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

 ex-PHAA, USN 
Docket No. ND03-00436

Applicant’s Request

The application for discharge review was received on 20030122.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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 20031215.  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.  “Dear Sir or Madam:

Subject:  Discharge of G_ V_ B_, SSN (deleted)

I am submitting the enclosed application for your consideration regarding the discharge I received from the United States Navy in November of 1999.

The circumstances surrounding my discharge are somewhat unusual. I was attached to VP-9 as an Aerial Photographer’s Mate. The Squadron was scheduled to disperse the series of anthrax vaccinations to all Combat Aircrewmen beginning in the summer of 1999. In light of this announcement, I performed research on the inoculation including its history and potential side effects. The information I gathered cast a negative light on the vaccination.

I requested an XO Mast, where I could voice my concerns to my Executive Officer. My XO then referred me to the base medical unit. The Independent Duty Corpsman was unable to answer my questions, as he had no experience on the subject, but offered to gather what information he could. Approximately three weeks later I received a pamphlet he had located on the Food & Drug Administration’s web site, which I had already located during my own research.

On the day my crew was scheduled to begin the series of vaccinations, I refused along with other Shipmates. I was then briefed on the consequences that I would face, which could include a Court Martial, Captain’s Mast, dishonorable discharge, forfeiture of salary, and demotion in pay grade. I was given two days to make a decision on whether I would participate in the vaccination process.

During these two days, spoke with Dr. M_ N_ (a leading anthrax authority). Her recommendation was to avoid receiving the vaccinations. In listening to her advice, I refused the vaccination and was sent to Captain’s Mast. The punishment I was awarded included a demotion in rank, fined a half-month’s pay for two months, sixty days of restriction, and administrative separation. I was told at the end of Mast from the Command Master Chief that my punishment would not stand were I to change my mind and receive the vaccination.

I have conducted additional research on this topic since my separation from the U.S. Navy. I have found that the anthrax vaccination is not the demon it was once made out to be.

Since my discharge, I have continued to be a goal-oriented member of my community. I take pride in my continual quest for self-improvement and growth, which I am able to partially achieve through my continuing education at a state university. As another means of my growth, I am also currently serving our country in the Army National Guard.

Before being able to enlist in the National Guard Major General J_ C_ L_ questioned me before granting a waiver. I was asked that, if ordered today, would I take the anthrax vaccination. I replied that I would be the first in line, and will assist in educating my fellow soldiers. I have been selected to attend Officer Candidate School, and am waiting for the class-up date in May of this year.

My service record will show you that I was a model Sailor. I received numerous awards and commendations during my nearly five years of service. My evaluations will also show you high levels of competence in my rate and sound military bearing.

In closing, I respectfully request that my discharge from the United States Navy be upgraded from General/Under Honorable Conditions to Honorable. I dually request that my RE Code be changed to such that will allow me to continue service for our country as an active duty military member.

Your consideration in this matter is truly appreciated.

Respectfully,

G_ V_ B_”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	941130 - 950326	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  950327		Date of Discharge:  991105

Length of Service (years, months, days):

	Active:    04  07  09
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (12 months extension)

Education Level:  10 GED		AFQT:  65

Highest Rate:  PH3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.71 (7)	Behavior:  2.57 (7)		OTA:  3.06

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, ASM, SSDR (2), BER, MUC, N&MCAM, AFEM, 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:

990907:	NJP for violation of UCMJ, Article 90: Willfully disobeying superior commissioned officer.
	Award:  Forfeiture of ½ month’s pay for 2 per months, restriction for 60 days, reduction to PHAA.  No indication of appeal in the record.  [Extracted from Evaluation Report & Counseling Record, dated 991105.]

990907:	Retention Warning:  No further information found in service record.  [Extracted from Commanding Officer’s letter dated 991103.]

991103:	Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense.

991103:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

991103:	Commanding Officer strongly recommended discharge under honorable conditions (general) 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 19991105 under honorable conditions (general) 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.  The issues the Applicant raises regarding the legality and safety 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 the Applicant’s case, the NDRB found that his case was processed in accordance with established procedure and that the discharge was equitable.  In this regard, a characterization of service of general (under honorable conditions) was warranted since the record of service constituted a departure from that expected of a sailor in the U.S. Navy.  The evidence of record does not demonstrate that the Applicant was not responsible for his actions or should not be held accountable.  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.  The award of NJP was proper and equitable; and upgrade to honorable would be inappropriate.  Relief is denied.

The NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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.  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