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NAVY | DRB | 2002_Navy | ND02-00741
Original file (ND02-00741.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND02-00741

Applicant’s Request
The application for discharge review, received 020430, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The Applicant requested a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. The Applicant subsequently obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030228. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, 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 3620280.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. (Equity Issue) NAVMILPERSMAN directives indicate that members being processed for separation with less than 180 days of active duty will normally be assigned a non-punitive Uncharacterized (Entry Level Separation). This former member opines that his circumstances are sufficiently extenuating to warrant exception.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214
Statement of material contentions
Three pages from Applicant's service record
Diploma
Character reference from Applicant's father dated March 27, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     970424 - 970611  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 970612               Date of Discharge: 970630

 Length of Service (years, months, days):

         Active: 00 00 19
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 78

 Highest Rate: SR

 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: None

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

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

 Chronological Listing of Significant Service Events :
970423:  Questionnaire for National Security Positions (SF 86): Applicant checked "YES" concerning the use of illegal drugs and drug activity. Applicant admitted to having “used marijuana between 9/95 and 4/96 rejects further use.”
970623:  NAVDRUGLAB, Great Lakes, IL reported Applicant's urine sample, received 970613, tested positive for THC.

970623:  Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty. Service directed urinalysis 970623. Commanding Officer recommended separation.

970624:  Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of defective enlistment and induction due to erroneous enlistment as evidenced by a confirmed positive entrance urinalysis test result for marijuana.
970624:  Applicant advised of his 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.

970625:  Commanding Officer directed discharge with an uncharacterized service by reason of defective enlistment and induction due to erroneous enlistment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 970630 with an uncharacterized (entry level separation) 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: The Board’s charter limits its review to a determination on the propriety and equity of a discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s entry-level separation proper and equitable, additionally the Board determined the reason for separation accurate and appropriate. By regulation, service members discharged within the first 180 days of enlistment are given the characterization of service “Entry Level Separation.” The Separation Code “JFU,” Erroneous Entry – Drug Abuse, is authorized for use when the service member is found to have used/abused drugs prior to enlistment or induction into the service. The Applicant was identified as a drug abuser based on a confirmed positive entrance urinalysis test result for THC and the Applicant’s admitted marijuana use. Relief 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. 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 14, effective 03 Oct 96 until 11 Dec 97, Article 3620280, SEPARATION OF ENLISTED PERSONNEL BY REASON OF DEFECTIVE ENLISTMENT 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 " afls14.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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