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

 ex-CTR3, USN
Docket No. ND03-00327

Applicant’s Request

The application for discharge review was received on 20021217.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to convenience of the government.  The Applicant requests 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 20031205.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  I received a General-Under Honorable discharge for not taking the anthrax vaccine.  I was ordered to take it during a very controversial time.  There was a lot of information and disinformation with regards to the vaccine.  I had about a year left to the end of my enlistment and was worried about side effects.  There were reports of military pilots that had complications due to the vaccine that took them out of flying status.  My intention was to find work as a commercial airline pilot after I finished my enlistment.  This all lead to my final decision not to take the vaccine.”

“2.  I was able to find work shortly after the navy as an airline pilot.  I have been fortunate in my civilian career.  I have kept up with the vaccine program and there have been some definite improvements.  My confidence has risen to the point that I joined the naval reserves and am prepared to take the vaccine when required.  My original decision not to take the vaccine was one of the hardest of my life.  I am glad to be rectifying that decision to a point by serving my country again”

“3.  In 1999, the anthrax vaccine implementation plan called for only those personnel with orders to high-threat areas to begin the series.  Under my billet, I was not eligible to begin the series.  I brought this to my command attention an unfortunately had no response.  I am very regretful of the decision I made, but it hardly seemed fair to have our sister command following the rules of implementation and mine not.  This disparity administration created a lot of unfair punishment.”

“4.  I tried everything that I could to fulfill my original commitment to the navy.  The characterization of my discharge was inequitable and inconsistent with the policies of the time.  This was an isolated incident, and my military record otherwise speaks for itself.  Since getting out I have been a contributing member of society.  My position as an airline pilot shows that I am responsible.  My reserve unit’s commanding officer can attest to my ability to follow orders and do the job required of me.  I ask that you strongly consider changing my discharge to, “Honorable” and the reason for discharge to, “Convenience of the government.”

Documentation

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

Copy of DD Form 214
Letter of Recommendation dated October 16, 2002
Character Reference Letter dated September 6, 2002
Anthrax Vaccine Availability Information Letter dated December 16, 1999
Letter on Anthrax Policy from Commanding Officer, Naval Security Group Activity, Rota, Spain (2 pages). 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930505 - 930906	COG
	Active:   USN 			930907 - 970514	HON

Period of Service Under Review:

Date of Enlistment:  970515		Date of Discharge:  000512

Length of Service (years, months, days):

	Active:    02  11  28
	Inactive:  None

Age at Entry:  27			Years Contracted:  4 (1 month extension)

Education Level:  14			AFQT:  89

Highest Rate:  CTR2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.33 (3)	Behavior:  3.33 (3)		OTA:  3.62

Military Decorations:  None

Unit/Campaign/Service Awards:  SASM, NDSM, NEM, SSDR(2), GC (2), NAM, AFOUA (3), NUC (2), MUC, NAVY”E”RIBBON, EPSM, AFSM

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:

970515:	Reenlisted for 4 years.

000124:	Memorandum for the Record (Applicant directed to report to Naval Station Rota immunization clinic to begin the Anthrax vaccination series).

000125:	Retention Warning:  Advised of deficiency (On or about 0800, 000125 you failed to report to the Naval Station, Rota Hospital to begin the required Anthrax Vaccination program as ordered by CTRCS P_ R_ in accordance with DoD and Navy policy.  This order is a requirement for all assigned personnel in a Direct Support Operations billet.  Your actions are in violation of the UCMJ, Article 92 (failure to obey order or regulation), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

000126:	Memorandum for the Record: (Applicant refusal to take Anthrax vaccination as ordered)

000216:	NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
	Award:  Forfeiture of $778.35 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-4.  Appealed 000223.  Appealed denied 000228.

000410:	Memorandum for the Record (Applicant directed to report to Naval Station Rota immunization clinic to begin the Anthrax vaccination series).

000413:	Counseling warning: (On or about 01300, 000411 you were ordered to begin required Anthrax Vaccination program at the Naval Station, Rota Hospital as ordered by Commander H_, Naval Security Group Activity Operation Officer in accordance with applicable DoD and Navy policy.  This order is a requirement for all assigned personnel in a Direct Support Operations billet.  Your actions are in violation of the UCMJ, Article 92 (failure to obey order or regulation), and you are subject to disciplinary action and/or administrative separation.

000413:	Applicant notified of intended recommendation for discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense-refusal to take Anthrax Vaccinations.

000413:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

000414:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense-refusal to take anthrax vaccination.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000512 with a characterization of 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).

Issue 1 and 3:  The issues you raise regarding the legality of the Department of Defenses’ (DOD) Anthrax Vaccination program are beyond the purview of the NDRB to address.  DOD has determined that personnel whose duties are essential to mission critical capabilities are vaccinated against anthrax, both for their personal protection and for success of the military mission.  The NDRB has no authority to question this determination by DOD.  In it’s review of cases, NDRB is required to adhere to the policies and regulations established by the Department of Defense in determining the propriety and equity of a discharge.  In cases involving separation where the member refused the anthrax vaccination, NDRB review is limited to a determination as to whether the member’s case was procedurally correct, and whether his case received the same disposition as those similarly situated.  In your case, the NDRB found that your case was processed in accordance with established procedure and that your discharge was equitable.  In this regard, a characterization of service of general (under honorable conditions) was warranted since your record of service constituted a departure from that expected of a Sailor in the U.S. Navy.  The record does not contain evidence that you were not responsible for your actions or should not be held accountable.  The award of NJP was proper and equitable.  An upgrade to honorable or a change to the narrative reason for separation would be inappropriate.  Relief is denied.

Issue 2 and 4:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (B, Part IV).  However, 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, a procedural error or inequity 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, is considered.  The applicant provided two letters of recommendation as documentation of his post-service.  The applicant's efforts need to be more encompassing than those provided.  For example, the applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities, in order for consideration for clemency based on post-service conduct.  At this time, the Applicant has not provided sufficient documentation of good character and conduct.  He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Relief denied.

The NDRB noted an administrative error on the original DD Form 214.  Block 18 did not reflect the Applicant’s previous four years of honorable service.  The Board notified Commander, Naval Personnel Command, Millington, TN and recommended the DD Form 214 be corrected or reissued.   

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 28, effective 
30 Mar 00 until 29 Aug 00, 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