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NAVY | DRB | 2005_Navy | ND0500070
Original file (ND0500070.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND05-00070

Applicant’s Request
The application for discharge review was received on 20041018. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to ‘reenlistment.’ The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050118. 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 and reason 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. “Unfairly discharged after faulty drug test. Requested legal help and was denied counsel.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Ltr to Rep Rick Boucher undtd (2 copies)
Ltr frm NPC dtd 1 Jul 04 (2 copies)
Ltr to Sen George Allen dtd 19 Jun 04 (2 copies)
Ltr frm Applicant undtd (2 copies)
Authorization relief dtd 18 May 04 (2 copies)
Copies of documents from Applicants service record (37 pages)
Ltr frm Applicant’s father, undtd (2 copies)
Ltr frm Applicant’s father dtd 21 May 04 (2 copies)
Ltr frm Applicant dtd 26 Oct 04
Applicant’s DD Form 149 (2 copies)
Labcorp test results dtd 31 May 04 (2 copies)
Ltr frm Rep Rick Boucher dtd 27 Oct 04
BCNR ltr dtd 15 Oct 04
Ltr frm Rep Rick Boucher dtd 25 Oct 04

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     030513 - 040420  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 040421               Date of Discharge: 040517

 Length of Service (years, months, days):

         Active: 00 00 27
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4 (12 month extension)

 Education Level: 12                        AFQT: 80

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

*No marks found 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 :
040429:  Accession urinalysis screening: Applicant positive for amphetamine/methamphetamine.

040503:  Applicant notified of intended recommendation for discharge by reason of defective enlistment and induction due to erroneous enlistment as evidenced by positive urinalysis for amphetamine and methamphetamine with the least favorable characterization possible of General (Under Honorable Conditions).
040503:  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.
040511:  Commanding Officer directed Applicant’s uncharacterized discharge with 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 20040517 with an entry level separation (uncharacterized) characterization 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. There is credible evidence in the record that the Applicant used illegal drugs. Mandatory processing for separation is required for sailors who abuse illegal drugs. The Board found no indication in the record that the Applicant was inequitably or improperly denied legal council or that the Applicant’s drug screening was “faulty.” The Applicant’s allegation, that he was denied legal assistance, does not refute the presumption of regularity in this case. 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.

By regulation, members discharged within the first 180 days of enlistment are given characterization of service "Uncharacterized" or entry-level separation unless there were unusual circumstances regarding performance or conduct, which would merit an "honorable" characterization. Applicant's service record did not contain any unusual circumstances during his less than one month in the military to warrant a change of discharge to "honorable."

The summary of service clearly documents that erroneous enlistment for drug abuse was the reason the applicant was discharged. No other Narrative Reason for Separation more clearly describes why the applicant was discharged. To change the Narrative Reason for Separation would be inappropriate. Relief based on this issue is not warranted.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. 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. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 5420.174D 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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