Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. ND07-00161

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

ex-FR, USN
ND07-00161

Current Discharge and Applicant’s Request

Application Received:  20061117 	Characterization Received:  UNCHARACTERIZED (ENTRY LEVEL SEPARATION)
Narrative Reason:  ERRONEOUS ENTRY - DRUG ABUSE Authority:  MILPERSMAN 1910-130

Applicant’s Request:	Characterization change to:  GENERAL (UNDER HONORABLE CONDITIONS)  
			Narrative Reason change to: NONE REQUESTED
Applicant’s Issues:	1. Change Reenlistment code
			2. Inequitable characterization

Decision

By a vote of 5-0 the Characterization shall remain UNCHARACTERIZED.	
By a vote of 5-0 the Narrative Reason shall remain ERRONEOUS ENTRY - DRUG ABUSE.

Date:  20070912    Location:  Washington D.C.  The Board found that the discharge was proper and equitable.

Discussion

Issue 1:  This is either an Issue which the Board cannot form the basis of relief for the Applicant, or one that the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regardingthis Issue.  

Issue 2: (Equity).   The Applicant implies he tested positive for marijuana as a result of misguidance by his recruiter.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the recruiter misled him through the recruitment process.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  However, if the Applicant could demonstrate clear misrepresentations in the recruitment process, such misrepresentations would neither amount to a justification nor to a defense for the Applicant’s omission of fact that on 20011105 the Applicant certified, on his United States Navy Illicit Behavior Screening Certificate, that he had not used illegal drugs during the time period of 20010810 to 20011105. 

The Applicant should be aware that, by regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service.  Unless there were unusual circumstances regarding a service member’s performance or conduct that would merit an honorable characterization, an uncharacterized discharge is generally considered the most appropriate characterization of a member’s service.  The Applicant's service record did not contain any unusual circumstances during his less than 1 month of military service to warrant a change of his discharge to general (under honorable conditions).  Therefore the Board found his uncharacterized characterization appropriate.   

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20010810 - 2001104  COG		Active:   NONE
Period of Service Under Review:
Date of Enlistment: 20011105		Years Contracted:  4	Date of Discharge:  20011126
Length of Service:  00  Yrs  00  Mths  22  Dys	Lost Time:  Days UA:  NONE  Days Confined:  NONE
Education Level:  12	Age at Enlistment:  18	AFQT:  42	Highest Rank/Rate:  FR
Evaluation marks (# of occasions):	Performance:  N/A	Behavior:  N/A	 OTA:  N/A 
Awards and Decorations (per DD 214):  NONE

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20010810:	Applicant admits to experimental/casual use of marijuana.

20011105:	Applicant certifies he has not used illegal drugs during the time period of 20010810 to 20011105.

20011108:	NAVDRUGLAB, Great Lakes, IL, reported Applicant’s urine sample, received 20011106, tested positive for THC.

Discharge Process

Date Notified:					20011119
Reason for Discharge:	DEFECTIVE ENLISTMENT AND INDUCTION - ERRONEOUS ENLISTMENT
Least Favorable Characterization:	GENERAL (UNDER HONORABLE CONDITIONS)

Date Applicant Responded to Notification:		20011119
Rights Elected at Notification:
	Consult with Counsel			WAIVED
	Obtain Copies of Documents		ELECTED
	Submit Statement(s) (date)			WAIVED
	Administrative Board			NOT APPLICABLE
	GCMCA review				WAIVED

Commanding Officer Recommendation (date):	NOT APPLICABLE
Separation Authority (date):	COMMANDING OFFICER (20011120)
              Reason for discharge directed:	DEFECTIVE ENLISTMENT AND INDUCTION - ERRONEOUS ENLISTMENT
              Characterization directed:	ENTRY LEVEL SEPARATION
Date Applicant Discharged:	20011126

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  ☒		Other Records:  ☐

Related to Post-Service Period:  	
	Employment:  		☐	Finances:  		☐	Education: 		☐
	Health/Medical Records:  	☐	Substance Abuse:		☐	Criminal Records:  	☐
	Family/Personal Status: 	☐	Community Service:  	☐	References:  		☐
	
Additional Statements From Applicant:  ☐	From Representative:  ☐  
Other Documentation (Describe) ☐      

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 13 June 2001 until 21 August 2002, Article 1910-130, 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, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

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 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, 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 “PTSD.”  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 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.  

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