RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-03587 INDEX CODE: 110.02 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ _ APPLICANT REQUESTS THAT: His general (under honorable conditions) discharge be upgraded to honorable; his reenlistment eligibility (RE) code of 2B (separated with a general or under other than honorable conditions) be changed; and his narrative reason for discharge changed. ________________________________________________________________ _ APPLICANT CONTENDS THAT: Changes in regulation regarding the Anthrax vaccine and the fact that he got ill after receiving the vaccine should justify the change. In support of his request, applicant provided copies of his DD Form 214, Certificate of Release or Discharge from Active Duty, Congressional responses, transcripts, certificates, medical documents, and newspaper articles. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: On 2 Jul 03, the applicant’s commander ordered the applicant to report to the Immunization Clinic and receive an Anthrax vaccination on that day. The applicant refused. On 15 Jul 03, the applicant received an Article 15, Record of Non-judicial Punishment, for willfully disobeying a lawful command. On 19 Aug 03, the applicant’s commander ordered the applicant to report to the Immunization Clinic and receive his fourth Anthrax vaccination within one hour. The applicant refused. The applicant received an additional Article 15 on 28 Aug 03. On 11 Sep 03, the applicant was notified that his commander was recommending him for involuntary discharge for commission of a serious offense, with a general (under honorable conditions) discharge. The wing commander subsequently withdrew the action and reinitiated the discharge action, with an under other than honorable conditions (UOTHC) discharge. On 13 Nov 03, an administrative discharge board convened and recommended discharge with a UOTHC and did not offer probation and rehabilitation. The staff judge advocate found the case legally sufficient, and on 8 Dec 03, the separation authority approved the discharge. The applicant was discharged on 11 Dec 03. On 13 Jan 04, the applicant submitted an application to the Air Force Discharge Review Board (AFDRB). The AFDRB concluded that the overall quality of the applicant’s service was more accurately described as general (under honorable conditions). The applicant’s characterization of discharge was changed to general (under honorable conditions). ________________________________________________________________ _ AIR FORCE EVALUATION: AFPC/DPSOS recommends denial. Based on the documentation on file in the master personnel records, the discharge was consistent with the procedural and substantive requirements of the discharge regulation. The discharge was within the discretion of the discharge authority. The applicant did not submit any evidence or identify any errors or injustices that occurred in the discharge processing. He provided no facts warranting a change to his character of service or RE code. The complete AFPC/DPSOS evaluation is at Exhibit C. AFPC/DPSOA recommends denial. DPSOA states they found no evidence of error or injustice; nor did the applicant submit evidence of any. The applicant voluntarily failed to obey a lawful order and take the fourth shot in the Anthrax vaccination series. The complete AFPC/DPSOA evaluation is at Exhibit D. AFPC/JA recommends denial. JA states that because Anthrax Vaccination Program vaccination orders were inferred to be lawful at the time the applicant disobeyed his order, they opine that relief is not warranted. The complete AFPC/JA evaluation is at Exhibit E. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: The applicant states that only upon getting very sick after he received his second and third vaccination did he start to refuse further vaccinations. He only took the third vaccination because he felt pressure to do so, even though he had already lost a significant amount of weight and was having severe side effects. His side effects included diarrhea so severe he was passing mucus through his bowels, joint pain, weight loss, and a new sensitivity to certain foods. He states that as with any vaccine there is a potential to have mild to severe side effects; however, in his case, they were very severe and he could not in good conscience continue to take a vaccine that was making him so ill. He states he was never told that possible side effects could result in a one to two percent death rate as stated by the FDA; therefore, he could not give an informed consent. Since his discharge, he has followed information about the Anthrax vaccine and the case Doe vs. Rumsfeld applies to him because he was made to take an experimental drug that had substantial side effects and was not able to give informed consent. The applicant's complete response is at Exhibit G. ________________________________________________________________ _ BCMR MEDICAL CONSULTANT’S EVALUATION: The BCMR Medical Consultant recommends granting partial relief by changing the applicant’s DD Form 214 to reflect the narrative reason for separation as Secretarial Authority and the service characterization as honorable. The BCMR Medical Consultant fully acknowledges the importance of maintaining good order and discipline in order to maintain the nation’s mission and that failure to follow a lawful order is unacceptable. However, based collectively upon a number of unique factors in the applicant’s case, to include his willingness to voluntarily deploy on short notice, his initial acceptance and compliance (three times) with the Anthrax vaccine program, and his refusal to comply only at the development of clinical symptoms which were concerning enough that it impacted his judgment as to whether to comply at the risk of unknown peril, the Board may consider granting the applicant relief in the interest of fairness and justice. Changing the applicant’s RE code, however, is not advised, based upon the vulnerability of again requiring the Anthrax vaccine and the unknown risk for a recurrence of adverse clinical symptoms that may preclude military service; whether attributed to the Anthrax vaccine or other causes. The complete BCMR Medical Consultant’s opinion is at Exhibit H. ________________________________________________________________ _ APPLICANT'S REVIEW OF BCMR MEDICAL CONSULTANT’S EVALUATION: A copy of the BCMR Medical Consultant’s evaluation was sent to the applicant on 15 May 08 for review and response (Exhibit I). As of this date, this office has not received a response. ________________________________________________________________ _ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After reviewing the applicant’s submission and the evidence of record, we are persuaded that some relief is warranted. Consideration of this Board is not limited to the events which precipitated the discharge and we may base our decision on matters of equity and clemency rather than simply on whether rules and regulations which existed at the time were followed. We note that the discharge action taken against the applicant was in accordance with the applicable instruction. However, noting the AFDRB’s upgrade of his discharge to general (under honorable conditions) and taking into consideration our broader mandate to provide relief based on matters of equity and clemency, we are not persuaded that another upgrade of his discharge is warranted, but we are persuaded that his narrative reason for discharge is more accurately reflected as Secretarial Authority. We note his contention that he meets the criteria as set forth in Doe vs. Rumsfeld; however, we agree with the opinion and recommendation of HQ AFPC/JA in that the anthrax vaccination orders were inferred to be lawful at the time the applicant disobeyed two orders to take the shots. In regard to the applicant’s request concerning a change to his reenlistment code, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and the BCMR Medical Consultant and adopt their rationale as the basis for our conclusion that the applicant’s RE code remain unchanged. Therefore, we recommend his records be corrected only to the extent indicated below. ________________________________________________________________ _ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 11 December 2003, he was discharged under the provisions of AFI 36- 3208, paragraph 2.17.3, with a narrative reason for separation of Secretarial Authority. ________________________________________________________________ _ The following members of the Board considered Docket Number BC- 2007-03587 in Executive Session on 9 September 2008, under the provisions of AFI 36-2603: Mr. XXXXXXXXXX, Panel Chair Ms. XXXXXXXXXX, Member Ms. XXXXXXXXXX, Member All members voted to correct the records, as recommended. The following documentary evidence was considered for Docket Number BC-2007-03587: Exhibit A. DD Form 149, w/atchs, dated 22 Oct 07. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFPC/DPSOS, dated 29 Nov 07. Exhibit D. Memorandum, AFPC/DPSOA, dated 3 Dec 07. Exhibit E. Memorandum, AFPC/JA, dated 27 Feb 08. Exhibit F. Letter, SAF/MRBR, dated 7 Mar 08. Exhibit G. Applicant’s Rebuttal, dated 3 Mar 08. Exhibit H. Memorandum, BCMR Medical Consultant, dated 14 May 08. Exhibit I. Letter, SAF/MRBR, dated 15 May 08. XXXXXXXXXXXXX Panel Chair