RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-01924
            INDEX CODE:  110.02

            COUNSEL:  NONE

            HEARING DESIRED: NO


MANDATORY CASE COMPLETION DATE:  26 December 2007


_________________________________________________________________

APPLICANT REQUESTS THAT:

Her general (under honorable conditions) discharge be upgraded to  an
honorable discharge and remove the Article 15 dated 11 July 2000 from
her records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Her discharge is inequitable because it does not reflect the  quality
of her service nor the honor in which she served; it was based  on  a
controversial, isolated incident regarding her refusal  to  take  the
anthrax  vaccine.   Furthermore,  the  nonjudicial   punishment   she
received  should  not  be  retained  in  her  records   because   the
administrative punishment itself is inequitable in light  of  current
Air Force policy.

In  support  of  her  appeal  the  applicant  submitted  a   personal
statement,   Enlisted   Performance    Report    (EPR),    separation
documentation,   Air   Force   Discharge   Review    Board    (AFDRB)
determination, Article 15, Current Air Force policy and Federal Cases
and Supporting Affidavits.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force (RegAF) on 22 April  1998
in the grade of airman basic (AB) for a period of four years.

The  notification  memorandum  notifying  the  applicant   that   her
commander was initiating discharge action  is  not  on  file  in  her
master personnel records.   However,  according  to  the  base  legal
office memorandum dated 18 July  2000,  the  applicant  was  properly
notified on 12 July 2000.  The applicant acknowledged receipt of  the
notification of discharge and after  consulting  with  legal  counsel
submitted statements in her own behalf.

The specific reason  for  the  discharge  action  was  the  applicant
refused a direct order to take the Anthrax vaccination  and  received
an Article 15.  The applicant’s commander in the  recommendation  for
discharge recommended  the  applicant  be  discharged  with  a  under
honorable  conditions  (general)  discharge  without  probation   and
rehabilitation.

The commander indicated in his recommendation for discharge that  the
applicant demonstrated a lack of commitment to the standards of order
and discipline expected of an Air Force member.  He further stated he
utilized the rehabilitative tools available to afford  the  applicant
the opportunity to  become  a  productive  member  of  the  unit  and
responsible military member.  In addition, he took  steps  to  ensure
the applicant received briefings from the Medical Group regarding the
Anthrax vaccination.

On 18 July 2000, a legal review was  conducted  in  which  the  staff
judge advocate recommended the applicant receive an  under  honorable
conditions (general) discharge.

On 18 July 2000, the discharge authority approved the separation  and
directed the applicant be discharged with a general (under  honorable
conditions) discharge without probation and rehabilitation.

Applicant was separated from the Air Force on 24 July 2000 under  the
provisions  of  AFI  36-3208,  Administrative  Separation  of  Airmen
(misconduct), with an under honorable conditions (general) discharge.
 She served two years, three months and three  days  of  active  duty
service.

The applicant  submitted  an  appeal  to  the  Air  Force  Board  for
Correction of Military Records (AFBCMR) on 11 September 2002 to  have
her Reenlistment Eligibility (RE) code  changed  to  one  that  would
allow her reentry into the AF.  On 4 February 2003 the  Board  denied
the applicant’s request for a change in her RE code.

On 15 October  2003,  the  applicant  appealed  to  the  Air  Force
Discharge  Review  Board  (AFDRB)  to  have  her  under   honorable
conditions (general) discharge upgraded to honorable.  On 15  April
2004,  the  AFDRB  concluded  the  applicant’s  misconduct  was   a
significant departure from conduct expected of all military members
and  the  characterization  of  the  discharge  she  received   was
appropriate.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends the requested relief be denied.  They state  an
Article 15 should be set aside only when the  evidence  presented  in
the application demonstrates a  material  error  or  injustice.   The
applicant has failed to do so.

A commander who considers a case for  disposition  under  Article  15
exercises personal discretion in evaluating  the  case,  both  as  to
whether nonjudicial punishment is appropriate and, if so, as  to  the
nature and amount of punishment.  Unless a commander’s  authority  to
act in a particular  case  is  properly  withheld,  that  commander’s
discretion is unfettered so long as the  commander  acts  within  the
limits and parameters of the his legal authority.   In  the  case  of
nonjudicial punishment, Congress (and the Secretary of the Air Force)
has  designated  only  two  officials  with  the  responsibility  for
determining the appropriateness of an  otherwise  lawful  punishment:
the commander and the appeal authority.  As long as they are lawfully
acting within the scope of the authority granted them by  law,  their
judgment should not be disturbed to substitute a different after-the-
fact view of others.   Commanders  “on  the  scene”  have  first-hand
access to  facts  and  appreciation  for  the  needs  of  morale  and
discipline in their command that  even  the  best-intentioned  higher
headquarters cannot match.

By electing to resolve the alleged violation of UCMJ  Article  90  in
the  nonjudicial  punishment  forum,  the  applicant  placed  on  her
commander the responsibility to  decide  whether  she  committed  the
offense and whether  nonjudicial  punishment  was  appropriate.   The
applicant on the AF Form 3070 signed and initialed each step  in  the
process indicating she was actively participating.  The applicant had
the opportunity to present evidence to the commander, and did in fact
make a written presentation.  The commander had the facts before  him
that the applicant elected to present.  The commander considered  all
matter presented and concluded that applicant committed  the  alleged
offense  and  that  nonjudicial  punishment  was  appropriate.    The
applicant after acknowledging her  commander’s  decision  waived  her
right to appeal.

The  federal  district  court  found   that   the   Food   and   Drug
Administration (FDA) failed to comply with public notice and  comment
procedures in classifying the anthrax vaccine as a Category  I  drug.
On  27  October  2004,  the  court  issued  a  permanent   injunction
preventing DOD from administering the anthrax vaccination to military
members without their consent until the FDA properly classified it as
a safe and effective drug for its intended use.  The FDA issued  such
a  classification  on  19 December  2005,  however,   whereupon   the
injunction dissolved.

Although, the DOD policy was adjusted for a period after the  federal
court decision to permit members to refuse the  anthrax  vaccination,
DOD has now resumed  mandatory  anthrax  vaccinations  for  specified
military personnel.

A complete copy of the AFLOA/JAJM evaluation is at Exhibit C.

AFPC/DPPRS 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.   She  has  not
provided any facts warranting a change in her character of service or
removal of the Article 15.

A complete copy of the AF/DPPRS evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluations and states  the  Air
Force Personnel Center advisory does not address the  merits  of  her
case.  The opinion only states the separation process  was  completed
properly and there were no “errors or injustices that occurred in the
discharge processing.”   However,  the  Air  Force  Legal  Operations
Agency advisory opinion squarely addressed the basis of her request.

At the time she was ordered to comply with  the  Anthrax  Vaccination
Immunization Program (AVIP), the anthrax vaccine absorbed  (AVA)  was
not approved for its intended use,  and  the  Department  of  Defense
(DOD) was illegally mandating the AVIP.  An injunction was issued  by
the U. S. District Court of the District of Columbia prohibiting  the
DOD from proceeding with the AVIP.  The court stated the “AVA  is  an
investigational drug and a drug being used for an unapproved purpose.
 As a result of this status, the DOD  is  in  violation  of  10  USC,
Section 1107, Executive Order 13139, and DOD Directive 6200.2.  It is
irrelevant that this  injunction  expired  once  the  Food  and  Drug
Administration (FDA) approved the AVA for its intended use.  What  is
important is that the AVA was not approved for use at  the  time  she
was punished and separated from the Air Force for  refusing  to  take
the AVA.

At the time she was ordered to comply with the  AVIP,  the  President
had not issued a waiver allowing for an emergency use  authorization.
However, her commander was not implementing the AVIP pursuant to  any
emergency use authorization.  It is  irrelevant  that  the  President
subsequently issued a waiver allowing the DOD to administer  the  AVA
for emergency uses subsequent to her discharge.

Since the  submission  of  her  request,  DOD  has  resumed  limited,
mandatory AVA  vaccinations.   The  mandate  only  applies  to  those
persons  in  military  units  designated  for  homeland  bioterrorism
defense, those  assigned  to  the  U.S.  Central  Commander  area  of
responsibility, and those  assigned  in  Korea.   All  other  persons
retain the right to  refuse  the  AVA  and  cannot  be  punished  for
refusing to take AVA.  She was not assigned to any of  these  limited
positions.  Thus, if the current Air Force policy was  in  effect  at
the time she refused to  take  the  AVA,  she  could  not  have  been
punished for such a refusal.  Regardless, it was illegal  to  mandate
participation in the AVIP at the time she refused to the AVA (Exhibit
F).

_________________________________________________________________

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.    Insufficient relevant evidence has been presented to demonstrate
the existence of error or injustice regarding the applicant’s  request
for removal from her records of the  Article  15  imposed  on  11 July
2000.  We took  notice  of  the  applicant’s  complete  submission  in
judging the  merits  of  the  case;   however,  we  did  not  find  it
sufficient to override the  rationale  provided  by  AFLOA/JAJM.   The
evidence of record reflects that her commander determined that she had
committed the alleged offense of willfully disobeying an  order  of  a
superior  commissioned  officer,  and  made  the  decision  to  impose
nonjudicial punishment  under  Article  15.   We  note  the  applicant
elected to accept nonjudicial punishment rather than  being  tried  by
court-martial.  We are  not  inclined  to  disturb  the  discretionary
judgment of commanding officers, who are closer to  events,  absent  a
strong showing of abuse of that authority.  Therefore, in the  absence
of evidence which shows  to  our  satisfaction  that  the  applicant’s
substantial rights were violated, she was coerced to waive any of  her
rights, or the commander who imposed the nonjudicial punishment abused
his discretionary authority, we  conclude  that  no  basis  exists  to
recommend favorable action on the applicant’s request  to  remove  the
Article 15.

4.    Sufficient relevant evidence has been presented  to  demonstrate
the existence of an error or an injustice to warrant  partial  relief.
The  Board  believes  based  on  the  documentation  provided  by  the
applicant, her military records and the  mitigating  factors  of  this
case finds that the characterization of  the  applicant’s  service  as
less than honorable was harsh.  The Board  noted  that  prior  to  the
events under review; the applicant was serving her  country  honorably
and faithfully.  Therefore, in view of the above, the Board recommends
her records be corrected as 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 24 July  2000,  she
was  honorably  discharged  under  the  provisions  of  AFI   36-3208,
Secretarial Authority, and issued a Separation Program Designator code
of “KFF.”

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2006-01924 in Executive Session on 10 April 2007 under the  provisions
of AFI 36-2603:

                 Ms. Charlene M. Bradley, Panel Chair
                 Ms. Josephine L. Davis, Member
                 Ms. Patricia R. Collins, Member

All  members  voted  to  correct  the  records  as  recommended.   The
following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 14 Jun 06, w/atchs.
   Exhibit B.  Master Personnel Records.
   Exhibit C.  Letter, AFLOA/JAJM, dated 19 Dec 06.
   Exhibit D.  Letter, AFPC/DPPRS, dated 10 Jan 07.
   Exhibit E.  Letter, SAF/MRBR, dated 16 Feb 07.
   Exhibit F.  Letter, Applicant, dated 14 Mar 07.




                                        CHARLENE M. BRADLEY
                                        Panel Chair






AFBCMR BC-2006-01924


MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered  the  recommendation  of  the  Air
Force Board for Correction of Military Records and under the  authority
of Section 1552, Title 10, United States Code  (70A  Stat  116)  it  is
directed that:

      The pertinent military records of the Department of the Air Force
relating to              , be corrected to show that on 24  July  2000,
she was honorably discharged  under  the  provisions  of  AFI  36-3208,
Secretarial Authority, and issued a Separation Program Designator  code
of “KFF.”




                             JOE G. LINEBERGER
                             Director
                             Air Force Review Boards Agency