AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD

NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL)
i1	a1mr 11:

GRADE	AFSN/SSAN
	•] 11 11!•

TYPE GEN	X

PERSONAL  APPEARANCE	RECORD REVIEW

·	- .    · :  NAME OF COUNSEL AND OR ORGANIZATION YES	No
x

ADDRESS AND OR ORGANIZATION OF COUNSEL

MEMBER SITTING

'

·-------------------------------------
'
'

•
-------------------------------------

HON

GEN

UOTHC

OTHER

DENY
x x x x
x

ISSUES

A94.05 A94.41

INDEX NUMBER

A67.30

1	ORDER APPOINTING THE BOARD
2	APPLICATION  FOR REVIEW OF DISCHARGE

3	LETTER OF NOTIFICA TJON
4		BRIEF OF PERSONNEL FILE COUNSEL'S RELEASE TO THE BOARD
ADDmONAL EXHIBITS SUBMITTED AT TIME OF PERSONAL  APPEARANCE
TAPE RECORDING OF PERSONAL APPERANCE

HEARING DATE	CASE NUMBER

05 Feb l-004	FD-2003-00369

Case heard at Washington, D.C.

Advise applicant of the decision of the Board and the right to submit an application to the AFBCMR.

_ _ _ _ _ _ _ _ _ _ 4_..-.:-:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ .t.::")_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

'

TO:	FROM:
SAF/MRBR
550 C STREET WEST, SUITE 40 RANDOLPH AFB, TX 78150-4742

SECRETARY OF TIIE AIR FORCE PERSONNEL  COUNCIL AIR FORCE DISCHARGE REVIEW BOARD
1535 COMMAND DR, EE WING, 3RD FLOOR ANDREWS AFB, MD 20762-7002

AFHQ FORM 0-2077, JAN 00	(EF-V2)	Previous edition will be used

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE	CASE NUMBER

FD-2003-00369	

GENERAL:  The applicant appeals for upgrade of discharge to honorable.

The applicant appeared without counsel before the Discharge Review Board (DRB) at Washington, D.C. on February 5, 2004.

The attached brief contains available pertinent data on the applicant and the factors leading to the discharge.

FINDINGS: The Board finds that neither the evidence of record nor that provided by the applicant substantiates an inequity or impropriety that would justify  a change of discharge. The Board therefore denies the requested relief.

ISSUE: The applicant raised 2 issues based on equity. First, he asserted that there was a change in Air Force policy in relation to the Anthrax Vaccine Immunization Program (AVIP), evidenced by a memorandum from the Deputy Secretary of Defense, dated July 17, 2000, entitled Temporary Slowing and Future Resumption of Anthrax Vaccine Immunization Program. The applicant proposed t}Jat had this memorandum been issued earlier, he would not have been required to obtain the vaccine. He explained that he had concerns about the safety of the vaccine and that he realized that the order he was issued was a valid, legal order. The applicant conceded that there was no impropriety in the processing of his case, including with the order, the nonjudicial punishment, and the administrative discharge and subsequent resignation. Second, he raised the issue that a general discharge is inequitable in this case given his otherwise meritorious military service.

Evidence provided to the Board, including the sworn testimony of the applicant, established the following The applicant was given a written order to obtain the anthrax vaccine. He disobeyed that order and was subsequently punished under Article 15 of the UCMJ. The applicant acknowledged that the AVIP was being properly administered and that he was subject to the order to obtain the vaccine. The July 17, 2000 memorandum did not suspend the AVIP. Rather, it slowed down the pace of the AVIP due to a shortage of vaccme. No evidence was presented that the anthrax vaccine lost its FDA approval or was unsafe. The applicant conceded that between February and May 2000 he was afforded several opportunities to consult with physicians and medical specialists. These professionals explained the risks of the vaccine and opined that the benefits outweighed the risks. He also consulted with defense counsel. At the time the applicant violated the order to obtain the anthrax vaccine he was aware that another officer from Dover AFB who had previously refused to take the anthrax vaccine reeived nonjudicial punishment and a general discharge. The applicant fully expected to receive the same treatment. Knowing this, he proceeded to violate the order. Based on the foregoing, the Board found that there had not been a material change in policy and procedure subsequent to the applicant's discharge so as to cast substantial doubt that the applicant would have received the same discharge if relevant subsequent policies and procedures had been available to the applicant at the time of his discharge.

The applicant relied on his performance reports to support his assertion that the requested relief is warranted based on his service record. He testified that the only order he ever violated on active duty was the subject order to obtain the anthrax vaccine. His Air Force record contains 2 officer performance reports and one training report. These reports indicate that his service was excellent, consistent with his age, rank and level of responsibility. The Board found no exceptional circumstances evidenced in his military record to warrant the requested relief. The applicant willfully violated a lawful order of a superior commissioned officer, while knowing the probable consequences of his actions. They found the seriousness of the willful misconduct offset any positive aspects of the applicant's duty performance. The Board concluded the	

discharge was appropriate for the reasons that were the basis for this case.

The Board found no evidence of impropriety or inequity in this case on which to base an upgrade of discharge.

CONCLUSIONS: The Discharge Review Board concludes that the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority and that the applicant was provided full administrative due process.

In view of the foregoing findings the Board further concludes that there exists no legal or equitable basis for upgrade of discharge, thus the applicant's discharge should not be changed.

Attachment: Examiner's Brief