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

FOR OFFICIAL USE ONLY

 ex-SR, USN
Docket No. ND06-00960

Applicant’s Request

The application for discharge review was received on 20060713.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070510.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety to 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 by reason of defective enlistment and induction due to erroneous entry – (drug abuse).

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity:  Never used drugs
Equity:  Post-service

Documentation

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

Applicant’s DD Form 214
Character Reference ltr from Rev. J_ L_, undated
Letter from D_ F_, Teap Specialist, Crass Job Corps Center, dated April 21, 2006 with attached drug testing reports (3 pages)
Letter from Applicant, dated June 29, 2006

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20040917 - 20050914	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20050915		Date of Discharge:  20050929

Length of Service (years, months, days):

	Active:    00  00  15
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4 (12-month extension)

Education Level:  11 GED				AFQT:  71

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  *			Behavior:  *			OTA:  *

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  None

* Not Available

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

UNCHARACTERIZED/ERRONEOUS ENTRY – (DRUG ABUSE), authority: MILPERSMAN, Article 1910-130 (formerly 3620280).

Chronological Listing of Significant Service Events: 

050920:	Accession urinalysis screening:  Applicant positive for THC.

050922:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as General (Under Honorable Conditions) by reason of defective enlistments and inductions - erroneous enlistment.

050922:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

050923:	Commanding Officer, Recruiting Training Center, directed discharge with an uncharacterized service by reason of defective enlistment and induction due to erroneous enlistment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050929 by reason of defective enlistment and induction due to erroneous enlistment - drug abuse (A) with a service characterization of uncharacterized.  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 (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant requests an upgrade of his characterization of discharge to honorable.  By 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 servicemember’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 less than one month in the military to warrant a change of discharge to honorable.

The Applicant contends that his positive drug test was an error because he had not used drugs.   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 his contention.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.  

The Applicant provided documentation of post-service accomplishments in support of his applicant for upgrade.  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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not sufficient to mitigate the conduct, which precipitated the discharge.  Relief denied.

The Applicant states that he would like an upgrade of his discharge in order to return to the military.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces.  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.  

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 additional evidence related to this discharge.  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), re-issued October 2002, effective 22 Aug 2002 until Present, 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 V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  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 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  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”.

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