Author: CAP
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Docket No. ND03-00212

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

 ex-AMHAN, USN
Docket No. ND03-00212

Applicant’s Request

The application for discharge review, received 20021121, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The Applicant requested a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031010.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

1.  “To Whom It May Concern:

     While proudly serving in the US Navy, I received an order to receive the anthrax vaccine.  Based upon my extensive research, and most importantly my holistic creed, I declined the vaccine.  After declining the vaccine, I was interrogated, threatened, harassed, discriminated against and received both direct and indirect threats.  I find the actions to be unacceptable at any level.  I filed a complaint of wrongs under Article 138 and 1150.  They have been forwarded to the Secretary of the navy for review.  I am requesting an upgrade in discharge to General Under Honorable Conditions.  I would like to conclude this letter in a quote in which I firmly believe in from one of our great leaders, General H. N_ S_, “Honor is fundamentally a code of conscience; any institution that wants to foster it should not use a persons sense of honor against him.

Thank you for your time and consideration.”  (Signed by the Applicant)

Documentation

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

Copy of DD Form 214
Letter of Employment, American Eurocopter Corp., dtd  Nov 7, 2001
Eagle Scout Certificate dtd Nov 24, 1992
Associate in Applied Science Degree Certificate from Carrant County Junior College dtd Dec 18, 1998
Applicant’s Résumé
Applicant’s Employee Performance Eval 2002
Newspaper Article concerning Applicant
Copy of Driver License Identification card
Police check/driving record dtd May 5, 2003

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	19981019 – 19990125	COG

Period of Service Under Review:

Date of Enlistment:  19990126		Date of Discharge:  20010410

Length of Service (years, months, days):

	Active:    02  02  15
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 (12 months extension)

Education Level:  14			AFQT:  43

Highest Rate:  AMHAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.5 (2)	Behavior:  1.0 (2)	OTA:  1.92 (5. 0 evals)

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None 

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events:

991123:	Naval Branch Medical Clinic, Jacksonville, FL:  Pt reports feeling stressed.  Started 3 wks ago with flu vaccine, was told he must take it despite not wanting to.  Told he would be discharge.  Then told ab out Anthrax, talked to legal, asked attorney in town.  Does not want to take anthrax, very stressed about it.  Having issues with leadership and people not having any leadership qualities – told to do things he shouldn’t have to do.  
	Also fiancée, getting married in February, told she may not be able to join him in Sigonella.  Not performing well in class secondary to these issues.  Unable to sleep well.  Difficult to concentrate.  Feels like he’s spinning his wheels.  Enjoys flying and desires to be aircrew.  10 pounds weight gain.
	Feels like he’s “being treated like a kid.”  If he uses the chain of command he feels he’ll be labeled – biggest issue however is the anthrax shot.  Does not feel he will take it and actually have desire to leave the military then succumb to these immunizations.  
	Assessment/Plan:  
AXIS I:  None
AXIS II:  Possible Borderline Personality traits
AXIS III:  None
Will continue down status, follow up to discuss further.  Will speak with legal in meantime.

991207:	Naval Hospital, Camp Lejeune, NC (Mental Health):  Pt was referred for mild depressive symptoms by the primary care clinic at New River.  Pt’s chief complaint consists of “I’m unable to concentrate, I’m experiencing decreased sleep, I have headaches and stomach pains.”  
	Past Psychiatric History:  Pt reported that around the age of 15, he felt very stressed and saw a doctor that was not a psychologist in order to get help with his stress.
	Mental Status Examination:  Pt was well groomed and dressed in dungarees.  He was fully oriented.  He maintained good eye contact throughout the interview.  His speech was fast, but otherwise unremarkable.  He reported his mood as going up and down slightly; however, he did not feel depressed.  His affect was full ranging and seemed congruent with his mood report and he appeared somewhat anxious.  Pt reported that he has some mild trouble sleeping where he tosses and turns before he is able to fall asleep.  He has a slight problem with early morning awakening.  His appetite is slightly depressed at this point and he is having minor problems with concentration.  He still is able to enjoy pleasurable activities.  There is no evidence of a thought disorder or mania.  His insight and judgment appeared within normal limits and he denied any suicidal or homicidal ideations.
	Impression:  Pt is a 25 year old active duty single sailor with ten months of active duty service.  He is currently experiencing mild depressive and anxiety symptoms which seem to be related to the conflict he experiences between adjusting to military rules and regulations and his own set of rules and beliefs.  At this point, his symptoms are below the diagnostic level.  It is likely that if he encounters additional situations in the military that are in conflict with his beliefs his symptoms my be exacerbated significantly.  Further, he appears to have narcissistic traits that are at the root of his conflicts.
	Diagnoses:
	AXIS I:   No Diagnosis
	AXIS II:  Narcissistic Traits
	AXIS III: History of Stomach problems
	AXIS IV: No Diagnosis
	AXIS V:  Current GAF 70, Best estimated GAF over the past year 75.
	Recommendation:  1.  Pt is fit for full duty and flight status.  No evidence of suicidal or homicidal ideations.  2.  No follow up required at this time.  3.  Pt understood and agreed to above evaluation.

991220:	Naval Branch Medical Clinic, Jacksonville, FL:  25 year old male follow-up on down chit regarding psychiatric reasons.  Pt has been evaluated by MHU, NH, Camp Lejeune.  Short admin note in chart but no thorough write-up in record.  Pt was feeling stressed about anthrax/shots in Nov.  Also stressed about marriage plans.  This lead to down chit and eval.  Now not planning to get married, feels decreased stress.  
	Assessment/Plan:  Follow-up on Down Chit.  Unable to issue Up Chit without formal, complete write-up of MHU evaluation.  Pt contacted squadron corpsman & MHU to obtain.  As soon as obtained, Pt should return for possible Up Chit.

000104:	Naval Branch Medical Clinic, Jacksonville, FL:  Pt here for up chit.  Pt was experiencing stress related feelings during crew-chief training in late Nov/early Dec.  Seen by Mental health and given no diagnosis.  I concur with diagnosis.  Flight Phase beginning in 2-3 weeks.  Pt feels 100%.  Came off leave with new outlook.  
	Assessment/Plan:  Stress resolved. Up Chit, Follow-up as necessary.

000411:	Reported HC-4, Sigonella, for duty.

000525:	Evaluation Report & Counseling Record (From:  99APR08 To:  00MAY25) states Applicant was found guilty of UCMJ Article 90, willfully disobeying a Superior Commissioned Officer on 26 May 2000.  Appeal proceedings were concluded 00JUN29 resulting in denial.

000518:	Pt reported to Flight Line Clinic after receiving a direct order to get the Anthrax Immunization.  Pt refused immunization.  Pt was carrying a handwritten order from the Commanding Officer, of HC-4 to get the Anthrax immunization.  Pt is deployable and has not received any Anthrax immunization.

000815	Naval Hospital Sigonella, Italy:  Pt requesting COMRATS secondary to wanting to eat in a more healthy way.”  Pt believes in moderation and actively seeks further information on healthy lifestyles.  Diet history demonstrates healthful eating strategies.  Healthy Pt with no medical reasons to alter diet.  Pt has holistic beliefs with eating that should not be discouraged.  This style of eating is difficult secondary to overseas location and limited resources.  Educated Pt on available resources and how to meet his nutrition goals as much as possible.  Pt is at no nutrition risk if holistic goals are not met.  Would Recommend COMRATS, however, it is not medically indicated.  Pt recommended to follow-up as necessary.

010403:	Evaluation Report & Counseling Record (From:  99JUL16 To:  01APR03) states: “This evaluation is submitted on the occasion of AMAA D_ (Applicant)’s Administrative Separation.”  Applicant given adverse marks with the following comment:  “Consistently demonstrated total disregard for regulations by his refusal to conform to military standards and uniform regulations, and repeatedly displayed an insubordinate attitude towards senior enlisted as well as commissioned officers.  Constant negative impact on NASSIG as well as this squadrons Good Order and Discipline.  Refused to obtain qualifications of Plane Captain that was required of him to perform his duties.  Administrative burden on the U.S. Navy.” 

[APPLICANT’S DISCHARGE PACKAGE IS MISSING.  SERVICE RECORD DOES NOT CONTAIN APPLICANT’S REQUEST FOR DISCHARGE IN LIEU OF COURT MARTIAL.]

010410:	DD Form 214.  Applicant discharged with an “Under Other Than Honorable Conditions” by reason of separation in lieu of Trial by Court Martial, authority MILPERSMAN 3630650.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010410 under other than honorable conditions in lieu of a trial by court-martial (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).

Issue 1.  The Applicant states that he declined the anthrax vaccine.  He filed an Article 138 and 1150 that have been forwarded to the Secretary of the Navy.

The Applicant’s discharge package was not available for the Board to review, therefore, the Board assumes regularity in the conduct of governmental affairs.  However, willfully disobeying a lawful order is a serious offense punishable by court martial.  The Applicant had a written order from his commanding officer to take the anthrax shot and the Applicant refused.  The Applicant accepted separation with an Other Than Honorable discharge in lieu of court martial.  The discharge was proper and equitable.  Relief denied.

The following is provided for the benefit of the Applicant.  Normally, to permit relief, an error or inequity must have occurred during the execution of the discharge for the period of enlistment in question.  No errors or inequities were discovered during the execution of this discharge.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides that an unfavorable discharge may be upgraded, based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review can be considered.  Examples of documentation to forward to the Board include proof of educational pursuits, verifiable employment record(s), documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle (if appropriate).  At this time, the applicant has not provided sufficient documentation for the Board to consider.  Therefore, relief will not be granted.

The applicant is reminded that he is eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at personal appearance hearing is recommended but not required.
 
Pertinent Regulation/Law (at time of discharge) 
A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 
11 Jul 2000 until 21 Aug 2002, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 90 (willfully disobeying a lawful order) upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-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 “afls14.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: