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

FOR OFFICIAL USE ONLY

  ex-ENS, USNR
Docket No. ND05-00318

Applicant’s Request

The application for discharge review was received on 20041214.  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.  Subsequent to the application, the Applicant obtained representation by the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050811.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character and reason for the discharge shall change.  The discharge shall change to:  HONORABLE/ SECRETARIAL AUTHORITY, Separation Code “JFF”, authority: SECNAVINST 1920.6B.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“Applicant was given an administrative discharge for refusing to obey an illegal order to submit to the Anthrax Vaccination Implementation Program.  The United States District court recently ruled that the order is, and always has been, illegal and has issued a permanent injunction against the Department of Defense prohibiting them from ordering personel to submit to this vaccine without their consent.  Applicant respectfully requests that his discharge be upgraded to honorable.”

Additional issues submitted by Applicant’s counsel/representative (AMERICAN LEGION):

“Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we opine that while this Applicant’s characterization of service was proper and equitable at the time of his separation it is no longer just under current federal law and therefore warrants the Boards relief. 

Equity Issue:  We further aver on this former member’s behalf that his reason for discharge, misconduct, is no longer justified and therefore again warrants the Boards relief with amendment to Secretarial Authority. 
_______________________________________________________________________

In accordance with Title 32, CFR, Section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issues and following statement in supplement to the Applicant’s petition.

The Board’s attention is invited to an administrative error in Block 25 of DD Form 214, which should also include SECNAVINST 1920.6B.

Service Record:  The SR is incomplete.  In particular, the discharge package is missing.  Review of the available records reflect that this former member served honorably and without incident until awarded NJP on 990811 for VUCMJ, Article 92: disobeying a lawful order on 000718 by failing to submit to mandatory anthrax immunizations.  He received 30 days restriction and a punitive letter of reprimand.  His NJP was not appealed.  On 990922, he provided a detailed 3-page statement regarding his letter of reprimand and the justifications for his actions, which is of record.  He was discharged General (Under Honorable Conditions) due to misconduct as authorized by SECNAVINST 1920.6B and BUPERS Order 0950 of 000403 on 000430.

Applicant’s Contentions:  Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because the United States District court recently ruled that the order is, and always has been, illegal and has issued a permanent injunction against the Department of Defense prohibiting them from ordering personnel to submit to the vaccine with out consent.  

Supporting Evidence:  This Applicant has submitted a copy of the United States District Court for the District of Columbia decision, John Doe #1, et al, Plaintiffs, v. Donald J. Rumsfeld, et at Defendants, dated 041027, that he references in his issue in addition to copies of his service record for consideration.  We opine that the conclusions and order of that decision warrant emphasis and follows verbatim. 

     “HN28  This Court has an obligation to ensure that FDA follow the law in order to carry our its vital *51 role in protecting the public’s health and safety.  By refusing to give the American public an opportunity to submit meaningful comments on the anthrax vaccine’s classification, the agency violated the Administrative Procedure Act.  While the policy of submitting comments on an agency’s proposed order may be unusual, it is the course the agency chose to take and this Court shall ensure that the agency follows through on its commitment to the public.

     HN29  Congress has prohibited the administration of investigational drugs to service members without their consent.  This Court will not permit the government to circumvent this requirement.  The men and women of the armed forces deserve the assurance that the vaccines our government compels them to take into their bodies have been tested by the greatest scrutiny of all – public scrutiny.  This is the process the FDA in its expert judgment has outlined, and is the course this Court shall compel FDA to follow.”

     Accordingly, it is by the Court hereby

     ORDERED the Plaintiff’s Motion for Summary Judgment is GRANTED. The FDA’s Final Rule and Order is vacated and shall be remained to the agency for reconsideration in accordance with *52 this Memorandum Opinion and Order.  Unless and until FDA properly classifies AVA as safe and effective drug for its intended use, an injunction shall remain in effect prohibiting defendants’ use of AVA on the basis that the vaccine is either a drug unapproved for its intended use or an investigational new drug within the meaning of 10 U.S.C. § 1107.  Accordingly, the involuntary anthrax vaccination program, as applied to all persons, is rendered illegal absent informed consent or a Presidential wavier; and it is further

     ORDERED that, in light of the finding with regard to Plaintiff’s Motion for Summary Judgment, Defendant’s Motion for Summary Judge is DENIED.”

Basis for Issues:  SECNAVINST 5420.174D, Part V, Paragraph 503, which follows, in part, verbatim. 

    “A discharge shall be deemed to be equitable unless:

     a. In the course of a discharge review, it is determined the policies and procedures under which the applicant was discharged differ in material respects from policies and procedures currently applicable on a service-wide basis to discharges of the type under consideration provided that:

     (1) Current policies or procedures represent a substantial enhancement of the rights afforded a respondent in such proceedings; and 

    (2) There is substantial doubt that the applicant would have received the same discharge if relevant current policies and procedures had been available to the applicant at the time of the discharge proceedings under consideration.”

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

John Doe #1, et. al, v. Donald H. Rumsfeld, et al., No. 03-707, 2004 U. S. Dist. LEXIS 21668 (D.C.Dist.Ct. October 27, 2004) (9 pages)
Applicant’s DD Form 214 (Member – 4)
Applicant’s Law School Transcript, Northern Illinois University College of Law, dated January 3, 2005
Service Record Documents (39 pages)
Applicant’s Law School Transcript, Northern Illinois University College of Law, dated June 20, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR 		971030 - 980907	COG (To report OCS)
	Active:   USNR (OC)		980908 - 981210	HON (To Accept Comm.)

Period of Service Under Review:

Date of Commission:  981211	Date of Discharge:  000430

Length of Service (years, months, days):

	Active:    01  04  20
	Inactive:  None

Age at Entry:  23			Years Contracted:  8

Education Level:  16	

Highest Grade:  ENS

Final Officer Performance Evaluation Averages (number of marks):  All officer performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  Navy Pistol Sharpshooter Ribbon

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  SECNAVINST 1920.6B.

Chronological Listing of Significant Service Events:

990718:	Applicant acknowledged understanding of SECNAVINST 6230.4 dated 980429, “What Every Service Member Needs to Know About the Anthrax Vaccine” brochure and other related Anthrax vaccination information and that as a servicemember, understand the obligation to receive all mandatory vaccinations, including the Anthrax vaccine and that refusal of such vaccinations subjects myself to disciplinary action.  [Documentation submitted by Applicant].

990806:	Applicant notified of nonjudical punishment for violation of UCMJ, Article 92 – Failure to obey Order or Regulation and advised of his rights.  [Documentation submitted by Applicant].

990809:	Applicant advised of rights and having consulted with counsel, elected to accept nonjudicial punishment and not demand trial by court-martial.  Applicant indicated he would plead guilty of the offense and requested a personal appearance.  [Documentation submitted by Applicant].

990811:	NJP for violation of UCMJ, Article 92: 
Specification:  Having knowledge of a lawful order issued by Commander D_ E. R_, USN, Officer-in-Charge, Mil Dept, to submit to mandatory immunization(s) (ANTHRAX), an order which it was his duty to obey, did on or about 1300, 18 July 1999, fail to obey the same.
	Award:  Punitive Letter of Reprimand, restriction to the limits of Naval Submarine Base Pt. Loma for 30 days.

990903:	Punitive Letter of Reprimand issued to Applicant.

990907:	Applicant decided not to appeal the 11 August 1999 nonjudicial punishment.

990922:	Applicant’s Statement concerning the Punitive Letter of Reprimand.  

991004:	Commander, Military Sealift Command Pacific, reported to the Chief of Naval Personnel, via the Commander, Navy Region Southwest, of Applicant’s nonjudicial punishment on 11 August 1999 for violation of UCMJ Article 92 and the award of a punitive letter of reprimand and restriction to limits for 30 days.  The Commander’s comments:  “I recommend that Ensign B_ G. B_ (Applicant) not be retained on active duty until the expiration of his obligated active service and that he be required to show cause for retention in the U.S. Navy.  Additionally, I recommend Ensign B_ (Applicant) be detached from his current command, USNS NIAGARA FALLS (T-AFS 3).  Due to this misconduct on his part, I further recommend any promotion of Ensign B_ (Applicant) be delayed”.

991018:	Commander, Navy Region Southwest, forwarded Commander, Military Sealift Command Pacific, letter of 991004 to Chief of Naval Personnel recommending a board of inquiry to evaluate whether cause exists to retain Applicant in the Navy.

991208:	Chief of Naval Personnel advised Applicant that the Show Cause Authority reviewed the case and determined there is sufficient evident of record to separate you from the Naval Service.  Administrative action has been initiated based on misconduct due to the commission of a military or civilian offense, which, if prosecuted under the UCMJ, could be punished by confinement of six months or more; specifically , violation of the UCMJ, Article 92, violation of a lawful order as evidenced by NJP of 990811 and by substandard performance of duty, failure to demonstrate acceptable qualities of leadership required of an officer in your grade and failure to conform to prescribed standards of military deportment.  [Documentation submitted by Applicant].

000114:	Applicant acknowledged his rights, elected not to tender a resignation, and did not desire to submit a statement.  [Documentation submitted by Applicant].

000125:	Commander, Military Sealift Command Pacific, forwarded to CNP Applicant’s acknowledgement of rights and recommended separation from the Naval service with characterization of discharge as General (Under Honorable Conditions).  [Documentation submitted by Applicant].

000403:	DCNP issued separation order.

000430:	DD Form 214:  Applicant discharged with a character of service as general (under honorable conditions) due to misconduct by reason of commission of serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000430 with a general (under honorable conditions) for misconduct due to commission of a military or civilian offense, which, if prosecuted under the UCMJ, could be punished by confinement of six months or more (A and B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was inequitable (C).

Under applicable regulations, a discharge shall be deemed equitable unless it is determined that policies and procedures under which the Applicant was discharged differ in material respects from policies and procedures currently applicable on a service-wide basis provided that the current policies and procedures represent a substantial enhancement of rights afforded to the Applicant and there is substantial doubt that the Applicant would have received the same discharge if relevant current policies and procedures had been available to the Applicant at the time of the discharge proceedings.  The Applicant was discharged on 20000430 for misconduct due to commission of a military or civilian offense, which, if prosecuted under the UCMJ, could be punished by confinement of six months or more.  Specifically, the Applicant refused a direct order to take the Anthrax vaccination.  In the years between the Applicant’s discharge and his application to this Board, the United States District Court for the District of Columbia has issued an injunction prohibiting the Department of Defense’s use of the Anthrax vaccine on the basis that the vaccine is unapproved for its intended use or an investigational new drug within the meaning of applicable statutes.  Accordingly, the Court held that the involuntary anthrax vaccination program, as applied to all persons, is rendered illegal absent informed consent or a presidential waiver.  Subsequent to that ruling, the Court modified its order and permitted the voluntary administration of the anthrax vaccination pursuant to the terms of a lawful emergency use authorization under the Federal Food, Drug, and Cosmetic Act.

The Board concluded unanimously that the Applicant’s case falls squarely within the above equity provision.  Current policies and procedures have reduced the Department of Defense Anthrax vaccination program to voluntary status.  A sailor may rightfully refuse the vaccine without fear of action under the UCMJ or administrative discharge.  Such policies represent a substantial enhancement of the Applicant’s rights and there is substantial doubt as to whether the Applicant would have been discharged for his conduct given the current voluntary status of the vaccination.  As such, the elements of the above test are satisfied as both to characterization and narrative reason for separation.  The Board voted unanimously to change the discharge to Honorable/Secretarial Authority.  Relief granted.

The following if provided for the edification of the Applicant.  The NDRB has no authority to provided additional relief in this case.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 13 December 1999 until Present.

B.  In Appendix 12 of the Manual for Courts-Martial, confinement for a period of six months or more is authorized for a violation of the Uniform Code of Military Justice, Article 92, failure to obey order or regulation, 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 V, Para 503, Equity.