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

ex-PVT, USMC
Docket No. MD01-00532

Applicant’s Request

The application for discharge review, received 010315, 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 010906.  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 three to two that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge was inequitable because there are no long term studies done on the Anthrax Vaccine.

Documentation

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

Listing of Anthrax Vaccine Refusers (2pgs)
Army Faulted on Germ War Research Letter (2pgs)
Newspaper Article (Firm Loses anthrax vaccine formula)
Article from Coroner: Anthrax Vaccine Linked to Michigan Death (2pgs)
Article on Michigan Death Linked to Anthrax (2pgs)
Article on Pentagon Probing Possible Anthrax Vaccine Death (2pgs)
Article on Suspension of Anthrax Program Urged (3pgs)
Article on House Panel Criticizes Anthrax Plan (3pgs)  

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		None
	Inactive: USMCR(J)		980414 - 980427	COG

Period of Service Under Review:

Date of Enlistment:  980428		Date of Discharge:  990709

Length of Service (years, months, days):

	Active:    01  02  12
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 

Education Level:  16			AFQT:  72

Highest Rank:  PFC

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.5 (2)			Conduct:  4.2 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  Marksman Rifle Badge 

Days of Unauthorized Absence:  None 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

Chronological Listing of Significant Service Events:

990424:	Summary Court-Martial.
	Charge I:  violation of the UCMJ, Article 92: Failed to obey a lawful order issued by Major W.P. B____ to receive his anthrax vaccination on or about 990219.
	Finding:  to Charge I and the specification thereunder, guilty.
	Sentence:  Forfeiture of $639.00 pay per month, reduced to E-1, confinement for 30 days.
	CA action 990505:  Confinement for 30 days reduced to 15 days with the rest of the sentence approved and ordered executed.

990527:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

990603:  	Applicant advised of his rights and having elected 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.  Have included written statement in rebuttal to this proposed separation.

990608:	Counseled for deficiencies in performance and conduct.  [Refusal to receive anthrax vaccination.  Specifically, your refusal to receive the anthrax vaccination, which resulted in your summary court-martial on 990424].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990615:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  The factual basis for this recommendation was PVT D____ Summary Court-Martial for refusal to receive the Anthrax vaccination.   

990621:	SJA review determined the case sufficient in law and fact [Extracted from CO's message dtd 990615].

990622:	GCMCA [Commander, 1st Marine Division] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990709 under other than honorable conditions for misconduct due to the commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

The applicant states his discharge is inequitable because of the lack of long term studies on the Anthrax vaccine.  This assertion has no bearing on the fact of his refusal to obey a lawful order and subsequent conviction at a trial by Summary Court Martial for the above offense.  On 990407 the applicant waived his right to an Administrative Discharge board and certified his understanding that his discharge would be under other than honorable conditions.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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.  However, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until present). 

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92, failure to obey a lawful order.

C.  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.  

D.  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.

E.  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 “afls10.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