ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 01-00404
INDEX NUMBER: 110.00
XXXXXXX COUNSEL: None
XXXXXXX HEARING DESIRED: No
_______________________________________________________________
APPLICANT REQUESTS THAT:
Her General (under honorable conditions) discharge be upgraded to
Honorable.
_______________________________________________________________
RESUME OF CASE:
On 13 Jun 01, the Board considered and denied the applicant’s request
as stated above (Exhibit F). The applicant made the following
contentions:
a. At the time of her discharge, no one could answer her
questions regarding the safety of the anthrax vaccine.
b. There have been other individuals that refused to take the
anthrax vaccine who received an honorable discharge.
c. Her service did not warrant a general discharge.
d. Two Reserve legal officers prepared a memo that questions
the legality of the anthrax vaccine.
In a letter to her Congressman, applicant contends a federal judge
ruled in Dec 03 the order to take the anthrax vaccine was illegal
(Exhibit G).
_______________________________________________________________
ADDITIONAL AIR FORCE EVALUATION:
Pursuant to the Board’s request HQ USAF/JAA (JAA) prepared an
evaluation of the new evidence submitted by the applicant. JAA
recommends the applicant’s request be denied. In their view the
applicant failed to demonstrate the existence of any newly discovered
relevant evidence that was not available when her application was
originally considered.
On 22 Dec 03, U.S. District Court Judge Emmet G. Sullivan ordered the
Department of Defense to stop administering the anthrax vaccine to
service members without their consent. The basis of the Court’s order
was the lack of a final decision by the Federal Drug Administration
(FDA) on the investigational status of the vaccine used to prevent
inhalation-induced anthrax. On 30 Dec 03, the FDA published a final
rule categorizing the anthrax vaccine as safe and effective for use
against inhalation anthrax. As a result of the FDA final rule
publication, on 7 Jan 04, the Court stayed its previous order and the
case remains pending for trial. Based on the FDA’s official ruling,
the applicant’s alleged basis for reconsideration is groundless.
Beyond the basis of the current litigation is the underlying issue of
the applicant’s willful refusal to obey the orders of her commander on
two occasions. The applicant does not contest her willful disobedience
to lawful orders resulting in her administrative discharge from the Air
Force, but explained that her disobedience was based on her concern the
vaccine would make her sick. The applicant’s refusal to be inoculated
is a direct flouting of military authority and detracted from the
ability of her unit to perform its mission. The applicant cannot
justify her disobedience of lawful orders, whatever they may be, by
asserting her health would be jeopardized.
The complete evaluation is at Exhibit H.
_______________________________________________________________
APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:
In her response to the Air Force evaluation, the applicant provides a
copy of an article regarding the court order on the anthrax vaccine.
The applicant also points out she did not want to end her Air Force
career at the time she was discharged.
The applicant’s complete response is at Exhibit J.
_______________________________________________________________
THE BOARD CONCLUDES THAT:
Insufficient relevant evidence has been presented to demonstrate the
existence of probable error or injustice. After reviewing the evidence
of record, which includes the recently submitted documentation, we
agree with and accept the recommendation of AF/JAA and adopt their
rationale as the primary basis for our determination the applicant has
not been the victim of an error or injustice. Additionally, we note
that litigation concerning the anthrax vaccination program is still
pending and that additional rulings have been made since the one
referenced by the applicant that the order to take the anthrax
vaccination was illegal. As such, we believe it would be premature for
us to recommend granting the applicant relief on the basis of a court
ruling until a final ruling has been determined. Therefore, we must
recommend the applicant’s request be denied.
_______________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not
demonstrate the existence of probable material error or injustice; that
the application was denied without a personal appearance; and that the
application will only be reconsidered upon the submission of newly
discovered relevant evidence not considered with this application.
_______________________________________________________________
The following members of the Board considered this application in
Executive Session on 15 December 2004, under the provisions of AFI 36-
2603:
Mr. Frederick R. Beaman, III, Panel Chair
Mr. Wallace F. Beard, Jr., Member
Ms. Deborah A. Erickson, Member
The following additional documentary evidence was considered:
Exhibit F. Record of Proceeding, w/atchs, dated 18 Jun 01.
Exhibit G. Letter, Applicant, undated, w/atchs.
Exhibit H. Memorandum, HQ USAF/JAA, dated 6 Oct 04.
Exhibit I. Letter, AFBCMR, dated 18 Oct 04.
Exhibit J. Letter, Applicant, undated, w/atch.
FREDERICK R. BEAMAN, III
Panel Chair
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