(3), Navy Expeditionary Medal, Navy Good Conduct Medal(3), National Defense Service Medal (2) , Sea Service Deployment Ribbon (3), Sharpshooter Pistol Shot Ribbon, Enlisted Submarine Warfare Specialist


Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS) /MISCONDUCT (SERIOUS OFFENSE), authority: MILPERSMAN, Article 1910-142 (formerly 3630605).
Chronological Listing of Significant Service Events :

040701:  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 superceded by a Temporary Consent Order issues 20040729 allowing visitation with the child but maintaining the restraint on contact with the wife. [ Extracted from CO, TRIDENT Refit Facility ltr 20050624.]

 040819:  Family Advocacy Program Case Review Committee substantiates that YN1 K_ committed physical abuse against his wife on 20040625. [Extracted from CO, TRIDENT Refit Facility ltr 20050624.]

 050517:  Case Review Committee determined that YN1 K_ was a Family Advocacy Program failure. He refused to take responsibility for his actions and in fact was dropped from the recommended treatment, Alternatives to Violence Workshop for Men. [Extracted from CO, TRIDENT Refit Facility ltr 20050624.]

 050606:  An Administrative Discharge Board, based upon a preponderance of the evidence and by a vote of 2 to 1 found that the Applicant had committed misconduct based on a commission of a serious offense, assault and battery , and by a unanimous vote found that the Applicant had committed misconduct based on a FAP failure. The Administrative Discharge Board also voted 2 to 1 that such misconduct warranted separation, and voted unanimously for a recommended discharge with a characterization of gener al (under honorable conditions).

050613 :  Letter of Deficiency for Administrative Board ICO YN1 W_ A. K_ (Applicant) submitted by the Respondent’s ( Applicant’s ) Defense Counsel.
050617:  First Endorsement on Respondent’s Counsels’ Letter of Deficiency by Command Judge Advocate, Naval Submarine Support Center, Kings Bay. SJA Comments: “I do not concur with the Respondent’s Counsel’ s reasons of deficiency and recommend that the request be denied. ”


050620:  Second Endorsement on Respondent’s Counsel’ s Letter of Deficiency by Commanding Officer, TRIDENT Refit Facility, Kings Bay , f orwarded concurring with the Command Judge Advocate’s recommendation in the first endorsement. Commanders Comments: “Reference (a) grants a Special Court-Martial convening authority provision to act as a separating officer for the charges against YN1 K_. As the Commanding Officer of TRDIENT Refit Facility I hold that authority. YN1 K_ (Applicant) has filed a Uniform Code of Military Justice Article 138 complaint against myself and Navy Regulations Article 1150 complaints against several members of my command. Those issues have been adequately addressed. However, to prevent any indication of bias I am recusing myself of making the final decision on the termination of YN1 K_ Naval career. Request Commander, Submarine Group 10 make the final determination of the separation of YN1 K_ from the Navy. ”

050624:  Commanding Officer, TRIDENT Refit Facility, Kings Bay recommendation to Commander, Submarine Group 10, Kings Bay. Commanding Officer, TRIDENT Refit Facility, Kings Bay, concurs with the findings of the Board that the Applicant be discharged by reason of commission of a serious offense and Family Advocacy Progr am (FAP) rehabilitation failure with a characterization of service of general (under honorable conditions) .       

050627:  Commander, Submarine Group 10, directed the Applicant’s discharge with a general (under honorable conditions) by reason on of misconduct – commission of a serious offense.

050720:  Administrative Entry NAVPERS 1070/613: On this date, YN1 K_ (Applicant) refused to sign his Certificate of Release or Discharge from Active Duty (DD Form 214) stating that he wasn’t going to sign the form without receiving legal advice from his attorney.

 050720 :  DD Form 214: Applicant discharge d with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense, authority: MILPERSMAN 1910-142.


PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20050720 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under honorable conditions). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The Board presumed regularity in the conduct of governmental affairs (E).
Propriety – Misconduct was not adjudicated: The Applicant contends that his discharge should be “overturned” because he was denied the court martial that he requested in order to present evidence that would have cleared him.
Propriety – Administrative processing

 Commission of a serious offense does not require adjudication by nonjudicial, judicial proceedings or civilian conviction; however, the offense must be substantiated by a preponderance of evidence. The statements and documents provided by the Applicant do not refute the presumption of regularity in this case. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his action. The Applicant elected to appear before an administrative discharge board which recommended his administrative separation by reason of misconduct – commission of a serious offense with a characterization of service of general (under honorable conditions). The separation authority concurred with the recommendation and directed the Applicant’s discharge. Relief on this basis is not warranted.

Propriety – Due process: The Applicant contends that he was the subject of numerous violations of Navy regulations.

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. The Applicant was properly notified, acknowledged his rights, and elected to appear before an administrative separation board. The record contains no evidence of any wrongdoing by the Applicant’s Commanding Officer or by anyone involved in the discharge process. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. Relief denied.





Equity – Quality of service: The Applicant requests to be reinstated back into the Navy or be retired because he had an excellent military record for 13 years.
When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A general discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service was marred by violation of Article 128 of the UCMJ and he was designated as a Family Advocacy Program rehabilitation failure. Violation of UCMJ Article 128 is considered a serious offense for which a punitive discharge is authorized if adjudged by a special or general court martial. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant remains eligible for a personal appearance hearing, provided an 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.

Pertinent Regulation/Law (at time of discharge)

 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. 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 battery.)

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

 E. 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 IV - INFORMATION FOR THE APPLICANT
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 . 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 ” .
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

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