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NAVY | DRB | 2001_Navy | ND01-01128
Original file (ND01-01128.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND01-01128

Applicant’s Request
The application for discharge review, received 010828, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 19 April 2002. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: UNCHARACTERIZED (ENTRY LEVEL SEPARATION)/ERRONEOUS ENTRY - DRUG ABUSE, authority: NAVMILPERSMAN, Article 1910-130 (formerly 3620280).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. (Equity Issue) This former member avers that she was improperly discharged because she never used any illegal drugs.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Applicant's request for change of RE code for reenlistment purposes

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     000831 - 000925  COG

 Period of Service Under Review :
Date of Enlistment: 00926                Date of Discharge: 001121

 Length of Service (years, months, days):

         Active: 00 01 26
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 49

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NM*                  Behavior: NM              OTA: NM

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

* No Marks in service record.
 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 :
000829:  Acknowledged understanding of Navy's Zero Tolerance Policy on Drugs. Stated last time she used illegal drugs was 5/96 and the type of drug was marijuana.
000926:  Navy Recruiting Manual - Enlisted (NAVCRUIT Form 1133/65): Applicant checked "NO" concerning the use of illegal drugs and drug activity and use of alcohol except indicated that she had experimentally/casually used marijuana over six months ago. Waiver granted.
001108:  Accession urinalysis screening - (NAVDRUGLAB Great Lakes): Urine sample received 000928, applicant positive for amphetamine and methamphetamine.

001114:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible as General Under Honorable Conditions by reason of defective enlistment and induction due to erroneous enlistment as evidenced by a confirmed positive urinalysis for amphetamine and methamphetamine.
001114:  Applicant advised of her 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.
001116:  CO, RTC, Great Lakes directed the applicant's entry level separation (uncharacterized) by reason of defective enlistment and induction due to erroneous enlistment as evidenced by a confirmed positive urinalysis for amphetamine and methamphetamine.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 001121 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 (D and E).

Issue 1. The applicant states that she was improperly discharged because she never used illegal drugs. Normally, to permit relief, an error or injustice must have occurred during the period of enlistment in question. No such error or injustice occurred. The Applicant was counseled on the Navy's drug policy. She tested positive on her entry urinalysis. She was afforded all of her rights in accordance with all instructions and regulations. She voluntarily elected to waive her rights. The discharge was proper and equitable. Relief denied.

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 civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the re-characterization 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of her not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief based on post-service conduct.

The Applicant did not provide sufficient documentation to warrant a change to her discharge. She is reminded she remains eligible for a personal appearance hearing provided an application is received at the NDRB within 15 years from the date of her discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended, but not required. Relief is hereby denied

 Pertinent Regulation/Law (at time of discharge)

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 until PRESENT, Article 1910-130 (formerly 3620280), Separation by Reason of Defective Enlistments and Inductions - Erroneous Enlistment.

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 " afls10.jag.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:

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

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