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

 ex-SN, USN
Docket No. ND04-01246

Applicant’s Request

The application for discharge review was received on 20040806.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222.  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 (ENTRY LEVEL SEPARATION)/ERRONEOUS ENTRY - DRUG ABUSE, authority: NAVMILPERSMAN, Article 1910-130 (formerly 3620280).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“ I am requesting that my re-entry code be changed to allow me to re-enter the Navy, complete my basic training and utilize my technical education to fulfill my service obligation to do my part for my country.  When I enlisted in the Navy in 1998, I passed the qualifying tests for placement in the nuclear program and I very much want to be allowed to re-enter that program.  On August 18, 2004, I will have successfully completed my training as a Laser Technician and receive my Associates of Applied Science Degree from Indian Hill Community College, Ottumwa, IA.

The reason for my administrative separation was my failure of the urine test for THC, upon entry at the recruit training station at the rehabilitation counseling program and no longer use marijuana or any illegal substances.  This is something in my past and should not prevent me from moving on with my career in the Navy.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Copy of Commanding Officer’s Administrative Separation Authorization Letter
Copy of Notification Procedure Letter, dtd 4 May 98
Copy of Notification Procedure Acknowledgement Letter, dtd 4 May 98
Copy of NAVDRUGLAB Urinalysis Report, dtd 1 May 98
Copy of Academic Program on Laser/Electro-Optics Technology
Copy of Certificate of Completion (Outpatient Educational Program) dtd 15 February 2001  

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	980324 - 980422	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  980423		Date of Discharge:  980508

Length of Service (years, months, days):

	Active:    00  00  16
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  89

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB*		Behavior:  NOB		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*Not Observed 

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

UNCHARACTERIZED (ENTRY LEVEL SEPARATION)/ERRONEOUS ENTRY - DRUG ABUSE, authority: NAVMILPERSMAN, Article 1910-130 (formerly 3620280).

Chronological Listing of Significant Service Events:

980501:	NAVDRUGLAB GREAT LAKES, IL, reported Applicant’s urine sample, received 980421, tested positive for THC.

980504:	Applicant notified of intended recommendation for discharge with an uncharacterized service by reason of defective enlistment and induction due to erroneous enlistment as evidenced by a confirmed positive entrance urinalysis test result for marijuana.

980504:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

980505:	Commanding Officer recommended discharge with an uncharacterized service by reason of defective enlistment and induction due to erroneous enlistment as evidenced by a confirmed positive entrance urinalysis test for marijuana.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980508 with an entry level separation (uncharacterized) for defective enlistment and induction due to erroneous enlistment - drug abuse (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

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.  Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  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.

By regulation, members discharged within the first 180 days of enlistment are given characterization of service "Uncharacterized" or entry-level separation unless there were unusual circumstances regarding performance or conduct, which would merit an "honorable" characterization.  Applicant's service record did not contain any unusual circumstances during his less than 1 month in the military to warrant a change of discharge to "honorable."  
 
The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that 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.  The applicant provided a copy of a completion certificate from a alcohol and drug education program and a copy of a college curriculum description  as documentation of his post-service.  The applicant's efforts need to be more encompassing than those provided.  For example, the applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.  Therefore, no relief will be granted.  

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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 until 12 Jun 2001, Article 1910-130 (formerly 3620280), 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, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  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