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NAVY | DRB | 2012_Navy | ND1201037
Original file (ND1201037.rtf) Auto-classification: Denied

ex-HR, USN
Current Discharge and Applicant’s Request
Application Received: 20120406
Characterization of Service Received:
Narrative Reason for Discharge: , DRUG ABUSE
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       ENTRY LEVEL SEPARATION

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19951121 - 19960220     Active:  
         USNR (DEP)        20010514 - 20010711
         USNR (DEP)        20010831 - 20010914

Period of Service Under Review:
Date of Current Enlistment: 20010915     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20020301      Highest Rank/Rate: HR
Length of Service: Y ear M onths 17 D a ys
Education Level:        AFQT: 54
Evaluation M arks:         Performance: N/A          Behavior: N/A    OTA: N/A

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF : UA: 20020114-20020128, 14 DAYS / CONF:

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

Administrative Corrections to the Applicant’s DD 214

The NDR B did note administrative error s on the original DD Form 214:

         “ FRAUDULENT ENTRY, DRUG ABUSE ”
         “ 02JAN14 TO 02JAN27 ”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.
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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        



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

Applicant’s Issues

 1.        The Applicant would like to have his RE-code changed.
 2.       The Applicant contends his discharge is improper and inequitable , because he was wrongfully diagnosed as being cocaine dependent and there was no proof or basis for his diagnosis of cocaine dependence , therefore he did not fraudulently enlist.
Decision

Date: 20 1 3 0213             Location: Washington D.C .        R epresentation :

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

 The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. T he Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. The Applicant’s record of service included no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in non-judicial punishment or court-martial. On 28 January 2002 , the Applicant was diagnosed with major depressive disorder - Axis I, pr ovisional cocaine dependence; paranoia - Axis II; schizoid and narcissistic traits. The Applicant did not have a pre-service drug waiver for using illegal drugs prior to entering the Navy. The Applicant was notified for administrative separation by his command by reason of Defective Enlistment and Induction - Fraudulent Entry into Naval Service and Convenience of the Government - Physical or Mental Conditions. Based on the Applicant’s diagnosis and reported use of pre-service illegal drug s , command administratively processed for separation by reason of Defective Enlistment and Induction - Fraudulent Entry into Naval Service . When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel, but elected his right s to submit a written statement and request a General Court-Martial Convening Authority review.

Issue 1: (Nondecisional) The Applicant would like to have his RE-code changed. 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 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.
: (Decisional) ( ) . The Applicant contends his discharge is improper and inequitable , because he was wrongfully diagnosed as being cocaine dependent and there was no proof or basis for his diagnosis of cocaine dependence, therefore he did not fraudulently enlist. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was wrongfully diagnosed for cocaine dependency. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. The Applicant discussed in his statement to the NDRB that he had recanted his statements of severe cocaine use prior to enlisting in the Navy. Regardless of the fact that th e Applicant used or did not use cocaine prior to enlisting, his statement during service that he had a significant pre-service history of drug use was the basis for discharging him for Fraudulent Entry. The Applicant’s record s reflect he was seen by the medical staff at the Mental Health Department, Naval Hospital, Great Lakes, IL, on several occasions for a mental condition. In late December 2001 , he was admitted to the hospital and diagnosed with delusional disorder due to paranoia and apparent confusion at times. The Applicant was recommended for administrative separation before h e was later diagnosed with major depressive disorder - Axis I; provisional cocaine dependence; paranoia - Axis II; schizoid and narcissistic traits. Based on his diagnosed conditions, the Applicant met the requirements for separation by reason of Convenience of the Government - Physical or

Mental Conditions. The Applicant was notified of separation processing for Fraudulent Entry and Physical or Mental Conditions, and the Separation Authority, after reviewing the facts and circumstances of this case, ordered the Applicant to be discharged Uncharacterized for Fraudulent Entry - Drug Abuse.

An Uncharacterized discharge is warranted when separation is initiated while a member is within the first 180 days of continuous active duty except when the characterization of service as Under Other Than Honorable Conditions (UOTHC) is authorized or Honorable is clearly warranted. Although the Applicant had a 14-day period of unauthorized absence, the Separation Authority did not order an UOTHC discharge, and there was no evidence of unusual circumstances involving personal conduct and performance that would merit an Honorable characterization. Since the Applicant served only 1 68 days, an Uncharacterized discharge is the most appropriate characterization of service . Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain , DRUG ABUSE . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum for additional information.

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 32, effective 26 April 2001 until 21 August 2002,
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 .


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review.

 Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 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 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

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 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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