RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2007-03587
		INDEX CODE:  110.02
		COUNSEL:  NONE
		HEARING DESIRED:  NO

________________________________________________________________
_

APPLICANT REQUESTS THAT:

His general (under honorable conditions) discharge be upgraded 
to honorable; his reenlistment eligibility (RE) code of 2B 
(separated with a general or under other than honorable 
conditions) be changed; and his narrative reason for discharge 
changed.
________________________________________________________________
_

APPLICANT CONTENDS THAT:

Changes in regulation regarding the Anthrax vaccine and the fact 
that he got ill after receiving the vaccine should justify the 
change.

In support of his request, applicant provided copies of his DD 
Form 214, Certificate of Release or Discharge from Active Duty, 
Congressional responses, transcripts, certificates, medical 
documents, and newspaper articles.

The applicant's complete submission, with attachments, is at 
Exhibit A.

________________________________________________________________
_

STATEMENT OF FACTS:

On 2 Jul 03, the applicant’s commander ordered the applicant to 
report to the Immunization Clinic and receive an Anthrax 
vaccination on that day.  The applicant refused.  On 15 Jul 03, 
the applicant received an Article 15, Record of Non-judicial 
Punishment, for willfully disobeying a lawful command.  

On 19 Aug 03, the applicant’s commander ordered the applicant to 
report to the Immunization Clinic and receive his fourth Anthrax 
vaccination within one hour.  The applicant refused.  The 
applicant received an additional Article 15 on 28 Aug 03.

On 11 Sep 03, the applicant was notified that his commander was 
recommending him for involuntary discharge for commission of a 
serious offense, with a general (under honorable conditions) 
discharge.

The wing commander subsequently withdrew the action and 
reinitiated the discharge action, with an under other than 
honorable conditions (UOTHC) discharge.

On 13 Nov 03, an administrative discharge board convened and 
recommended discharge with a UOTHC and did not offer probation 
and rehabilitation.  The staff judge advocate found the case 
legally sufficient, and on 8 Dec 03, the separation authority 
approved the discharge.  The applicant was discharged on 11 Dec 
03.

On 13 Jan 04, the applicant submitted an application to the Air 
Force Discharge Review Board (AFDRB).  The AFDRB concluded that 
the overall quality of the applicant’s service was more 
accurately described as general (under honorable conditions).  
The applicant’s characterization of discharge was changed to 
general (under honorable conditions).

________________________________________________________________
_

AIR FORCE EVALUATION:

AFPC/DPSOS recommends denial.  Based on the documentation on 
file in the master personnel records, the discharge was 
consistent with the procedural and substantive requirements of 
the discharge regulation.  The discharge was within the 
discretion of the discharge authority.  The applicant did not 
submit any evidence or identify any errors or injustices that 
occurred in the discharge processing.  He provided no facts 
warranting a change to his character of service or RE code.

The complete AFPC/DPSOS evaluation is at Exhibit C.

AFPC/DPSOA recommends denial.  DPSOA states they found no 
evidence of error or injustice; nor did the applicant submit 
evidence of any.  The applicant voluntarily failed to obey a 
lawful order and take the fourth shot in the Anthrax vaccination 
series.

The complete AFPC/DPSOA evaluation is at Exhibit D.

AFPC/JA recommends denial.  JA states that because Anthrax 
Vaccination Program vaccination orders were inferred to be 
lawful at the time the applicant disobeyed his order, they opine 
that relief is not warranted.

The complete AFPC/JA evaluation is at Exhibit E.

________________________________________________________________
_

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant states that only upon getting very sick after he 
received his second and third vaccination did he start to refuse 
further vaccinations.  He only took the third vaccination 
because he felt pressure to do so, even though he had already 
lost a significant amount of weight and was having severe side 
effects.  His side effects included diarrhea so severe he was 
passing mucus through his bowels, joint pain, weight loss, and a 
new sensitivity to certain foods.  

He states that as with any vaccine there is a potential to have 
mild to severe side effects; however, in his case, they were 
very severe and he could not in good conscience continue to take 
a vaccine that was making him so ill.

He states he was never told that possible side effects could 
result in a one to two percent death rate as stated by the FDA; 
therefore, he could not give an informed consent.

Since his discharge, he has followed information about the 
Anthrax vaccine and the case Doe vs. Rumsfeld applies to him 
because he was made to take an experimental drug that had 
substantial side effects and was not able to give informed 
consent.

The applicant's complete response is at Exhibit G.

________________________________________________________________
_

BCMR MEDICAL CONSULTANT’S EVALUATION:

The BCMR Medical Consultant recommends granting partial relief 
by changing the applicant’s DD Form 214 to reflect the narrative 
reason for separation as Secretarial Authority and the service 
characterization as honorable.  The BCMR Medical Consultant 
fully acknowledges the importance of maintaining good order and 
discipline in order to maintain the nation’s mission and that 
failure to follow a lawful order is unacceptable.  However, 
based collectively upon a number of  unique factors in the 
applicant’s case, to include his willingness to voluntarily 
deploy on short notice, his initial acceptance and compliance 
(three times) with the Anthrax vaccine program, and his refusal 
to comply only at the development of clinical symptoms which 
were concerning enough that it impacted his judgment as to 
whether to comply at the risk of unknown peril, the Board may 
consider granting the applicant relief in the interest of 
fairness and justice.  

Changing the applicant’s RE code, however, is not advised, based 
upon the vulnerability of again requiring the Anthrax vaccine 
and the unknown risk for a recurrence of adverse clinical 
symptoms that may preclude military service; whether attributed 
to the Anthrax vaccine or other causes.

The complete BCMR Medical Consultant’s opinion is at Exhibit H.

________________________________________________________________
_



APPLICANT'S REVIEW OF BCMR MEDICAL CONSULTANT’S EVALUATION:

A copy of the BCMR Medical Consultant’s evaluation was sent to 
the applicant on 15 May 08 for review and response (Exhibit I).  
As of this date, this office has not received a response.

________________________________________________________________
_

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by 
existing law or regulations.

2.  The application was not timely filed; however, it is in the 
interest of justice to excuse the failure to timely file.

3.  Sufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice.  After 
reviewing the applicant’s submission and the evidence of record, 
we are persuaded that some relief is warranted.  Consideration 
of this Board is not limited to the events which precipitated 
the discharge and we may base our decision on matters of equity 
and clemency rather than simply on whether rules and regulations 
which existed at the time were followed.  We note that the 
discharge action taken against the applicant was in accordance 
with the applicable instruction.  However, noting the AFDRB’s 
upgrade of his discharge to general (under honorable conditions) 
and taking into consideration our broader mandate to provide 
relief based on matters of equity and clemency, we are not 
persuaded that another upgrade of his discharge is warranted, 
but we are persuaded that his narrative reason for discharge is 
more accurately reflected as Secretarial Authority.  We note his 
contention that he meets the criteria as set forth in Doe vs. 
Rumsfeld; however, we agree with the opinion and recommendation 
of HQ AFPC/JA in that the anthrax vaccination orders were 
inferred to be lawful at the time the applicant disobeyed two 
orders to take the shots.  In regard to the applicant’s request 
concerning a change to his reenlistment code, we agree with the 
opinions and recommendations of the Air Force offices of primary 
responsibility and the BCMR Medical Consultant and adopt their 
rationale as the basis for our conclusion that the applicant’s 
RE code remain unchanged.  Therefore, we recommend his records 
be corrected only to the extent indicated below.

________________________________________________________________
_

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air 
Force relating to APPLICANT, be corrected to show that on 11 
December 2003, he was discharged under the provisions of AFI 36-
3208, paragraph 2.17.3, with a narrative reason for separation 
of Secretarial Authority.  

________________________________________________________________
_

The following members of the Board considered Docket Number BC-
2007-03587 in Executive Session on 9 September 2008, under the 
provisions of AFI 36-2603:

Mr. XXXXXXXXXX, Panel Chair
Ms. XXXXXXXXXX, Member
Ms. XXXXXXXXXX, Member

All members voted to correct the records, as recommended.  The 
following documentary evidence was considered for Docket Number 
BC-2007-03587:

     Exhibit A.  DD Form 149, w/atchs, dated 22 Oct 07.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPSOS, dated 29 Nov 07.
     Exhibit D.  Memorandum, AFPC/DPSOA, dated 3 Dec 07.
     Exhibit E.  Memorandum, AFPC/JA, dated 27 Feb 08.
     Exhibit F.  Letter, SAF/MRBR, dated 7 Mar 08.
     Exhibit G.  Applicant’s Rebuttal, dated 3 Mar 08.
     Exhibit H.  Memorandum, BCMR Medical Consultant,
                 dated 14 May 08.
     Exhibit I.  Letter, SAF/MRBR, dated 15 May 08.




                                   XXXXXXXXXXXXX
                                   Panel Chair