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NAVY | DRB | 2008_Navy | ND0800658
Original file (ND0800658.rtf) Auto-classification: Denied

ex-AR, USN
Current Discharge and Applicant’s Request
Application Received: 20080221
Characterization of Service Received: (entry level separation)
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN (erroneous entry-drug abuse)

Applicant’s Request:     Characterization change to:
                           Narrative Reason change to: REQUESTED, NOT STATED

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      20000624 - 20000719              Active:
Period of Service Under Review:
 Date of Enlistment: 20000720      Period of enlistment : Years Extension          Date of Discharge: 20000811
Length of Service : Yrs Mths 22 D ys      Education Level:         Age at Enlistment:       AFQT: 44
Highest Rank /Rate : AR     Evaluation marks: Performance: NFIR       Behavior: NFIR    OTA: NFIR
Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJPs :    

S CMs :   

SPCMs:  

C C :      

Retention Warnings: .

Types of Documents Submitted

 Related to Military Service:      DD 214:          Service and/or Medical Record:            Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:           Community Service:                References:              
        
Additional Statements From Applicant:             From Representat ion :              From Member of Congress:
Other Documentation (Describe)



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

Applicant’s Issues

 1. Reenlistment purposes.
2. Aspires to become a peace officer .
3. Change in characterization to honorable.
4. Change narrative reason- disclosed pre-service drug use to recruiter.

Decision

Date: 20 08 0523             Location: Washington D.C         R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY .
Discussion

 : T he Applicant is seeking a change in the RE Code so he can reenlist and become a peace officer. T he NDRB does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum , for additional information regarding and Employment/Educational Opportunities .

Issue 3 ( Equity) . The Applicant request ed the characterization of his discharge to be changed to honorable but provides no justification for the request . Under Department of Navy and Marine Corps 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 service member’s performance or conduct that would merit an honorable characterization, an uncharacterized discharge is
g enerally considered the most appropriate characterization of a member’s service. The Applicant's service record did not contain any unusual circumstances during his one month in the military to warrant a change of discharge to honorable. Therefore the Board found his uncharacterized characterization appropriate and de termined an upgrade was not warranted.

The Applicant should be aware that with respect to non - service-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.

Issue 4 (Propriety): RELIEF WARRANTED. The Applicant also requested a change in the narrative reason for his separation. He contends he smoked marijuana before joining the military and when he arrived in basic training he disclosed this information to his recruiter. The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. Pursuant to MILPERSMAN 1910-130 (formerly 3620280) , a member may be separated on the basis of erroneous enlistment when the enlistment would not have occurred if relevant facts had been known by the Navy Department or had appropriate directives been followed, the enlistment was not the result of fraudulent conduct on the part of member, and the defect is unchanged in any material respect.

Pursuant to the comments of the Commanding officer contained in the Authorization of Administrative Separation of 7 August 2000, the Applicant was discharged on the basis of erroneous enlistment because he failed to disclose pre - service drug use at the Moment of Truth. This statement contradicts evidence contained in the DD Form 1966, Record of Military Processing - Armed Forces of the United States, completed by the Applicant on 21 June 2000 , almost a month prior to his enlistment, wherein he checked yes on question 26 -Drug use /abuse . On page 3 of this same form, section VI - Remarks, the Applicant wrote the following: “26. Applicant admits to using marijuana 8 times from 1 99 908 to 199910.” Additionally, the Applicant completed and signed a Administrative Remarks, NAVPERS 1070/613 on the day of his enlistment, 20 July 2000 responding “yes” to question 10 – “ Have you ever used any DRUGS, including marijuana even if it was only one time? ” Based on the foregoing evidence, the Board determined t he requirement for separation due to an erroneous enlistment ha d not been met since relevant facts regarding the Applicant’s preservice drug use had been disclosed by the Applicant prior to his enlistment and was known by the Navy Department. The Board determined relief is warranted under propriety grounds because an error of fact existed . The Board voted 4 to 1 to change the narrative reason to “secretarial authority. ”



Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until
12 June 2001, Article 1910-130 , 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, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .


ADDENDUM: Information for the Applicant

 Complaint Procedures : 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000 . You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the 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 additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. 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.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 may 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.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: 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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