Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. ND05-00464

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

 ex-FR, USN
Docket No. ND05-00464

Applicant’s Request

The application for discharge review was received on 20050125.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “other than what it is.”  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050511.  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 and reason for discharge shall not change.  The discharge shall remain:  (ENTRY LEVEL SEPARATION)/ERRONEOUS ENTRY - DRUG ABUSE, authority: NAVMILPERSMAN, Article 1910-130 (formerly 3620280).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I was discharged because of my drug abuse and personal issues.  I was young and my life has changed since then.  I am now happily married and haven’t used drugs for 3 and a half years.  I would like to rejoin the military to better my self and family.  It would be a great honor to rejoin and serve my country.  I am willing to do what ever it takes to reenter the armed forces.  I would like my reentry code of RE-4 changed to RE 1, 2, or 3 so that I may enter a branch of service. Thank you for your time.”

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)	001102 - 001107	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  001108		Date of Discharge:  010201

Length of Service (years, months, days):

	Active:    00  02  02
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  10			AFQT:  53

Highest Rate:  FR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  22

*No marks assigned

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

UNCHARACTERIZED (ENTRY LEVEL SEPARATION)/ERRONEOUS ENTRY - DRUG ABUSE, authority: NAVMILPERSMAN, Article 1910-130 (formerly 3620280).

Chronological Listing of Significant Service Events:

001030:	Standard Form 93:  Applicant disclosed one prior marijuana use on 000916.  Applicant checked “no” to all other drug abuse.

001031:	NAVCRUIT Form 1133/65:  Applicant checked “no” to all questions concerning illegal drug use.

001223:	Applicant to unauthorized absence [extracted from DD Form 214].

010114:	Applicant from unauthorized absence [22 days, extracted from DD Form 214].

010117:	Recruit Mental Health Substance Use Evaluation:
		Diagnosis:
Axis I: Conduct Disorder EPTE 312.82; Cannabis Dependent 304.30; Alcohol Dependent 303.9.
Axis II: Antisocial P/D 301.7 with Borderline features.    
Applicant disclosed preservice marijuana use of ¼ pound per month, cocaine use and LSD use.  Applicant further admitted to daily marijuana use while in an unauthorized absence status.

010119:	Applicant notified of intended recommendation for discharge by reason of defective enlistment and induction due to erroneous enlistment as evidenced by an antisocial personality disorder, a conduct disorder, and medical evaluation of alcohol dependence and cannabis dependence.  Applicant notified that if separation is approved, the least favorable characterization of service possible is general (under honorable conditions).

010119:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.

010123:	Commanding Officer authorized Applicant’s discharge with an uncharacterized service by reason of defective enlistment and induction due to erroneous enlistment as evidenced by an antisocial personality disorder, a conduct disorder, and medical evaluation of alcohol dependence and cannabis dependence. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010201 with an entry level separation (uncharacterized) for defective enlistment and induction due to erroneous enlistment - 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.  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  The Applicant was properly processed by reason of defective enlistment and induction due to erroneous enlistment.  The Applicant failed to disclose the full extent of his preservice drug usage, including his cannabis dependence.  Likewise, the Applicant was diagnosed with alcohol dependence, a conduct disorder and a personality disorder.  These diagnoses satisfy the requirements for an erroneous enlistment.  The Applicant’s contention that he is now drug free does not change the propriety or equity of his discharge as the time it was issued.  The Applicant’s characterization of service and reason for discharge were both proper and equitable.  Relief denied.

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 should 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.  As of this time, the Applicant has not provided any documentation for the Board to consider.  Relief denied.

By regulation, members discharged within the first 180 days of enlistment are given characterization of service uncharacterized or entry-level separation unless there were unusual circumstances regarding performance or conduct, which would merit an honorable characterization.  Applicant's service record did not contain any unusual circumstances during his less than three months in the military to warrant a change of discharge to honorable.  The Applicant should be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) discharge.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  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.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 other evidence related to his discharge at that time.  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), Change 18, effective 12 Dec 97 until 12 Jun 01, Article 1910-130 (formerly 3620280), Separation by Reason of Defective Enlistments and Inductions - Erroneous Enlistment.

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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.