RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04938

XXXXXXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.	Upgrade his Character of Service from Under Honorable Conditions (General) to Honorable. 

2.	Change his Reentry (RE) code of 2B, to an RE code of 1J, 3B, or any other RE code that would allow him to join the Air National Guard.  

3.	Change his grade of airman first class (E-3), back to senior airman (E-4), as it was before his refusal to take the Anthrax vaccine.  

APPLICANT’S CONTENTIONS

Receiving an Under Other Than Honorable Conditions (UOTHC) discharge was unfair and inequitable based on other Anthrax Vaccine refusal cases, which other service members either have received honorable discharges, or have had their discharges upgraded to honorable.  He served honorably with no disciplinary actions with the exception of his refusal to take the Anthrax vaccine.  He wants the opportunity to serve his state by joining the Air National Guard.  

In support of his application, the applicant provides a copy of the 25 Jul 18 Under Secretary of Defense guidance to Military Discharge Review Boards regarding equity, injustice, or clemency determinations, copies of two Navy Discharge Review Board rulings upgrading discharge characterizations to honorable for service members discharged for refusing the Anthrax Vaccine, and an endorsement letter from a retired Air Force colonel.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an Under Honorable Conditions (General) discharged Air Force airman first class (E-3).  

On 1 Dec 98, the applicant was issued a written order by his squadron commander to take the Anthrax vaccine.  He refused the vaccine, questioning in writing, the lawfulness of the order.  

On 11 Dec 98, the applicant was offered an Article 15 for his failure to submit to the Anthrax vaccine.  Specifically, the Article 15 alleged he willfully disobeyed an order from a superior commissioned officer, in violation of Uniform Code of Military Justice (UCMJ), Article 90.  

On 29 Dec 98, the Article 15 became final.  On the same day, the applicant was again issued a written order to submit to the Anthrax vaccine, and he responded by indicating he was not willing to comply with that order.  

On 19 Jan 99, the applicant was charged for willfully disobeying a lawful command to submit to an Anthrax immunization, in violation of Uniform Code of Military Justice (UCMJ), Article 90.  

On 1 Feb 99, the applicant’s commander recommended the 19 Jan 99 charge of the applicant’s unwillingness to comply with a prior order, be referred to trial by a summary court-martial.  

On 8 Feb 99, the applicant in a memorandum to base leadership requested he be discharged according to AFI 36-3208, Administrative Separation of Airmen, Chapter 4, in lieu of trial by court martial.  

On 11 Feb 99, the Judge Advocate (JA) reviewed the applicant’s request for discharge in lieu of trial by special court-martial pursuant to AFI 36-3208, Chapter 4, and recommended the wing commander approve the Chapter 4 request, with a UOTHC characterization.  

On 16 Feb 99, the wing commander recommended the applicant be discharged in lieu of trial by special court-martial pursuant to AFI 36-3208, Chapter 4.  

On 28 Feb 99, the discharge authority approved the request for discharge in lieu of trial by court-martial.  

On 9 Mar 99, the applicant received an UOTHC discharge, Separation code of KFS (Good of the Service, in lieu of court martial), RE code 2B (Separated with other than an honorable discharge), having served 6 years, 10 months, and 23 days of active service. 

On 2 Oct 02, the Discharge Review Board (DRB) denied the applicant’s request to upgrade his discharge to honorable, finding that neither evidence or record nor that provided by the applicant substantiated an inequity or impropriety, justifying the requested change to his discharge.  However, the DRB also concluded the overall quality of the applicant’s service is more accurately reflected by a General discharge, therefore, directing his characterization for discharge be changed to General.  

On 20 Aug 10, according to documentation submitted by the applicant, the DRB denied his request to upgrade his under honorable conditions (General) discharge to honorable.   

The Board has ruled against at least two cases with similar circumstances.  In these cases (BC-2008-04173, BC-2008-04174), applicants requested their discharges be upgraded to Honorable, RE and SPD codes changed allowing return to military service, restoration of their rank/grade obtained previous to their punishments for refusing to submit to the Anthrax Vaccination Immunization Program (AVIP).  The applicants contended they were unjustly punished for disobeying an illegal order to take the Anthrax Vaccine.  The Board determined the nonjudicial punishment imposed was consistent with the procedural and substantive requirements of the governing instruction, was not unduly harsh, was within the commander’s discretionary authority, and formed a sound basis for the subsequent recommendation for the applicants’ administrative discharges.  (Exhibits F and G).  

On 8 Oct 20, the Clemency Bulletin w/attachments was emailed to the applicant requesting an FBI report and post-service information.  The applicant replied via a phone call to the analyst, advising that he would not be submitting an FBI report or post-service information for this case. (Exhibit J)  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C, D, and E.

APPLICABLE AUTHORITY

According to AFI 36-3208, Administrative Separation of Airmen, incorporating changes through 8 Jun 17, paragraph 1.18, the types of service characterization are as follows: 

Honorable.  The quality of the airman’s service generally has met Air Force standards of acceptable conduct and performance of duty or when a member's service is otherwise so meritorious that any other characterization would be inappropriate. 

Under Honorable Conditions (General).  If an airman’s service has been honest and faithful, this characterization is warranted when significant negative aspects of the airman's conduct or performance of duty outweigh positive aspects of the airman's military record.

Under Other than Honorable Conditions.  When basing the reason for separation on a pattern of behavior or one or more acts or omissions that constitute a significant departure from the conduct expected of airmen.  The member must have an opportunity for a hearing by an administrative discharge board or request discharge in lieu of trail by court-martial.  Examples of such behavior, acts, or omissions include, but are not limited to:

•	The use of force or violence to produce serious bodily injury or death.

•	Abuse of a special position of trust.

•	Disregard by a superior of customary superior - subordinate relationships.

•	Acts or omissions that endanger the security of the United States. 

•	Acts or omissions that endanger the health and welfare of other members of the Air Force.

•	Deliberate acts or omissions that seriously endanger the health and safety of other persons.

•	Rape, sexual assault, aggravated sexual contact, abusive sexual contact, rape of a child, sexual assault of a child, sexual abuse of a child, forcible sodomy and attempts to commit these offenses.  (Exhibit B)

AFM 36-2032, Military Recruiting and Accessions, dated 27 Sep 19, para 3.6.6.2, Prior service applicants are not eligible if: Para 3.6.6.2.1—They are former members of the United States Armed Forces who received any discharge other than an honorable or uncharacterized discharge or were separated for cause for the last period of service; or whose discharge was due to inaptitude, fraud, misconduct, or unsuitability. (Exhibit B)  

AFI 36-2606, Reenlistment and Extension of Enlistment in the United States Air Force, dated 20 Sep 19: Reenlistment Eligibility (RE) Status Code—Codes used to categorize individuals for enlistment or reenlistment in the Armed Forces. - Code 2 in first position means ineligible for immediate reenlistment and prior service enlistment.  (Exhibit B)  

AIR FORCE EVALUATION

AFPC/DP2SSR, recommends partially granting the application by issuing a new DD Form 214, Certificate of Release or Discharge from Active Duty, reflecting an Under Honorable Conditions (General) service characterization.  On 2 Oct 02, the DRB reviewed the applicant’s case and determined that the discharge was equitable however; the overall quality of the applicant’s service was more accurately reflected by a general service characterization.  There is no record of a new DD Form 214 in the applicant’s record reflecting the upgraded character of service.  Since it appears that the applicant did not receive a new DD Form 214, our office can prepare a new document once the Board has reviewed to determine whether or not his request to be upgraded to honorable service characterization is warranted, along with any possible change to his Reenlistment Eligibility (RE) code, Separation Program Designator (SPD) code and corresponding narrative reason for separation, as necessary.

The complete advisory opinion is at Exhibit C.

AFPC/DP2SSM, recommends denying the applicant’s request to change his RE code.  There is no evidence of an error or injustice in reference to the applicant’s RE code based on the documentation provided by the applicant and analysis of the facts.  The applicant was discharged on 9 Mar 99 with a narrative reason for separation of Triable by Court-Martial with an under other than honorable conditions character of service after serving 6 years, 10 months, and 23 days of service. On 2 Oct 02, the AF Discharge Review Board (DRB) determined that the discharge was equitable; however, the overall quality of the applicant’s service was more accurately reflected by a General service characterization.  Although the DRB upgraded applicant’s character of service to General, his correct RE code is still 2B, but is now based on his general character of service.   

The complete advisory opinion is at Exhibit D.

AFPC/DP2SPP, recommends denying the applicant’s request for his grade to be changed back to senior airman (E-4), as it was before his refusal to take the Anthrax Vaccine.  The applicant was demoted to the grade of Airman Frist Class effective 22 Dec 98, resulting from an Article 15, dated 22 Dec 98, for failing to obey lawful command from his squadron commander on or about 11 Dec 98, to submit to Anthrax immunization, in violation of or Article 90, UCMJ.  He received an UOTHC discharge 3 Sep 99, under the provisions of AFI 36-3208, para 4.3 (Discharge in Lieu of Trial by Court Marshal).  
The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 27 Aug 20 for comment (Exhibit H), and the applicant replied on 11 Sep 20.  In his response, the applicant refutes the recommendations in the advisory opinions contending if the events leading up to his discharge would have happened just a few years later, there would not have been an issue with not taking the vaccine, as it was deemed by the Supreme Court to be illegal absent informed consent, thus making it voluntary.  The advisory recommendations go against the precedent set upgrading the anthrax refusal cases to honorable discharges.  In addition, he contends had the DRB updated his record in 2002 when they granted an upgrade of his discharge to under honorable conditions (General), he would have been able to reenter the Air Force.  He requests the numbered items of his DD Form 214, Certificate of Release or Discharge from Active Duty, be changed to reflect: 

	4.a. GRADE, RATE OR RANK_SRA
	4.b. PAY GRADE_E4
	6. RESERVE OBLIG. TERM DATE_2002 APR 16
	12.h. EFFECTIVE DATE OF PAY GRADE_1995 APR 17
	24. CHARACTER OF SERVICE_HONORABLE
	26. SEPARATION CODE_LBK
	27. REENTRY CODE_1J
	28. NARRATIVE REASON FOR SEPARATION_ COMPLETION OF REQUIRED
	      ACTIVE SERVICE

The applicant’s complete response is at Exhibit I.

FINDINGS AND CONCLUSION

1.  The application was not timely filed, but it is in the interest of justice to excuse the delay.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2SSR, AFPC/DP2SSM, and AFPC/DP2SPP and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Additionally, since the Board determined that an upgrade from General to Honorable is not warranted, the Board concurs with AFPC/DP2SSR to prepare a new DD Form 214 reflecting a General service characterization discharge.  Therefore, other than the administrative correction, the Board recommends against correcting the applicant’s records.  

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2019-04938 in Executive Session on 18 Nov 20:

, Panel Chair 
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 15 Nov 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SSR, dated 14 May 20.
Exhibit D:	Advisory opinion, AFPC/DP2SSM, dated 15 May 20.
Exhibit E:	Advisory opinion, AFPC/DP2SPP, dated 15 May 20.
Exhibit F:	ROP BC-2008-04173_dated 18 May 10
Exhibit G:	ROP BC-2008-04174_dated 13 May 10.
Exhibit H:	Notification of advisory, SAF/MRBC to applicant, dated 27 Aug 20.
Exhibit I:	Applicant’s response, dated 11 Sep 20.
Exhibit J:	SAF/MRBC Clemency Bulletin, w/atchs_8 Oct 20.  

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.