Author: CAP
Last saved by: Department of the Navy
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Docket No. ND01-00373

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

ex-CTI3, USN
Docket No. ND01-00373

Applicant’s Request

The application for discharge review, received 010205, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010615.  After a thorough review of the records, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Respectfully request review of my discharge because of recent adjustments to the anthrax vaccination policy, I feel my discharge should be changed to reflect the level of service I gave to my country.  Thank you.

2.  Please also consider my acceptance of a position to officer candidate school by the OCS Board, which was determined after my discharge.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		None
	Inactive: USNR (DEP)	960130 - 960324	COG

Period of Service Under Review:

Date of Enlistment:  960325		Date of Discharge:  991123

Length of Service (years, months, days):

	Active:    03  07  28
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 (14 months extension)

Education Level:  12			AFQT:  98

Highest Rate:  CTI3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (3)	Behavior:  3.25 (4)		OTA:  3.34

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, OSSR, AFEM, SSR, Expert Rifleman Medal, Expert Pistol Shot Medal

Days of Unauthorized Absence:  None 

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

GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

990723:	Memorandum for the record from CTRCS (AW/SS) P____ L. R____, N31C directing CT13 D___ T. D_____ to report to the Naval Station Rota Hospital, NLT 1600, on 990728 in order to begin the Anthrax Vaccination Immunization Program as part of your assignment to a Direct Support Operation billet.  Member refused to sign.

990924:	Retention Warning:  Advised of deficiency (On or about 1600, 990909 you have failed to report to the Naval Station, Rota Hospital to begin the required Anthrax Vaccination program as ordered by CTRCS P___ R____ in accordance with DOD and Navy policy.  This order is a requirement for all assigned personnel in a Direct Support Operation billet.  Your actions are in Violation of the Uniform Code of Military Justice, Article 92 (failure to obey order or regulation), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
991015:	Applicant notified of intended recommendation for discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense refusal to take Anthrax Vaccination..

991015:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

991015:	Commanding officer directed discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense refusal to take Anthrax. 

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 991123 general under honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

In response to the applicant’s issues, the Board found that the applicant had an excellent service record and noted the fact that the applicant was accepted to Officer Candidate School.  However, there has been no official change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant.  Until there is an official change to the current anthrax vaccination policy, the Board cannot grant the applicant relief concerning his issues.  If there is an official change to the anthrax vaccination policy, the applicant will be notified and his case will be re-opened and reviewed again.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 92, for failure to obey order or regulation, if adjudged at a Special or General Court Martial.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at "afls10.jag.af.mil".

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6730/A9321/A9217