BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150013803 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ __x______ ___x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150013803 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________x______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150013803 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his general discharge to an honorable discharge. 2. The applicant states he was told 1 year after his discharge that the order that he disobeyed was unlawful. He was told the anthrax vaccination was made voluntary. 3. He also states he received a letter from the Department of Veterans Affairs (VA) on 23 March 2015 stating his service was considered honorable. 4. The applicant provides copies of a VA Letter dated 23 March 2015 and his DD Form 214 (Certificate of Release or Discharge from Active Duty). CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army for 4 years on 28 October 1997. He completed training as a metal worker. 3. On 23 and 24 November 1998, the applicant was counseled for refusing to take the anthrax immunization in accordance with the Department of the Army (DA) Directive, company and battalion commander's lawful order, and the lawful order of a noncommissioned officer (NCO). He was told he had willfully disobeyed orders by the officers and NCOs appointed over him and that having been briefed and given the opportunity to ask questions about the anthrax immunization, and knowing it to be his duty to receive the anthrax immunization, he had willfully chosen to disobey orders. He was told that his actions were punishable under the Uniform Code of Military Justice and he was informed of the consequences of a less than fully honorable discharge. The applicant acknowledged receipt of the DA Form 4856 (General Counseling Form) by non-concurring with the counseling, stating he believed it was against his religious rights. He requested to speak with a Judge Advocate General's Corps officer. 4. On 11 March 1999, the applicant accepted nonjudicial punishment (NJP) for two specifications of willfully disobeying a lawful order given by commissioned officers to take the anthrax shot. 5. On 25 June 1999, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14-12c, for misconduct – commission of a serious offense. His commander cited his failure to obey a commissioned officer on two occasions. He acknowledged receipt of the notification. After consulting with counsel, he elected to submit a statement in his own behalf. 6. In a memorandum, dated 6 July 1999, the applicant's counsel requested a religious waiver or, in the alternative, reassignment or separation under the provisions of Army Regulation 635-200, paragraph 5-3 (Secretarial Authority). His request was denied on 8 July 1999. 7. The applicant's official record contains an undated letter from his pastor. The pastor stated his letter was being written in support of the applicant's refusal to submit to inoculation with the anthrax vaccine. The general conference of the United Methodist Church had taken no position on the anthrax vaccine inoculation. However, there was a position regarding medical experimentation and the pastor quoted parts of the church's position on that issue. 8. On 8 July 1999, the appropriate authority approved the recommendation for discharge and directed the issuance of a general discharge. On 22 July 1999, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct – commission of a serious offense. He completed 1 year, 8 months, and 25 days of net active service this period. He received a general discharge. 9. A review of the applicant's records fails to show he ever applied to the Army Discharge Review Board for an upgrade of his discharge. 10. The applicant provides a copy of a VA letter dated 23 March 2015, summarizing the benefits he currently receives from the VA. This letter lists the character of his service from 28 October 1997 to 22 July 1999 as honorable. REFERENCES: 1. Army Regulation 600-20 (Army Command Policy), in effect at the time, stated that a Soldier on active duty or active duty for training would usually be required to submit to medical care considered necessary to preserve his or her life, alleviate undue suffering, or protect or maintain the health of others. Commanders may order the examination of any Soldiers in their command when warranted. Paragraph 5-4b(2)a stated the policy authorizing forcible immunization was intended to protect the health and overall effectiveness of the command as well as the health of the Soldier. Soldiers did not have an option as to whether they would be immunized except as prescribed in Army Regulation 40-562 (Immunizations and Chemoprophylaxis), paragraph 9, and Army Regulation 600-20, paragraph 5-6. In performing this duty, medical personnel were expected to use only the amount of force needed to give the immunization. Any force necessary to overcome a Soldier's reluctance to immunization would normally be provided by personnel acting under orders from the Soldier's unit commander. Every reasonable effort should have been made to avoid the need for disciplinary action. However, Soldiers were advised that they might subject themselves to disciplinary action by resisting. They would have also been informed that they would be inoculated with or without their consent. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. DISCUSSION: 1. The applicant's contentions have been noted. There is no evidence in the available record that shows that 1 year after his discharge the anthrax vaccination became voluntary for U.S. Army Soldiers. 2. According to the regulation in effect at the time of the applicant's discharge, the policy authorizing forcible immunization was intended to protect the health and overall effectiveness of the command as well as the health of the Soldier. Soldiers did not have an option as to whether they would accept immunization as prescribed in Army Regulation 40-562, paragraph 9 and paragraph 5-6 of Army Regulation 600-20. 3. The available records show the applicant requested a religious waiver, reassignment, or separation under the provisions of Army Regulation 635-200, paragraph 5-3, and his request was denied. 4. The applicant was discharged for misconduct after disobeying lawful orders. Prior to his discharge, he was counseled and informed of the effects of a less than fully honorable discharge. He elected not to follow orders given by his commanding officers. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under chapter 14. However, the separation authority directed the issuance of a general discharge. 5. A VA determination of "honorable" is neither a comment on nor a criticism of the Army's characterization of a Soldier's service. Generally, in order to receive VA benefits and services, the veteran’s character of discharge or service must be "under other than dishonorable conditions" (e.g., honorable or general, under honorable conditions). //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013803 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013803 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2