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

ex-MM2, USN
Docket No. ND05-00326

Applicant’s Request

The application for discharge review, received 20041210, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050214.  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 four to one that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/FRAUDULENT ENTRY INTO MILITARY SERVICE, DRUG ABUSE, authority: NAVMILPERSMAN, Article 1910-134 (formerly 3630100).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Pre-enlistment drug use not divulged: Manipulated-to lie by recruiter.  I had a drug problem and it was not addressed by the recruiter therefore my problems with drugs carried forward into my enlistment.  It wasn’t until 6 months prior to my re-enlistment-that I was able to overcome my problem on my own.  In my service-record you will notice a SSBI interview with a D.I.S. representative for a top secret clearance.  It was at this point that the Navy’s core values and preaching's of integrity took root and I decided to do right thing and come clean.  You will also notice that once my statement was submitted no action was taken.  This led me to believe that from this point everything was alright.  Several months went by and I decided to re-enlist.  I never used drugs while in the Navy starting 6 months prior to my re-enlistment up to my discharge.  I was discharged Honorably from my first enlistment and committed no infractions during my second enlistment.         
Throughout my Navy career no Captain's masts or punitive actions were taken, only commendations.  It was quoted to me by administrative Navy personnel, "Since everything happened on your first enlistment, your second enlistment wipes your slate clean.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

None

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	980205 - 981027	COG
	Active:   USN			981028 – 010226	HON

Period of Service Under Review:

Date of Enlistment:  010227		Date of Discharge:  021220

Length of Service (years, months, days):

	Active:    01  09  25
	Inactive:  None

Age at Entry:  21			Years Contracted:  6

Education Level:  12			AFQT:  87

Highest Rate:  MM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.33 (3)		Behavior:  2.67 (3)		OTA:  3.13

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, NEM, NER, NUC, GCM, MM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/FRAUDULENT ENTRY INTO MILITARY SERVICE, DRUG ABUSE, authority:  NAVMILPERSMAN, Article 1910-134 (formerly 3630100).

Chronological Listing of Significant Service Events:

021106:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of defective enlistment and induction due to fraudulent entry, drug abuse.

021106:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

021127:	Commanding Officer recommended discharge under other than honorable conditions by reason of defective enlistment and induction due to fraudulent entry into the military service, drug abuse.  Commanding Officer’s comments:  In a security clearance application dated 000513, Applicant admitted to frequent use of marijuana between 1994 and 1998.  On 001120, the Applicant admitted to DSS Agent J_ that he used marijuana “on about seven occasions since enlisting into the USN” and to also using cocaine, LSD, mushrooms, and glass prior to enlistment.

021213:	Commander, Submarine Force, U.S. Pacific Fleet directed the Applicant's discharge under other than honorable conditions by reason of defective enlistment and induction due to fraudulent entry into the military service, drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021220 under other than honorable conditions by reason of defective enlistment and induction due to fraudulent entry into the military service, drug abuse (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

Issue 1.  Drug abuse warrants mandatory processing for separation.  The Applicant was not processed for separation for his self-admitted drug abuse while on active duty until after he had reenlisted.  The Board found that the Applicant deliberately concealed his active duty drug abuse during his first enlistment from his chain of command and was thereby able to fraudulently reenlist.  The seriousness of his offenses warrants discharge
under other than honorable conditions due to his fraudulent enlistment.  The evidence of record, to include the Applicant’s issue, does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question.  No such inequity or impropriety is evident during the Applicant’s enlistment.  Additionally, 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 the service.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge.  Representation at a personal appearance hearing is recommended but not required.  

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-134 (previously 3630100), Separation by Reason of Defective Enlistments and Inductions – Fraudulent Entry Into the Naval Service.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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.

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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 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