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

ex-ENEA, USN
Docket No. ND04-01300

Applicant’s Request

The application for discharge review was received on 20040816.  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 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: UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I refused three direct orders, they were all based on taking the anthrax vaccine.  I feel that I made an educated decision in regards to my health.”

2.  “I was cited for misconduct on my discharge.  I feel that my misconduct is a direct result of refusing the anthrax vaccine.  My work history, professionalism, evaluations, and letters of commendation show otherwise.”

Documentation

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

Applicant’s DD Form 214, 2 copies
Ltr frm Applicant dtd 040530
Applicant’s resume
21 pages frm Applicant’s service record
Reference frm R_ A_
Reference frm F.A.O. J_ R. M_, jr.
Reference frm T_ W_
Reference frm E_ A_ B_
6 pages of photos
DDG63 POD, 971003
High School Diploma
Copy of RTC emblem
Photo of Division Commander
A 1” binder of anthrax vaccination information, 154 pages

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	950630 - 960623	COG
	Active:  None

Period of Service Under Review:

Date of Enlistment:  960624		Date of Discharge:  990609

Length of Service (years, months, days):

	Active:    02  11  16
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  70

Highest Rate:  EN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.50 (4)	Behavior:  2.80 (5)		OTA:  2.82
[Marks extracted from evaluations provided by Applicant]

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (2), AFEM (2), NUC

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

990115:	NJP for violation of UCMJ, Articles 86, 92, 107 and 134 (conduct bringing discredit upon the armed forces).
Award: Forfeiture of $613 per month for 2 month(s), restriction and extra duty for 30 days, reduction to E-3.  No indication of appeal in the record.

990412:	Retention Warning:  Advised of deficiency (Violation of UCMJ Articles 86, 92, 107 and 134), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990412:	Applicant rcvd lawful written order to receive anthrax vaccination.

990413:	Applicant refused anthrax vaccination.

990414:	NJP for violation of UCMJ, Articles 92 and 113 (misbehavior of a sentinel).  
		Award:  RIR, extra duties and restriction for 45 das.

990414:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

990414:	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.

990415:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.  

990602:	CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990609 under other than honorable conditions for misconduct due to a pattern of misconduct (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).

Issues 1-2.  The Applicant contends that his work history, professionalism, evaluations and letters of commendation illustrate that he should get an honorable discharge and that his misconduct was “a direct result of refusing the anthrax vaccine.”  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by two nonjudicial punishment proceedings for 6 violations of the UCMJ.  The Applicant violated Articles 86, 92, 107, 113 and 134 of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief denied.  

The Applicant’s discharge characterization accurately reflects his service to this country.  Normally, to permit relief, a procedural impropriety or inequity must have existed during the period of enlistment in question.  No impropriety or inequity 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.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post- service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, employment record, documentation of community service and certification of non-involvement with civil authorities as examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  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 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.  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.

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

D.  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