RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

      IN THE MATTER OF:            DOCKET NUMBER:  BC-2006-03012
            INDEX CODE:  126.00
      XXXXXXX                     COUNSEL:  NONE

                                  HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  6 APRIL 2008

__________________________________________________________________

APPLICANT REQUESTS THAT:

The punishment imposed under Article 15, Uniform Code of  Military  Justice
(UMCJ), dated 9 Jul 03,  whereby  he  was  reduced  in  grade  from  master
sergeant (MSgt) to technical sergeant (TSgt) be set aside; and his rank and
back pay be restored.

__________________________________________________________________

APPLICANT CONTENDS THAT:

The Anthrax Vaccine Immunization Program (AVIP) mandate which  precipitated
his loss of rank has been declared illegal.  He references Doe Vs Rumsfeld,
297 F. supp 2d 119 (D.C Cir. 2—3 & 2004); “This court is persuaded that AVA
(anthrax vaccine) is an investigational drug being used for  an  unapproved
purpose.  As a result of this status, the Department of Defense (DOD) is in
violation of 10 USC 1107, Executive Order 13139, and DOD Directive 6200.2”.


In support of his request, the applicant submits AF Form  3070,  Record  of
Nonjudicial Punishment Proceedings, his written response to the Article  15
proceedings and a character reference.

The complete submission, with attachments, is at Exhibit A.

__________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air  Force  on  31  Aug  84  and  was
progressively promoted to the grade of MSgt on 1 May 02.

On 16 Jun 03, the applicant was  notified  of  his  commander's  intent  to
impose nonjudicial punishment upon him for disobeying a lawful order on  22
May 03.

After consulting with counsel, the applicant waived his right to a trial by
court-martial, did not  request  a  personal  appearance  and  submitted  a
written presentation.

On 14 Jul 03, after consideration of the evidence presented, the  commander
determined he committed the  offense  alleged  and  imposed  the  following
punishment:  reduced him in grade to the grade of TSgt with a DOR of 9  Jul
03.

On 31 Aug 04, the applicant retired from the Air  Force  in  the  grade  of
TSgt. He served 20 years and 1 day of active duty.

On 14 Jan 04, the Secretary of the Air Force, Personnel  Council  indicated
the applicant did not serve satisfactorily in the higher grade and will not
be advanced to the grade of MSgt under  the  provisions  of  Section  8964,
Title 10, United States Code.
__________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states by  the  applicant  electing  to
resolve the alleged UCMJ violation in the nonjuduicial punishment forum, he
placed on his commanders the responsibility to decide whether he  committed
the offense and whether nonjudicial punishment was appropriate.  On the  AF
Form 3070, he signed and initialed each step in the process indicating  his
active participation in the process.  Although he declined the  opportunity
to present his case to the commander in person, he  presented  evidence  to
the commander in the form of a written statement.  The commander considered
the evidence presented and concluded the applicant  committed  the  offense
and nonjudicial  punishment  was  appropriate.    After  acknowledging  the
decisions, he waived his right to appeal; he could have challenged both the
Article 15 and the severity of the punishment. With respect to the  anthrax
vaccine, applicant is correct that  a  federal  court  did  hold  that  the
anthrax vaccine adsorbed (AVA) was ”an investigational drug” being used for
an unapproved purpose.  Indeed, that court issued a preliminary  injunction
against further inoculations without consent on 22  Dec  03,  seven  months
after  the  applicant’s  disobedience  of  his  commander’s   order.    The
injunction was made permanent on 27 Oct 04.  The FDA issued a certification
on 19 Dec 05, whereupon the injunction was dissolved.  Thus the  injunction
to which the applicant refers was temporary and the AVA has been  certified
as safe and effective for its intended  use.   Following  issuance  of  the
injunction, DOD policy was adjusted to permit members to refuse the anthrax
vaccination.  Following the dissolution  of  the  injunction,  DOD  resumed
mandatory  anthrax   vaccinations   for   specified   military   personnel.
Subsequently, the applicant has failed to overcome the presumption  of  the
lawfulness of the order.  While the vaccine has been controversial, and  an
injunction was issued for a period of time, there is  no  evidence  of  any
impropriety in ordering him to be inoculated on  22  May  03.  Indeed,  the
Court of Appeals for the Armed Forces has upheld the lawfulness of  anthrax
vaccination orders.  Dissolution of the injunction certainly  vitiates  any
legal arguments to the contrary. The  violation  of  a  superior  officer’s
order is a serious matter.  To be  lawful,  an  order  must  be  issued  by
competent authority, must be clearly  communicated  expressing  a  specific
mandate to do or not to do a specific act,  and  must  be  related  to  the
mandate of a military duty.  All three factors were present  in  the  order
the applicant failed to obey; further,  he  has  provided  no  evidence  of
unfairness or abuse of discretions in the Article 15 process.  Accordingly,
he presents no basis for finding material error or injustice  with  respect
to the nonjudicial punishment he received.

The complete copy of the JAJM evaluation is at Exhibit C.

DPPPWB recommends denial.  DPPPWB states JAJM has  reviewed  the  case  and
determined there were no legal errors requiring corrective action regarding
the nonjudicial punishment and recommends the Board  deny  the  applicant’s
request.  DPPPWB states the commander acted within his  authority  when  he
issued  the  Article  15  punishment.   DPPWB  therefore  defers   to   the
recommendation of JAJM regarding the applicant’s request to set  aside  the
Article 15 action.

The complete DPPPWB evaluation is at Exhibit D.

__________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the  applicant  on  2
Feb 07 for review and comment within 30 days.  As of this date, this office
has received no response (Exhibit D).

__________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented  to  demonstrate  the
existence of error or injustice.  The applicant's complete  submission  was
thoroughly reviewed and his contentions were duly noted.   However,  we  do
not find the applicant’s assertions  and  the  documentation  presented  in
support of his appeal sufficiently persuasive  to  override  the  rationale
provided by the Air Force offices of primary responsibility (OPRs).  In our
view, the  issues  raised  by  the  applicant  were  more  than  adequately
addressed by the OPRs.  Therefore, in the absence of sufficient evidence to
the contrary, we agree with the opinions and recommendations of  Air  Force
offices of primary responsibilities and adopt their rationale as the  basis
for our decision that the applicant has failed to  sustain  his  burden  of
establishing that  he  has  suffered  either  an  error  or  an  injustice.
Accordingly, we find no compelling basis to recommend granting  the  relief
sought in this application.

4.  The applicant's case is adequately documented and it has not been shown
that a personal appearance with or without counsel will materially  add  to
our understanding of the issues involved.  Therefore,  the  request  for  a
hearing is not favorably considered.

__________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did  not  demonstrate
the existence of 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 AFBCMR Docket Number BC-2006-
03012 in Executive Session on 8 Mar 07, under the  provisions  of  AFI  36-
2603:

                       Mr. Thomas S. Markiewicz, Chair
                       Ms. Teri G. Spoutz, Member
                       Ms. Renee M. Collier, Member

The following documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 25 Sept 06, w/atchs.
      Exhibit B.  Applicant’s Personnel Master Records.
      Exhibit C.  Letter, AFLOA/JAJM, dated 22 Dec 06.
      Exhibit D.  Letter, HQ DPPPWB, dated 23 Jan 07.
      Exhibit E.  Letter, SAF/MRBR, dated 2 Feb 07.




                                   THOMAS S. MARKIEWICZ
                                   Chair



                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC



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Office of the Assistant Secretary

AFBCMR
1535 Command Dr, EE Wing, 3rd Flr
Andrews AFB MD 20762-7002

XXXXXXX

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XXXXXXX

      Reference your application, AFBCMR BC-2006-03012 submitted under
the provisions of AFI 36-2603 (Section 1552, 10 USC).

      After careful consideration of your application and military
records, the Board determined that the evidence you presented did
not demonstrate the existence of material error or injustice.
Accordingly, the Board denied your application.

      You have the right to submit newly discovered relevant
evidence for consideration by the Board.  In the absence of such
additional evidence, a further review of your application is not
possible.

      BY DIRECTION OF THE CHAIR




                                                       GREGORY E.
JOHNSON
                                                             Chief
Examiner
                                                 Air Force Board
for Correction
                                                       of Military
Records

Attachment:
Record of Board Proceedings