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NAVY | DRB | 2008_Navy | ND0801466
Original file (ND0801466.rtf) Auto-classification: Denied

ex-SN, USN
Current Discharge and Applicant’s Request
Application Received: 20080702
Characterization of Service Received:
Narrative Reason for Discharge: ERRONEOUS ENTRY – DRUG ABUSE
Authority for Discharge: MILPERSMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: ERRONEOUS ENTRY (OTHER)

Summary of Service

Prior Service:
 Inactive: USNR (DEP) 20050620 -20060730                  Active:

Period of Service Under Review:
 Date of Enlistment: 20060731      Period of Enlistment : Years Extension         Date of Discharge: 20060815
Length of Service: Years Months 15 D ays       Education Level:         Age at Enlistment:      AFQT: 46
 Highest Rank/Rate:       E-3      Evaluation Marks: Performance:   NFIR     Behavior: NFIR    OTA: NFIR
Awards and Decorations (per DD 214): Rifle Pistol

Periods of UA/CONF: NJP: SCM: SPCM: CC: Retention Warnings: NONE

Types of Documents Submitted/reviewed

 Related to Military Service:     
DD 214:         Service/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 Representation:     From Congress member:

Other Documentation (Describe):

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until Present, 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a.


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

Applicant’s Issues

 1. Desires change to his Separation Code.
2. Desires an Honorable characterization of service.
3. Feels the urinalysis was compromised.

Decision

Date: 20081030            Location: Washington D.C.        R epresentation : CIVILIAN COUNSEL

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall ERRONEOUS ENTRY (DRUG ABUSE) .
Discussion

 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum, specifically the paragraph concerning Separation/ s, regarding .

: ( ) . The Applicant, through his legal representative, states he was not properly informed of the character of his discharge and desires it to be upgraded from “Uncharacterized” to “Honorable”. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service was marred by a positive urinalysis taken during the first week of recruit training. The Applicant was discharged by reason of erroneous entry (drug abuse) into military service. For the edification of the Applicant, a member may be separated on the basis of erroneous enlistment when the enlistment would not have occurred if relevant facts had been known or had appropriate directives been followed. On 15 June 2005 the Applicant signed a Drug and Alcohol Testing Acknowledgement Form which states use of illegal drug is a disqualifier for military service.

While the Applicant’s separations notification document does not specifically say Erroneous Enlistment (drug abuse), there is no requirement in the MILPERSMAN to identify the exact subcategory for the erroneous enlistment. While knowing the subcategory may be helpful, not having that information did not prejudice the rights of the Applicant since the discharge would have remained the same. His positive urinalysis was the basis for his Erroneous Enlistment discharge. It is Navy policy to provide evidence upon which the discharge is based with the Administrative Separation Notification. In the Applicant’s case, the drug lab message would have been included.

The Applicant cites MILPERS 1910-300 to support his claim for an “Honorable” discharge. However, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an “Uncharacterized” or “Entry-Level Separation” as their characterization of service. Since the Applicant only served 15 days in the U. S. Navy, he rated an entry-level separation. Unless there were unusual circumstances regarding a service member’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 fifteen days of service in the U. S. Navy to warrant a change to “Honorable”.

The Applicant should also be aware 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. The Board determined an upgrade would be inappropriate.

 : ( ) . The Applicant, through his legal representative, claims the urinalysis which lead to his entry level separation was not properly conducted. He states the results of the drug test were not admissible because a name at the bottom of the lab report was lined out and the Applicant’s name was entered by hand above the lined out name.

Although the line out is not normally found on lab results, the urine test is identified by the service member’s social security number, not by his or her name. The social security number which identifies the positive sample does belong to the Applicant and was intact on the lab result report. Neither the Applicant nor his counsel provided evidence to support their claim the urinalysis may have been incorrectly administered.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found


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, provided 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 granted 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.
Employment/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.

 Seperation/Reenlistment/RE-code: Since the NDRB has no jurisdiction over separation, reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a separation or reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to separation or reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable separation or “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 or is referred to a court martial 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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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