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

   
ex-PNSA, USN
Docket No. ND04-01169

Applicant’s Request

The application for discharge review was received on 20040716.  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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041222.  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 am requesting an upgrade of my discharge simply because, as a serviceman in the navy, I served without fail, or problems.  My service record is free of any non-judicial punishments, save my refusal of the anthrax vaccination.  I have enclosed with this plea – supporting documents that simply illustrate the obvious controversy surrounding the vaccine.  At the time of my refusal there were no substantial studies, or investigations into the matter.  I wish not too argue the efficacy nor the safety of the vaccine, simply that we were not provided proper evidence to risk the long-term safety of my family.  The bill introduced in Congress demonstrates that Government officials still felt the need to halt the program in support of further study.  The articles enclosed illustrate the state of controversy – Pros and Cons.  My Department spoke well of my conduct, hence the Honorable Conditions.  I just need by benefits, Gentlemen.”

Documentation

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

Copy of Department of Defense Anthrax Vaccination Moratorium Act (Introduced in the House) (3 pages)
The Military Vaccine Education Center [webpage] (4 pages)
US Military Finds That Anthrax Shots May Cause Birth Defects [webpage article] (3 Pages)
Anthrax vaccine a deadly defense? [webpage article] (7 pages)
Defense Dept. Halts Anthrax Vaccinations [webpage article] (2 pages)
Anthrax Vaccine Is Safe, Is Effective, Says National Academy of Sciences [webpage article]

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	950725 - 960630	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  960701		Date of Discharge:  990629

Length of Service (years, months, days):

	Active:    02  11  29
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  61

Highest Rate:  PNSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  Navy “E” Ribbon (2), AFEM, SSDR (2)

Days of Unauthorized Absence:  None

* No Marks Found in service record.  

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:

981119:	Applicant’s statement to medical care provider regarding anthrax vaccination.

981221:	NJP for violation of UCMJ, Article 90:  Disobeying a superior commissioned officer in that, member, did, on or about 15 Dec 98, willfully disobey a lawful order of Captain W. L. H_, JR., to take the anthrax vaccination.
	Award:  Forfeiture of $519 pay per month for 2 months, restriction for 60 days, reduction to E-2.  No indication of appeal in the record.

990430:	Applicant’s Statement:
“To Whom it may concern, This statement is meant to clarify my position surrounding my refusal of the Anthrax vaccine.  I feel it will be unnecessary to state my specific reasons for my decision being that, at this point it will serve no productive purpose other than instigation.  I have stayed true to how I feel, however; I regret the unfortunate outcome.  Especially since I am married and have a family.  My naval career looked prosperous up to this point, I have an outstanding record that is reflected on my evaluations.  I have served the Navy with pride without an infraction, save this instance, for almost 3 years.  My family and I are truly sorry for the inconvenience and we never meant to aggravate the system or hinder the Navy’s mission.”

990609:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

990609:	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 and to submit a written statement.

990621:	Commanding Officer recommended discharge with a General (Under Honorable Conditions) by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim):  “PNSA V_ (Applicant) disobeyed a lawful order from his commanding officer to take the Anthrax vaccination.  His conduct was detrimental to good order and discipline  Based on his 21 Dec 98 NJP and his refusal to take the Anthrax vaccination, I strongly recommend immediate separation from the naval service with a General characterization.

990623:	CNMPC approved the Applicant's General discharge 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 19990629 with a General (Under Honorable Conditions) characterization for misconduct due to commission of a serious offense (A & 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.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for willfully disobeying the lawful order of a superior commissioned officer, a serious offense, thus substantiating the misconduct for which he was separated. Regulations limit the Board’s 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 consider his discharge proper and equitable.  The issues you raise 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.  The 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 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 your actions or should not be held accountable.  The award of NJP was proper and equitable; and upgrade to honorable would be inappropriate.  In addition, there is no requirement or law that grants recharacterization solely on the issue of obtaining veterans’ benefits and this issue does not service to provide a foundation upon which the Board can grant relief.  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.  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.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 90, disobey a lawful order from a superior commissioned officer, if adjudged at a Special or General Court Martial

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023