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

 ex-ET3, USN
Docket No. ND00-00950

Applicant’s Request

The application for discharge review, received 000731, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested 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 010209.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was four to one that the character of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Furnished by the FDA, an information packet containing the Anthrax vaccination label and acceptance criteria, revealed that the long term studies had never been conducted.  The label implies effectiveness regarding cutaneous exposure however never mentions effectiveness regarding inhaled exposure.

2.  The discharge was inequitable because it was based on an isolated incident following 61 months of distinguished service.

Documentation

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

Copy of DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	931209 - 940912	COG

Period of Service Under Review:

Date of Enlistment:  940913		Date of Discharge:  991018

Length of Service (years, months, days):

	Active:    05  01  06
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  77

Highest Rate:  ET2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF			Behavior:  NMF		OTA:  NMF

Military Decorations:  NAM

Unit/Campaign/Service Awards:  NDSM, SSDR with 1 Bronze Star, Letter of Commendation, GCM

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

990812:	NJP for violation of UCMJ, Article 92: Failure to obey an order or regulation, having knowledge of a lawful order issued by the Commanding Officer to submit to the Anthrax vaccination, fail to obey the same by refusing the vaccination on 6Aug99.
	Award: Forfeiture of $714 per month for 2 months, restriction and extra duty for 45 days, reduction to ET3.  No indication of appeal in the record.

990814:	Retention Warning:  Advised of deficiency (Violation of the UCMJ, Article 92: Failure to obey an order or regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

991008:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

991008:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

991105:	Commanding officer directed discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.  Commanding officer’s comments (verbatim): Despite counseling from both onboard IDC and clinic physicians, Petty Officer (applicant) refused to submit to the Anthrax vaccination.  He was taken to nonjudicial punishment 12 August 1999 and awarded punishment pr encl 92).  Despite the NJP, Page 13 warning and continued counseling, he continues to refuse to take the shot.  I have chosen not to pursue further NJP, but he is in violation of the page 13 warning.  The command is preparing to forward deploy to an area of high potential for exposure to biological warfare agents, where Petty Officer (applicant) would be a liability.  Petty Officer (applicant) performed well through out his Naval career warranting a general discharge.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 991018 general (under honorable conditions) for misconduct due to commission of a serious offense (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).

The applicant’s first issue states:  “Furnished by the FDA, an information packet containing the Anthrax vaccination label and acceptance criteria, revealed that the long term studies had never been conducted.  The label implies effectiveness regarding coetaneous exposure however never mentions effectiveness regarding inhaled exposure.”  The NDRB found that despite the applicant’s concerns with the anthrax vaccine, he clearly was in violation of the UCMJ Article 92.  The Board noted that after his NJP, the applicant was issue a Page 13 Counseling/Warning, and despite formal warnings refused to comply with a lawful order.  Relief is not warranted.

The applicant’s second issue states:  “The discharge was inequitable because it was based on an isolated incident following 61 months of distinguished service.”  The Board found that despite his otherwise creditable service, the applicant’s enlistment was marred by his NJP for violation of UCMJ Article 92 as well as subsequent counseling.  Relief is not warranted.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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, an error or injustice 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, may be considered by the NDRB.  The applicant failed to provide any post service documentation for the Board’s consideration.

The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 "afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023