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NAVY | DRB | 2005_Navy | ND0501157
Original file (ND0501157.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-AR, USN
Docket No. ND05-01157

Applicant’s Request
The application for discharge review was received on 20050701. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review, a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area and a personal appearance hearing discharge review before a traveling panel. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051216. 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 by reason of defective enlistment and induction due to erroneous enlistment - drug abuse .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated

 Applicant’s issues, as stated on the application:

“At the time of discharge I had a waiver from the Admiral at the time & I was unaware of being positive for marijuana. Since then I feel that drug are no longer an issue upon my request for reenlistment in to the U.S. Army.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19950609 – 19950626               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19950627             Date of Discharge: 19950712

 Length of Service (years, months, days):

         Active: 00 00 16
         Inactive: None

 Time Lost During This Period (days):

         Unauthorized absence: none
         Confinement:              none

 Age at Entry: 19

 Years Contracted: 4

Education Level: 12                                 AFQT: 79

 Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                  Behavior: NA*    OTA: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal.
* Not Available


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

UNCHARACTERIZED/ ERRONEOUS ENTRY - DRUG ABUSE, authority: MILPERSMAN, Article 3620280.
Chronological Listing of Significant Service Events :

950412:  Pre-service waiver for drugs granted.
950630:  Accession urinalysis screening: Applicant positive for THC.
950705:  Applicant notified of intended recommendation for discharge by reason of defective enlistment and induction due to erroneous enlistment into the naval service as evidenced by positive accession urinalysis as confirmed by NAVDRUGLAB Great Lakes, IL urine sample custody documented dated 30 June 1995 for positive urinalysis for marijuana. If separation is approved, the description of service will be Entry Level Separation (where applicable) or the least favorable characterization of service authorized in your case is General.
950705:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
950707:  Commanding Officer, Recruit Training Command, authorized applicant’s discharge with an Entry Level Separation by reason of defective enlistment and induction due to erroneous enlistment into the naval service as evidenced by positive accession urinalysis as confirmed by NAVDRUGLAB Great Lakes, IL urine sample custody documented dated 30 June 1995 for marijuana. Commanding Officer’s comments: “It is evident that this recruit has effected an erroneous enlistment. Therefore, I hereby authorize separation from the naval service with an Entry Level Separation.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19950712 by reason of defective enlistment and induction due to erroneous enlistment - drug abuse (A) with a service characterization of uncharacterized. After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, the Applicant alleged that he had a waiver and that he was unaware of being positive for marijuana. The Applicant’s positive accession urinalysis for THC, on the 3 rd day of this period of service, is credible evidence that the Applicant used illegal drugs while in the delayed entry program. The use of illegal drugs while in the delayed entry program is a disqualifier for enlistment. A member of the U.S. Navy may be separated on the basis of erroneous enlistment, reenlistment, induction, or extension of enlistment when it would not have occurred if the relevant facts had been known by the Navy Department or had appropriate directives been followed. The Applicant’s misconduct is clearly documented. Relief denied.

By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service. Unless there were unusual circumstances regarding a servicemember’s performance or conduct that would merit an honorable characterization, an uncharacterized discharge is generally considered the most appropriate characterization of a member’s service. The Applicant's service record did not contain any unusual circumstances during his 16 days in the military to warrant a change of discharge to honorable. 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.

The Applicant should be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) discharge.

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 following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. There is no law or regulation, which provides that an unfavorable discharge may be upgraded, based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization 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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any post-service documentation for the Board to consider. Relief denied.

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. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. 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 9, effective 22 Jul 94 until 02 Oct 96, Article 3620280, SEPARATION OF ENLISTED PERSONEL BY REASON OF DEFECTIVE ENLISTMENT 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 V, Para 502, Propriety .
C. 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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