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AF | BCMR | CY2004 | BC-2001-00404A
Original file (BC-2001-00404A.doc) Auto-classification: Denied


                                 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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