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Docket No. MD05-00632

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

FOR OFFICIAL USE ONLY

 ex-LCpl, USMCR
Docket No. MD05-00632

Applicant’s Request

The application for discharge review was received on 20050301.  The Applicant requested that his characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant did not designate a representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20060306.  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, an impropriety in the Applicant’s discharge was discovered by the NDRB.  The Board’s vote was 3 to 2 that the discharge and the reason for discharge shall change to:  HONORABLE/SECRETARIAL AUTHORITY, authority: MARCORSEPMAN Par. 6214, Separation Code “JFF1”.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I refused to take the anthrax vaccination shots on a medical and Moral grounds, because I have never used hard drugs in my life.  My SRB is clean and I always perform my duty to the best of my ability.  The anthrax Shots are a gross injustice to my Constitutional Rights as an American citizen.”

Documentation

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

Anthrax Vaccine Immunization Program from Anthrax.mil, 2 pages dated February 03, 2005 
Anthrax Shots for Troops May Resume from LATimes.com, 2 pages dated February 03, 2005 
Message 282151Z Oct 04 from QUAD Service MMQC Ft Detrick, MD (1 of 3 pages)
Judge: U. S. Can’t Force Vaccines from CBSNews.com, 2 pages dated February 03, 2005 

PART II - SUMMARY OF SERVICE

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

	Inactive: 	None
	Active:		
		
Period of Service Under Review:

Date of Enlistment:  19950128		Date of Discharge:  20030916

Length of Service (years, months, days):

Active:    00 04 26
	Inactive:  07 09 21

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  26

Years Contracted:  8 (6 SMCR + 2 IRR)

Education Level:  14				AFQT:  50

Highest Rank:  Cpl				MOS:  1391

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  NA*				Conduct:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Marksmanship Badge, National Defense Service Medal

*Not Available

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority:  MARCORSEPMAN Par. 6419

Chronological Listing of Significant Service Events:

950128:	Enlistment contract into the USMCR documents acknowledgement of the requirement to participate in 48 scheduled drills and not less than 14 days of annual training per year for 6 years upon completion of initial active duty training.

01XXXX:	Acknowledged understanding of eligibility but not recommended for promotion to Sgt for the month of Apr 01 because of non-completed MCI.  

010606:	Applicant transferred to Individual Ready Reserve.

011107:	Authorization to reaffiliate as a Selected Marine Corps Reservist.

030222:	Advised of deficiencies in performance and conduct; a violation of UCMJ Article 92 (willful disobedience of an order from a superior commissioned officer) by refusing to follow a written order issued by the commanding officer to receive the anthrax vaccine.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030222:	Advised of deficiencies in performance and conduct; a violation of UCMJ Article 86 (unauthorized absence) by failing to report to appointed place of duty on 030222 from 0700 to 1430.  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

030223:	Applicant acknowledged receipt of a written order to take the first of six anthrax immunizations.  This order also advised the Applicant that failure to obey may result in adverse administrative or disciplinary action.

03XXXX:	Acknowledged understanding of eligibility not recommended for promotion to Sgt for the month of Mar03 because of unauthorized absence.

030409:	Charges preferred for a violation of the Uniform Code of Military Justice (UCMJ) Article 92 (failure to obey and order) i.e. refusing to allow himself to be inoculated with the first of six Anthrax immunizations.

030517:	Advised of deficiencies in performance and conduct (PFT failure).  Directed to get within physical fitness standards by following a regular physical fitness routine.  Necessary corrective actions explained, sources of assistance provided, and advised failure to comply my result in administrative discharge action.

030522:	The Applicant requested from Commanding General, 4^th Marine Aircraft Wing, via Commanding Officer, Marine Wing Support Squadron 472 to be administratively separated in lieu of trial by court-martial.  In the request the Applicant admitted guilt to the charged violation of the UCMJ, Article 92 (willfully disobeying a lawful order) and acknowledged that his service may by characterized as under other than honorable conditions.  

030608:	Commanding Officer, forwarded to Commanding General, 4^th Marine Aircraft Wing the Applicant’s request for separation in lieu of trial by court-martial.  “Strongly recommending approval, with a characterization of service as other than honorable.”

030701:	Commanding Officer, Marine Wing Support Group 47 forwarded the Applicant’s request for separation in lieu of trial by court-martial to Commanding General, 4^th Marine Aircraft Wing, recommending approval.

03XXXX:	Acknowledged understanding of eligibility not recommended for promotion to Sgt for the month of July 03 because of PFT.  Unsigned.

030801:	Staff Judge Advocate, Marine Forces Reserve determined the case sufficient in law and fact.  

030808:	GCMCA, Commanding General, 4^th Marine Aircraft Wing, Marine Forces Reserve, New Orleans, LA, directed the Applicant's discharge under other than honorable conditions by reason of separation in lieu of trial by court-martial.

030916:	Applicant discharged from United States Marine Corps Reserve with a characterization of service as under other than honorable conditions.  

041229:	NDRB documentary record review Docket Number MD04-01143 conducted.  Determination: discharge proper and equitable; relief not warranted.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030916 in lieu of trial by court-martial (A) with a service characterization of under other than honorable conditions.  After a thorough review of all available records, testimony, supporting documents, facts, and circumstances unique to this case, the Board found the discharge action to be improper which resulted in an inequity in the characterization of the Applicant’s service (B and C).  The Board’s vote was 3 to 2 that the characterization shall change to “honorable” and unanimous that the narrative reason for discharge shall change to “secretarial authority”.  

The Applicant contends that his discharge, based upon his refusal to be injected with the anthrax vaccine, was in violation to his constitutional rights.  Under applicable regulations, a discharge shall be deemed equitable unless it is determined that policies and procedures under which the Applicant was discharged differ in material respects from policies and procedures currently applicable on a service-wide basis provided that the current policies and procedures represent a substantial enhancement of rights afforded to the Applicant and there is substantial doubt that the Applicant would have received the same discharge if relevant current policies and procedures had been available to the Applicant at the time of the discharge proceedings. The Applicant was discharged on 20030916 in lieu of trial by court-martial (A) with a service characterization of under other than honorable conditions.  Specifically, the Applicant refused a direct order to take the Anthrax vaccination. In the years between the Applicant's discharge and his application to this Board, the United States District Court for the District of Columbia has issued an injunction prohibiting the Department of Defense's use of the Anthrax vaccine on the basis that the vaccine is unapproved for its intended use or an investigational new drug within the meaning of applicable statutes. Accordingly, the Court held that the involuntary anthrax vaccination program, as applied to all persons, is rendered illegal absent informed consent or a presidential waiver. Subsequent to that ruling, the Court modified its order and permitted the voluntary administration of the anthrax vaccination pursuant to the terms of a lawful emergency use authorization under the Federal Food, Drug, and Cosmetic Act. 
The Board concluded unanimously that the Applicant's case falls squarely within the above equity provision. Current policies and procedures have reduced the Department of Defense Anthrax vaccination program to voluntary status. This policy represents a substantial enhancement of the Applicant's rights and there is substantial doubt as to whether the Applicant would have been discharged for his conduct had the current policy been in effect at the time of the Applicant’s discharge. As such, the elements of the above test are satisfied as both to characterization and narrative reason for separation. The Board voted to change the discharge to Honorable/Secretarial Authority. Relief granted. 
In the Applicant’s case the NDRB has no authority to provide an additional review.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16F), effective 
01 September 2001 until Present.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

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