RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 September 2006
      DOCKET NUMBER:  AR20050011501


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William F. Cain               |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. David W. Tucker               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his rank be restored to sergeant and that
he receive all back pay and allowances due him.

2.  The applicant states that he was given nonjudicial punishment for
refusing to obey an order to submit to the anthrax vaccination.

3.  The applicant provides copies of his commander's recommendation for
nonjudicial punishment with counseling statements; Department of the Army
Form 2627, Record of Proceedings Under Article 15, Uniform Code of Military
Justice, with applicant's statement; Under Secretary of Defense Memorandum,
subject: Anthrax Vaccine Immunization Program; and newspaper articles that
discuss the program.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records contain a 9 February 2004 memorandum from the
commander of the 1462nd Transportation Company of the Michigan Army
National Guard (MIARNG).  This memorandum shows that on 7 February 2004 the
applicant was taken to the Soldier Readiness Center to receive the Anthrax
Immunization.  The memorandum further shows that the applicant was
counseled prior to the administration of the Anthrax Immunization and that
his questions and concerns were addressed.  The applicant refused the
vaccination and was then given a direct order to receive the Anthrax
Immunization.  The applicant was counseled on his failure to obey a direct
order.

2.  The commander of the 1462nd Transportation Company recommended that
based on the applicant's failure to obey a direct order he be charged under
Article 15 of the Uniform Code of Military Justice.

3.  On 17 February 2004 nonjudicial punishment was imposed against the
applicant for failing to obey a direct order to receive an injection.  His
punishment is not shown in the available records.

4.  MIARNG Orders Number 068-093, dated 8 March 2004, show that the
applicant was reduced from sergeant/pay grade E-5 to specialist/pay grade E-
4.




5.  The applicant's records contain a DD Form 214 (Certificate of Release
or Discharge from Active Duty).  This form shows that the applicant entered
active duty on 18 December 2003 and served until he was honorably separated
on 18 August 2004.  This form further shows that the applicant's rank at
the time of his release from active duty was specialist/pay grade E-4.

6.  MIARNG Orders Number 125-007, dated 5 May 2005, show that the applicant
was discharged from the Army National Guard on 21 March 2005.

7.  MIARNG Orders Number 129-029, dated 9 May 2005, show that the applicant
was placed on the retired list on 22 March 2005 in the retired grade of
specialist/pay grade E-4.

8.  The applicant records contain an Army National Guard Current Annual
Statement, dated 5 July 2005, which shows that he completed 20 years of
creditable service towards retirement.  This form shows that the highest
grade the applicant successfully held was sergeant/pay grade E-5.  This
form further shows that the applicant retirement pay was calculated based
on the rank of sergeant/pay grade E-5.

9.  The Director of the Military Vaccine Agency of the Office of The
Surgeon General provided a comprehensive advisory opinion for review with
this case.

10.  The Director of the Military Vaccine Agency recommended that the ABCMR
deny the applicant's request because the order he received was lawful when
it was issued.  The Director of the Military Vaccine Agency contends that
the Anthrax vaccine was then and is now a vaccine licensed by the Food and
Drug Administration (FDA).

11.  The Director of the Military Vaccine Agency stated that on 22 December
2003 a District Court Judge issued an injunction against mandatory anthrax
vaccines and that the Department of Defense (DoD) promptly complied with
the injunction.

12.  The Director of the Military Vaccine Agency provided a copy of the
23 December 2003 Under Secretary of Defense Memorandum to the Secretaries
of the Military Departments, Chairman of the Joint Chiefs of Staff, Under
Secretaries of Defense, General Counsel, Department of Defense Inspector
General, Department of Defense Directors of Defense Agencies, and the
Commandant of the U.S. Coast Guard.  This memorandum stated that pending
further notice, the Deputy Secretary decided that DoD would stop giving
Anthrax Vaccinations until the legal situation was clarified.
13.  The Director of the Military Vaccine Agency continued that the
injunction was lifted after the FDA issued a Final Order in 30 December
2003 which satisfied the requirements of the District Court Judge.

14.  The Director of the Military Vaccine Agency contends that, on 7
January 2004, the Army resumed mandatory Anthrax Vaccinations.

15.  The Director of the Military Vaccine Agency provided a copy of the
7 January 2004 Under Secretary of Defense Memorandum to the Secretaries of
the Military Departments, Chairman of the Joint Chiefs of Staff, Under
Secretaries of Defense, General Counsel, Department of Defense Inspector
General, Department of Defense Directors of Defense Agencies, and the
Commandant of the U.S. Coast Guard.  This memorandum stated that the DoD
remained convinced that the Anthrax Vaccination Immunization Program
complied with all legal requirements and there is no judicial restraint on
the Anthrax Vaccination Immunization Program implementation.

16.  The Director of the Military Vaccine Agency stated that a policy which
addressed the resumption of the Anthrax Vaccination Immunization Program
was issued to the field in an All Army Activity (ALARACT) message dated
081457Z Jan 04.

17.  The Director of the Military Vaccine Agency continued that in February
2004 the Anthrax vaccine was licensed by the FDA and that the Anthrax
Vaccine has been licensed by the FDA without interruption since November
1970.

18.  The Director of the Military Vaccine Agency contends that on 27
October 2004, the District Court Judge issued another injunction against
the mandatory Anthrax Vaccinations and that this injunction was related to
the lack of public comment period.

19.  The Director of the Military Vaccine Agency provided a copy of the
27 October 2004 Under Secretary of Defense Memorandum to the Secretaries of
the Military Departments, Chairman of the Joint Chiefs of Staff, Under
Secretaries of Defense, General Counsel, Department of Defense Inspector
General, Department of Defense Directors of Defense Agencies, and the
Commandant of the U.S. Coast Guard.  This memorandum stated that a new
injunction had been imposed by a District Court Judge and as a result the
DoD would immediately stop giving the Anthrax Vaccination pending
clarification by the FDA, DoD and the Justice Department.  The memorandum
further stated that the DoD remained convinced that the Anthrax Vaccination
Immunization Program complied with all of the legal requirements and that
the Anthrax Vaccine was safe and effective.

20.  The Director of the Military Vaccine Agency argues that the FDA held
the public comment period and that, on 15 December 2005, the FDA  issued a
new Final Order.  In this Final Order the FDA found that the Anthrax
Vaccine was safe and effective in preventing anthrax disease regardless of
the route of exposure, including inhalation anthrax.

21.  The Director of the Military Vaccine Agency stated that paragraph 5-
4c(2) of Army Regulation 600-20 (Army Command Policy) authorizes the
commander to order Soldiers to be immunized with theater-specific or threat-
specific military immunizations.

22.  The Director of the Military Vaccine Agency opined that on 7 February
2004, the applicant's refusal to participate in the Anthrax Vaccine
Immunization Program, which was mandatory under the 7 January 2004 DoD
policy in effect at that time, constituted a failure to obey a direct
order.  The Director of the Military Vaccine Agency continued that
commanders may punish this offense with Administrative Action or in
accordance with the Uniform Code of Military Justice.  The Director of the
Military Vaccine Agency concluded that the applicant's chain of command
enforced the DoD and Army policy.

23.  On 20 June 2006, the applicant was provided a copy of the Director of
the Military Vaccine Agency advisory opinion for review and comment.  The
applicant did not provide a written response to the advisory opinion.

24.  Even though the FDA issued the final order, the Army continued to make
participation in the Anthrax Vaccination Immunization Program voluntary
pending reassessment of the program by the Department of Defense.  By
ALARACT Message, DTG210521Z January 2006, the Army directed continuation of
the Anthrax Vaccination Immunization Program as a voluntary program.  While
members declining vaccination would not be punished or separated they
remain deployable.

25.  Army Regulation 600-20, dated 13 May 2002, prescribes the policy and
responsibility of command, which include the well-being of the force and
military and personnel discipline and conduct.  Paragraph 5-4 of this
regulation states that commanders will ensure that Soldiers are continually
educated concerning the intent and rationale behind both routine and
theater-specific or threat- specific military immunization standards.
Paragraph 5-4c(12)a states that if a Soldier declines to be immunized, the
commander will ensure that the Soldier understands the purpose of the
vaccination, was advised of the purpose of vaccine, was advised of the
possibility that the disease may be naturally present in a possible area of
operation or may be used as a biological weapon against the United States
and its allies.  This paragraph continues that the commander will counsel
the Soldier in writing, that he or she is legally required to be immunized;
that if the Soldier continues to refuse to be immunized that he or she will
be legally ordered to do so, and that failure to obey the order may result
in Uniform Code of Military Justice and/or administrative action for
failure to obey a lawful order.

26.  The applicant provided a one-page self-authored statement in support
of this application.  In his statement, the applicant contends that he
refused to obey the order to receive the Anthrax Vaccination because it was
not approved for inhalation Anthrax.  The applicant continues that he was
given an Article 15 for refusing a direct order to take the Anthrax
Vaccination and was told that Soldiers deploying in support of Operation
Iraqi Freedom were required to receive the Anthrax Vaccination.  The
applicant cites that decisions by the District Court Judge as his basis for
his contention that the order to receive the Anthrax Vaccination was
illegal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his rank should be restored to sergeant
because the order to receive the Anthrax Vaccination was not a legal order.


2.  Evidence of record shows that at the time of the applicant's refusal to
participate in the Anthrax Vaccine Immunization Program, the Anthrax
Vaccine was not an optional or voluntary program.  Further, at the time the
applicant was ordered to participate in the Anthrax Vaccine Immunization
Program, there were no legal injunctions prohibiting the Department of
Defense from mandatory participation in the program.

3.  The applicant raises a question of equity that has the potential to
affect scores of Soldiers who received punishment as the result of their
refusal to take the Anthrax Vaccination.

4.  When not enjoined by the court, the Army legally and in accordance with
paragraph 5-4 of Army Regulation 600-20, required Soldiers to take the
Anthrax Vaccination and punished those that refused.  However, Soldiers
refusing the vaccination during the period 22 December 2003 through 7
January 2004 and since 27 October 2004 have faced no disciplinary action
for the refusal.

5.  The Army needs to ensure that its Soldiers are fit to fight and
protected from the potential harms they may face on the battlefield.  The
Army's decision to suspend mandatory vaccinations initially resulted from
the edict of a court and not a considered policy decision that the anthrax
threat did not warrant mandatory vaccinations.  As demonstrated by the
domestic anthrax scare following the events of 11 September 2001, the
threat of bioterrorism and use of bioterror agents by the enemy were, and
are, very real.

6.  In this environment, a Soldier's refusal to take a vaccine that would
protect him from a disease caused by a bioweapon puts that Soldier's life,
and ultimately the effectiveness of his unit, at risk.

7.  It is noted, that the current policy appears to present unequal
treatment for Soldier's committing the same act of refusal.  The timing of
an injunction imposed by the court serves as the only distinguishing factor
in the case of those Soldiers punished and not punished for refusing a
vaccine the FDA declared safe and effective in preventing inhalation
anthrax.

8.  Records show that the applicant was clearly counseled by appropriate
military authorities at the time of his refusal to participate in the
Anthrax Vaccination Immunization Program and that he was aware of the
consequences of his actions at that time.  Records further show that the
applicant chose to disobey a direct order to receive the Anthrax Vaccine.

9.  The FDA has determined that the Anthrax Vaccine is safe and the
Department of the Army and DoD have implemented a mandatory Anthrax
Vaccination Immunization Program.

10.  Therefore, the applicant has not provided sufficient evidence which
shows that the order to receive the Anthrax Vaccination was illegal.
Absent such evidence, there is no basis to grant the relief requested by
the applicant in this case.

11.  The applicant has requested that he be restored to the grade of
sergeant/pay grade E-5.  As stated previously the applicant chose to
disobey a lawful order and received appropriate punishment for this act. 
The applicant has been notified of his qualification for non-regular
retired pay; but, he is not eligible to receive this retired pay until
reaching the age of 60.  Therefore, it would not be appropriate to address
restoration of the applicant's pay grade at this time.


12.  The applicant may apply to the Army Grade Determination Review Board
(AGDRB) to request advancement on the Retired List to the grade of
sergeant/pay grade E-5 upon becoming eligible for retired pay at age 60. 
If he is not satisfied with the AGDRB decision, he may again apply to the
ABCMR for consideration of his request for advancement to sergeant/pay
grade E-5.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JCR___  _DWC___  _WFC___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





                                     __William F. Crain_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050011501                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060921                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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