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NAVY | DRB | 2009_Navy | ND0900659
Original file (ND0900659.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20090127
Characterization of Service Received:
Narrative Reason for Discharge: , DRUG ABUSE
Authority for Discharge: MILPERSMAN fraudulent entry into military service drug abuse

 Applicant’s Request: Characterization change to:
                  Narrative Reason change to: EXPUNGE RECORD FOR REENLISTMENT

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20080430 - 20081029     Active:  

Period of Service Under Review:
Date of Enlistment: 20081030     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20081117      Highest Rank/Rate: SR
Length of Service : Y ear ( s ) M onth ( s ) 18 D a y ( s )
Education Level:        AFQT: 56
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :              NJP :

S CM :             SPCM:             C C :               Retention Warning Counseling :

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 Representat ion :    From Congress m ember :

Oth er Documentation :

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 22, effective 16 May 2008 until Present, Article 1910-134, Separation by Reason of Defective Enlistments and Inductions - Fraudulent Entry Into the Naval Service.

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 .

        


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

Applicant’s Issues

 1. Seeking to have his RE 4 discharge expunged or upgraded .
2. Recruiter told me not to say anything about the positive urine test.

Decision

Date: 20 0 9 0507             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall , DRUG ABUSE .
Discussion

 : The Applicant is seeking to have his discharge characterization and RE 4 Reenlistment Code expunged or upgraded so he can have a future in the Navy. 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 s , for additional information regarding .

: ( ) . The Applicant is seeking to have his narrative reason and characterization of service expunged or upgraded and contends the following: 1) less than a month before reporting to the Recruit Training Center, Great Lakes, he attended a party where he consumed a dessert laced with drugs , 2) upon learning the dessert was laced with drugs, he immediately contacted his recruiter and chief, 3) the recruiter tested him and the results were positive for drugs, 4) the recruiter told him “not to worry it should be alright by the time I shipped out ” and advised him not to mention the incident , 5) he followed this advice when he arrived at MEPS, but upon arriving at Great Lakes , Illinois he tested positive for drugs and was informed he would be discharge d because he tested positive for THC , and 6) he stated in his paperwork he did not use drugs as advised [by the recruiter]. 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.

Pursuant to the evidence of record as reflected in the RQAT Recruit Disclosure Record of 31 October 2008, the Applicant completed a form listing pre-service use of hallucinogens (October 2008), marijuana (10 times from April 2002 - October 2008) and indicated his recruiter had been notified of this information . The recommended action in this case was to refer the matter to legal for separation. The Commanding Officer’s Report of Administrative Separation of 9 November 2008, indicates the Applicant was administratively processed for separation due to erroneous enlistment as evidenced by pre - service drug use .

There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention the recruiter misled him through the recruitment process. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. However, even if the Applicant could show misrepresentations in the recruitment process, such misrepresentations would neither amount to a justification nor to a defense for the Applicant’s omission of fact s which would have reasonably affected the Applicant’s eligibility for enlistment. The Applicant admits to pre-service drug use and failure to indicate such on “his paperwork ” upon entering the Navy, therefore the Board has determined there is sufficient evidence to separate the Applicant d ue to erroneous entry and a change in the narrative reason is not appropriate.

Additionally, b y regulation, an uncharacterized description shall be used when separation is initiated while a member is in an entry level status, except when separation is for certain prescribed situations (none of which apply to the Applicant) in which circumstances warrant characterization as under other than honorable conditions, or when characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of military duty and is approved on a case-by-case basis by the Secretary of the Navy. The Applicant's service record did not indicate any unusual circumstances of personal conduct or performance of duty during his less than one month in the military that would clearly warrant an honorable characterization of service. The DEP performance letter, character references and

petitions of the Applicant’s parents were considered by the Board and determined not to be sufficient to justify a change in characterization of service to honorable.

The NDRB advises the Applicant that, with respect to non - service related administrative matters, i.e. Department of Veterans Affairs benefits, civilian employment, etc., an uncharacterized separation shall be considered the equivalent of an honorable or general (under honorable conditions) characterization.

 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, 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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB ’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 NDRB 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 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 NDRB 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 NDRB B oard 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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