ex-FR, USN
ND06-01064

Current Discharge and Applicant’s Request:

Application Received:  				20060814     
Reason for Separation:				Defective Enlistments and Inductions - 									Erroneous Enlistment
Character of Service:				
Discharge Authority:				MILPERSMAN 3620280
Last Duty Assignment/Command at Discharge:	RTC GLAKES IL

Applicant’s Request:
	Narrative Reason change to:		NOT APPLICABLE
	Characterization change to:		
	Review Requested:			
	Representation:  				
	Issues (as summarized by NDRB):		1. Change RE Code, desire to re-enlist
						2. Reason for discharge improper because received enlistment waiver 

Decision:

Date of Decision:					20070712
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

By a vote of  the Characterization shall  .	
By a vote of  the Reason for Discharge shall   -									ERRONEOUS ENLISTMENT.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19990414-19990509 
Active:        		               		NONE
Period of Service Under Review:
Date of Enlistment:  				19990510     
Years Contracted:  				;        
Date of Discharge:				19990602
Length of Service:				00  Yrs  00  Mos  23  Days (does not exclude lost time, if any)
Time Lost During This Period:			

Education Level:  				
Age at this Enlistment:  				
AFQT:  						54
Highest Rate/Rank:				FR
Performance Evaluation Averages:			NOT APPLICABLE

Awards and Decorations (as listed on the DD Form 214):  NONE

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

19990316:	Applicant acknowledged conviction of one alcohol related incident on Navy Alcohol and Drug Abuse Screening Certificate.

19990329:	Applicant acknowledged alcohol abuse (OWI September 98), presently in counseling, during MEPS enlistment medical examination.

19990414:	Applicant granted waiver for pre-service one Chart “C” offense (OWI) - alcohol related driving incident.

19990510:	Applicant certified that he had not abused alcohol since date certifying alcohol usage (19990316).  Applicant did not request an individual evaluation.

19990526:	Applicant acknowledged being advised to seek treatment from a civilian treatment facility.

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

19990525:	Substance Abuse evaluation by J_ E. D_, Ph.D., Clinical Psychologist, Recruit Evaluation Unit, Branch Clinic, Naval Hospital, Great Lakes, IL.
	Applicant stated alcohol use “if I wasn’t working, I was drinking” and “drank Fri-Sat-Sun, from 4 beers to 18, pattern x 6-9 months”.  Stated has been involved in drug sales (marijuana, cocaine) and has not been treated prior to entry for substance abuse or dependence.
	Diagnosis:
	AXIS I:  Alcohol Dependence, 303.90, EPTE without physiological dependence
		Depressive Disorder, NOS, 311, EPTE 
	AXIS II:  Mixed Personality Disorder with Antisocial Features, 301.9, EPTE
	Applicant appears to be questionable historian, is Alcohol Dependent.  Treatment strongly recommended.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				NOTIFICATION PROCEDURE
Date Notified:					19990526
Reason for Discharge:				Defective Enlistments and Inductions – 
							Erroneous Enlistment due to alcohol dependence
Least Favorable Characterization:			

Date Applicant Responded to Notification:		19990526
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			       
GCMCA Review				

Administrative Board Date:			NOT APPLICABLE
Recommendation of Commanding Officer (date):	NOT APPLICABLE (LOCAL SEPARATION)       
Separation Authority (date):			COMMANDING OFFICER, RECRUIT TRAINING COMMAND 								(19990527)
Narrative reason directed:				Defective Enlistments and Inductions - Erroneous 								Enlistment
Characterization directed:				UNCHARACTERIZED
Date Applicant Discharged:			19990602

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				1
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation	 (Describe Below)		1

        Total Number of Pages:				2

       Description of Other Documentation:
       	Confidential Progress Report from Adult & Family Service, Inc.     

Discussion

Issue 1:   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 regarding .  

Decisional Issues:

Issue 2 ().  A servicemember may be separated on the basis of erroneous enlistment when the enlistment would not have occurred if the relevant facts had been known by the Navy Department or had appropriate directives been followed, it was not the result of fraudulent conduct on the part of the member, and the defect is unchanged in any material respect.   A member may be separated for this reason on the basis of alcohol dependency provided the member was diagnosed as alcohol dependent within the first 180 days of initial entry on active duty.  The diagnosis must have been completed by a physician or clinical psychologist.  In the Applicant’s case, a clinical psychologist diagnosed him as alcohol dependent within 15 days of his initial entry on active duty.  The evidence of record supports that diagnosis.  The record supports the Applicant’s contention that he revealed his pre-service alcohol related driving conviction; however, he was not discharged for fraudulent enlistment for failing to reveal that offense, nor was he discharged for the offense itself.  He was discharged because competent medical authority determined that he had an alcohol dependence which, if known by the Navy Department prior to his enlistment, would have prevented him from enlisting.  Relief is not warranted on this issue.  

By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized 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 1 month in the military to warrant a change of discharge to honorable.  The Applicant should be aware that, with respect to nonservice-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.

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.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Minority Opinion

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 until 12 Jun 01, 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, 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 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.”

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.  

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 Board 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 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, 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 “PTSD.”  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 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.  

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