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Docket No. ND06-00077

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

FOR OFFICIAL USE ONLY

 ex-MMFN, USN
Docket No. ND06-00077

Applicant’s Request

The application for discharge review was received on 20051017.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060721.  After a thorough review of the available 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 that the character of the discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and an attached document/letter:

“Applicant was discharged and separated from Service for refusal to submit to Anthrax Vaccination; Circumstances under which the Anthrax Vaccination Immunization Program were administered was determined to be illegal, by ruling of Federal District Court.”

“Applicant believes that the discharge received should be upgraded to Honorable and submits the following issues for the Board’s consideration:

1. The discharge was inequitable since it was predicated upon the Applicant’s refusal to submit to the anthrax vaccination which was ordered by the Department of Defense under its Anthrax Vaccination Immunization Program (AVIP).

The United States District Court for the District of Columbia found that the vaccine’s use without informed consent of a service member or a Presidential waiver (which was never issued) is unlawful.  (Page 34-35 of Court opinion).  Applicant incorporates by reference the copy of the District Court’s Order submitted as supporting documentation.  The following language is included in the Court’s opinion:

“Congress has prohibited the administration of investigational drugs to service members without their consent.  This Court will not permit the government to circumvent this requirement.  The men and women of our armed forces deserve the assurance that the vaccines our government compels them to take into their bodies have been tested by the greatest scrutiny of all- public scrutiny.  This is the process the FDA in its expert judgment has outlined, and this is the course this Court shall compel the FDA to follow.” (Page 40 of Court’s Opinion)

The Court entered summary judgment in favor of the plaintiffs and has enjoined the Pentagon from continuing its Anthrax Vaccination Immunization Program.

2.  The discharge was inequitable since the Applicant’s conduct and service was otherwise honorable.  The narrative reason for the discharge, i.e. pattern of misconduct, was due to the Applicant’s continued refusal to submit to the anthrax vaccination.  In addition to restriction aboard ship, reduction in pay grade, and re-assignment of the Applicant from nuclear power watch to galley duties, the Applicant was ordered to muster several times per day during the period of restriction.  The Applicant missed muster on few occasions during said period and was fined for failure to appear, but otherwise has an unblemished record in the United States Navy.  Were it not for the Order to submit to the AVIP, the Applicant would have continued to serve honorably in the United States Navy as a nuclear power technician.

Representative (Item 10)

Applicant respectfully requests that the Board allow the intervention of the American Legion or other recognized veterans’ organization as representative of the Applicant in this matter.”

“Applicant submits that his conduct, since separation from the United States Navy, has been honorable.  Applicant is presently enrolled in undergraduate studies at North Central College, Naperville, Illinois, and is currently engaged in part time employment to support his efforts to obtain an education.

Applicant intends to further his education and has recently completed the GRE and submitted applications for graduate studies.

Applicant respectfully requests the Board to consider the supporting documentation in its decision on Review of the Discharge granted to the Applicant.

Respectfully submitted,
[signed]
D_ A. B_ Applicant”

Applicant’s representative submitted no issues for consideration.

Documentation

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

Applicant’s DD Form 214
Civil Action No. 03-707 (John Doe, et al., v. Donald H. Rumsfeld, et al) (41 pages)
Character Reference ltr from A_ D_ K_, Chair, Department of History, North Central College, dtd September 30, 2005
Certificate of Achievement, dtd May 17, 2005
E-mail from T_ S_, Director, Office of Academic Opportunities, dtd September 28, 2005
North Central College transcript, undated

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19960430 - 19960918	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19960919		Date of Discharge:  19990318

Length of Service (years, months, days):

	Active:    02  05  24  (excludes lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  6 days
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4 (24 month extension)

Education Level:  12				AFQT:  95

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*				Behavior:  NA*		OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Armed Forces Service Medal, Battle “E” Ribbon

* Not Available

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

GENERAL (UNDER HONORABLE CONDITIONS)/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events: 

960430:	Pre-service waiver for drug use granted.

981102:	NJP for violation of UCMJ, Article 90: Failure to obey a lawful command from a Captain to take his anthrax vaccination.
	Award:  Restriction for 60 days, reduction to E-3.  No indication of appeal in the record.

981121:	NJP for violation of UCMJ, Article 86 (3 specs):  Failure to go to appointed place of duty, to wit, restricted personnel muster on three occasions.
	Award:  Forfeiture of $200 per month for 1 month.  No indication of appeal in the record.

981121:	Retention Warning:  Advised of deficiency (At CO’s NJP of 21 November 1998, found guilty of a violation of the UCMJ, Article 86 (3 specifications):  Failure to go to appointed place of duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990127:	NJP for violation of UCMJ, Article 86:  Fail to go at the prescribed time to appointed place of duty, to wit: restricted personnel musters on two occasions.
	Award:  Forfeiture of $200 per month for 1 month.  No indication of appeal in the record.

990128:	Offense Report to Discipline Officer:  The [Applicant] refused to follow a direct order issued by LTJG D_ on 27 Jan 99.  The order was to take the Anthrax shot.  Reactor Department Head comments:  Recommend ADSEP.

990129:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

990129:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

990203:	Applicant to unauthorized absence at 0645 on 990203.

990209:	Applicant from unauthorized absence at 0940 on 990209 (6 days/surrendered).  EAOS changed to 000924.

990318:	Applicant discharged under honorable conditions (general) by reason of misconduct due to a pattern of misconduct.

990612:	Commanding Officer, USS DWIGHT D. EISENHOWER (CVN 69), reported the Applicant was discharged on 990318 with a characterization of general (under honorable conditions) by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “MMFN B_(Applicant) has repeatedly refused to take his Anthrax vaccination.  His continuing misconduct is incompatible with the Naval service.  I have determined that MMFN B_(Applicant) has no potential for future service and should be separated with a General (Under Honorable Conditions) discharge by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.”

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 19990318 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of general (under honorable conditions).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions or general discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by a retention warning, three nonjudicial punishment proceedings (NJP) for violations of Articles 86 and 90 of the UCMJ.  The Applicant’s violation of Article 90 is considered the commission of a serious offense.  The Applicant also had a six-day period of unauthorized absence which was not adjudicated.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his discharge is inequitable “since it was predicated upon the Applicant’s refusal to submit to the anthrax vaccination.”  The Applicant’s issue is without merit.  The Applicant was not discharged for refusal of the anthrax vaccination.  The Applicant was discharged by reason of misconduct due to a pattern of misconduct.  Independent of the Applicant’s Article 92 violation which resulted in his first nonjudicial punishment, the Applicant met the criteria for discharge for misconduct due to a pattern of misconduct.  Therefore, the Board determined that the reason for discharge was appropriate and that the Applicant’s discharge was properly characterized.  Relief denied.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  The Applicant provided a character reference and proof of academic achievement.  Additional examples of documentation that should be provided to the Board include proof of verifiable employment records, documentation of community service and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 90, willfully disobeying a superior commissioned officer.

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

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

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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