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NAVY | DRB | 2004_Navy | ND04-00986
Original file (ND04-00986.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND04-00986

Applicant’s Request
The application for discharge review was received on 20040601. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a personal appearance before the Board in Washington, D.C. In the acknowledgement letter, the NDRB advised that the Board first conducts a documentary review prior to any personal appearance hearing. The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050228. 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 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, as stated

 Applicant’s issues, as stated on the application:

 1. “I am requesting a change in code for my discharge. I feel that my urine drug test should not have been positive since it was a minimum of three months since I had smoked marijuana. At the time of discharge I was very embarrassed and felt intimidated and should have asked for another test but I did not know any better. Just after the incident, I talked with a recruiter and was told that if I waited two years, I could try again. When I went to a Marine recruiter, I was told that because of that code on the discharge I couldn't enlist. He suggested a review of the code.
After returning home from Great Lakes, I went back to my old job and have not smoked marijuana or taken any other drugs. I would appreciate any consideration that you can give so that I can re-enlist and serve my country.”

Issues submitted by Applicant’s counsel/representative ( AMERICAN LEGION):
2. “ In accordance with Title 32, CFR, Section 724.166 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

Please inform this Applicant that reenlistment codes are not within the Board purview.

The SR is incomplete. In particular, the discharge package is missing. Review if the available records reflects that this former member tested positive for drug use during the initial phase of his recruit training. On 011015, he discharged with an Uncharacterized (Entry Level Separation) due to erroneous entry-drug abuse as authorized by NAVMILPERSMAN, Article 1910-130.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because he would like to reenter the military. He has submitted 5 pages of additional documentation attesting to his good post-service character, hard work and clean police record for consideration.

Following our through review of the evidentiary record, we opine that the issue raised on DD Form 293 amply advances this former member’s contentions and substantially reflect the probative facts needed for equitable review. Accordingly, we rest this case on the evidence of record.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2 copies)
Criminal record check, dated May 12, 2004 (2 copies)
Letter of employment, dated February 19, 2004 (2 copies)
Letter of recommendation from L_ F_, dated February 2, 2004
(2 copies)
Letter of recommendation from M_ F_, dated February 7, 2004 (2 copies)
Letter of recommendation from C_ D_, undated (2 copies)
Letter from Applicant, dated May 19, 2004 (2 pp.) (2 copies)
Letter from Applicant, dated December 5, 2004
Five pages from Applicant’s service record book

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     010730 - 010925  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 010926               Date of Discharge: 011015

 Length of Service (years, months, days):

         Active: 00 00 20
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 47

 Highest Rate: FR

 Final Enlisted Performance Evaluation Averages (number of marks): None

 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 1910-130 (formerly 3620280).

 Chronological Listing of Significant Service Events :
010730:  Questionnaire for National Security Positions (SF 86): Applicant checked "YES" concerning the use of illegal drugs and drug activity (Maurijuana).

011001:  Accession urinalysis screening: Applicant positive for THC.
011009:  Applicant notified of intended recommendation for discharge by reason of defective enlistment and induction due to erroneous enlistment as evidenced by positive urinalysis for marijuana. Applicant notified that the lowest characterization possible was general (under honorable conditions).
011009:  Applicant advised of 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.
011010:  Commanding Officer directed discharge with uncharacterized service by reason of defective enlistment and induction due to an erroneous enlistment.



PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011015 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).

Issues 1 and 2. The Applicant’s positive urinalysis upon accession in the U.S. Navy provides a proper and equitable basis for his entry level separation for defective enlistment and induction due to erroneous enlistment - drug abuse. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.
Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

The Applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety occurred during the Applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be changed 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 recharacterization of a discharge, to the extent that 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. The Applicant’s evidence of post-service conduct was found not to mitigate the circumstances of his administrative separation sufficient to warrant a change to his discharge. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his 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), Change 33, effective 13 Jun 2001 until 21 Aug 2002, 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

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