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NAVY | DRB | 2004_Navy | ND04-00702
Original file (ND04-00702.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND04-00702

Applicant’s Request
The application for discharge review was received on 20040324. The Applicant requests the reason for the discharge be changed. The Applicant requests a documentary record review. The Applicant listed the Franklin County, Pennsylvania, Office of Veterans’ Affairs as the representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20041103. 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. However, the Board did discover an inequity in the Narrative Reason for Separation. The Board’s vote was 3 to 2 that the reason for discharge shall change. The discharge shall change to: UNCHARACTERIZED (ENTRY LEVEL SEPARATION)/ERRONEOUS ENTRY - OTHER, authority: NAVMILPERSMAN, Article 1910-130 (formerly 3620280). The separation code shall change to “ JFC. ”

The NDRB did note administrative errors on the original DD Form 214. Block 13, Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized should contain the following: “NATIONAL DEFENSE SERVICE MEDAL/X.” The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “Prior to entry into active duty I had admitted to my recruiter P.O. H----- my use of prescribed medication, Paxil 20Mgs for anxiety. I was told by the recruiter that there would be no need to admit this concern again upon entry. It was only during in-processing at basic training where I learned differently and spoke up with the truth. I sincerely believe that I was not at fault nor did I willingly commit fraud but followed my recruiter’s commands (as told to do so). Now I am being stigmatized by the narrative “drug abuse” and a fraudulent entry into the navy.”

Additional issues submitted by Applicant’s counsel/representative (Franklin County, PA, Office of Veterans’ Affairs):

“1. Sir; this young man requests that the Naval Department review the reasons for his separation. The narrative of his DD Form 214, issued 12 May, 2003, would have anyone believe that he was a drug abuser, when in fact he admitted to taking a medication prescribed by a licensed medical provider almost two years prior to entry into the Navy.

2. The facts are that this young man did not willfully commit fraud to enter the Naval Service, but obediently followed his recruiter’s, a Navy non commissioned officer, instruction by not reporting his prior mental health condition during his entrance processing. D----, did report his prior condition to the recruiter and inform the recruiter that transcripts and a letter of support could have been obtained from his doctor. Instead it was the recruiter who ignored his obligation to obtain proper documentation, but used the shortcut of ordering his recruit to keep quiet on the matter. The intentional fraud of the erroneous enlistment was committed by the recruiter, not the recruit.

Previously sent on 17 July, 2003, and was requested to wait until nine months after separation. That limit has now been surpassed.

Please take the appropriate actions to exonerate this young man.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Letter from M. D_ B_, M.D.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     021127 - 030428  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 030429               Date of Discharge: 030512

 Length of Service (years, months, days):

         Active: 00 00 14
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 39

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*                 Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

*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 :
021107:  U.S. Navy Illicit Behavior Screening Certificate: Applicant initialed “YES” to items 9, 10, and 11, admitting to marijuana use over six months ago, conviction of one drug abuse offense, and conviction of two or more drug abuse offenses.

021127:  Questionnaire for National Security Positions (SF 86): Applicant checked "YES" concerning the use of illegal drugs and drug activity. Applicant admitted to Marijuana use four times between 010601 – 010715.

021127:  DD Form 1999/1: Applicant initialed “YES” to item 26 concerning drug use and abuse. In the remarks, Applicant admitted to marijuana use four times for experimentation.
020505:  Medical evaluation: Applicant diagnosed, by competent medical authority, with anxiety disorder, not otherwise specified, 300.00 EPTE, depressive disorder, not otherwise specified, in remission, 311 EPTE, and cannabis dependence, 304.30, EPTE. Applicant received psychiatric treatment since age 10. Symptoms of anxiety disorder recurred since the beginning of boot camp. Marijuana use was daily until July 2001. Applicant arrested three times for possession of marijuana.
030505:  NAVPERS 1070/613 entry: Applicant notified not eligible for reenlistment due to Medical.
030507:  Applicant notified of ineligibility for Level III inpatient treatment.

 030507:  Applicant notified of intended recommendation for discharge with a least favorable characterization of general (under honorable conditions) by reason of defective enlistment and induction due to erroneous enlistment as evidenced by cannabis dependence, anxiety disorder and a depressive disorder.
030507:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
030508:  Commanding Officer directed the Applicant's discharge with an uncharacterized service by reason of defective enlistment and induction due to erroneous enlistment – drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030512 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, but, the Narrative Reason for Separation was inequitable (C and D).

Issue 1: The Applicant contends that the Narrative Reason for Separation, Erroneous Entry – Drug Abuse is incorrect. The Applicant was diagnosed by competent medical authority with anxiety disorder, not otherwise specified, depressive disorder, not otherwise specified, and cannabis dependence. Notwithstanding the psychiatrist ’ s diagnosis of cannabis dependence, the record indicates that the Applicant had disclosed his pre-service marijuana use, had not had a drug incident while on active duty, and had not used marijuana for a period of two years prior to entry. Furthermore, the record indicates that the disqualifying psychiatric conditions were preventing the Applicant ’ s potential for performance in the Naval service and were the catalyst for his eventual discharge. Such evidence leads this Board to conclude that the Applicant was separated as a result of his anxiety and depressive disorders rather than his cannabis dependence . Thus, the only appropriate Narrative Reason for Separation is Erroneous Entry – Other. Relief granted.

 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. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 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 " 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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