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

 ex-PFC USMC
Docket No. MD02-00304

Applicant’s Request

The application for discharge review, received 020123, 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020829.  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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN Par. 6210.6.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I was discharged in May of 2000 for refusing the Anthrax vaccination.  The reason I refused is a concern for my health.  I asked if they could send me to a command back in the States, but that request was denied.  I did not want out of the Corps, but my health took precedence.  If the vaccination had not been required, I would still be serving my country with honor.  Please take this into consideration when reviewing my case.

Documentation

Only the service and medical records were reviewed, as the applicant did not provide additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USMCR(J)		980623 - 981228	COG

Period of Service Under Review:

Date of Enlistment:  981229		Date of Discharge:  000530

Length of Service (years, months, days):

	Active:    01  05  02
	Inactive:  None

Age at Entry:  17 (Parental consent)

Years Contracted:  4 

Education Level:  12			AFQT:  86

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.3 (5)		Conduct:  4.2 (5)

Military Decorations:  None

Unit/Campaign/Service Awards:  Rifle Marksman 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:

990804:	Counseled for deficiencies in performance and conduct [failed to meet Physical Fitness Test Standards, by performing below the minimum requirement for the PFT].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

990810:	NJP for violation of UCMJ, Article 134:  on or about 990716, violate Florida Statue 562.111, by wrongfully consuming alcohol under the legal age limit of 21.
Awarded forfeiture of $479.00 per month for 1 month (suspended for 3 months), and reduction to E-1.  Not appealed.

000204:	Counseled concerning the Anthrax Vaccine Immunization Program.

000216:	Counseled for deficiencies in performance and conduct [refusal to submit to anthrax vaccination in accordance with the force protection plan established by the DoD].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

000223:	NJP for violation of UCMJ, Article 90:  After being ordered by the Commanding Officer of VMFA-212 to submit to the Anthrax vaccination, did so refuse to comply with such order; violation of UCMJ, Article 92: on or about 1030, 11FEB00, having knowledge of SECNAVINST 6230.4 (Dept of Navy Anthrax Vaccination Implementation Plan) did violate such order by not submitting to the Anthrax Vaccination.
	Awarded forfeiture of $563.00 per month for 2 months, restriction for 60 days, and reduction to E-2.  No indication of appeal in the record.

000418:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense; specifically, violating a lawful order by wrongfully refusing to submit to an anthrax vaccination.

000420:	Applicant advised of 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.

000420:	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 member's violation of a lawful order by wrongfully refusing to submit to an anthrax vaccination. 

000510:	SJA review determined the case sufficient in law and fact.

000511:	GCMCA [CG, 1st MAW] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

000523:	Counseled for deficiencies in performance and conduct [violation of Article 92 - in particular Squadron Order 11104.1R by maintaining an unauthorized item in your BEQ room].  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000530 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).

Issue 1.  The applicant’s refusal to take the Anthrax vaccination is considered a serious offense.  The applicant was aware of the consequences of his actions, as noted on the page 11 entry he signed on 000216.  The Board’s charter limits its review to a determination on the propriety and equity of the discharge.  In the applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s discharge was proper and equitable.  The applicant’s discharge characterization accurately reflects his service to his country.  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.  Relief not warranted.

The applicant 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.  Representation at a personal appearance hearing is recommended but not required.  

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 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 general 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 “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