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

 
ex-STGSN, USN
Docket No. ND04-00437

Applicant’s Request

The application for discharge review was received on 20040121.  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 20041015.  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 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, as stated

Applicant’s issues, as stated on the application:

1.  “I refused Anthrax Vaccination at departure of Westpac Cruise.  I put in a request to C.O. USS FLETCHER DD-992 to remain in service during refusal.  My request was denied to command rules and my command was told that any service member who refused Vaccination would not be allowed to accompany their command into the Middle East for their own safety.  I was kept on board throughout Westpac from 1998 0831 to 1999 0226.”

Documentation

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

Copy of Record Request
Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	960320 - 960728	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  960729		Date of Discharge:  990402

Length of Service (years, months, days):

	Active:    02  08  04
	Inactive:  None

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

Education Level:  12			AFQT:  73

Highest Rate:  STGSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*	Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  Pistol Marksman Ribbon, SSDR

Days of Unauthorized Absence:  None

*No Marks Available

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:

980913:	NJP for violation of UCMJ, Article 92: Failure to obey an order an regulation.
	Award:  Forfeiture of $200.00 pay per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

990101:	Recommendation for advancement to STG3 withdrawn this date due to CO’s Mast for violation of UCMJ, Article 92 on 980913.

990402:	Applicant discharged general (under honorable conditions) by reason of misconduct due to the commission of a serious offense per MILPERSMAN 1910-142 [Extracted from DD Form 214].

NO DISCHARGE PACKAGE AVAILABLE

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990402 with a general (under honorable conditions) for misconduct due to commission of a serious offense (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).    

Issue 1:  The Department of Defense has determined that personnel whose duties are essential to mission critical capabilities be vaccinated against anthrax, both for their personal protection and for success of the military mission.  The NDRB determines the propriety and equity of issues based on existing policies, orders and regulations governing the Department of the US Navy.  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 evidence of record does not demonstrate the Applicant was not responsible for his actions or that he should not be held accountable.  The award of NJP for violating the UCMJ, Article 92 was proper and equitable; and upgrade to honorable would be inappropriate.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  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 9, paragraph 9.3, EQUITY OF THE DISCHARGE. 

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 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

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