DRB DIGEST/EXECUTIVE SUMMARY
DRB DOCKET 2013-027
Under Honorable Conditions, None stated, JKQ, Misconduct, RE4
Upgrade to Honorable; Change RE code to RE-3
Majority vote: Partial Upgrade to Under Honorable Conditions
None
TIS 0 yrs, 8 months, 13 days |
Policy Implications __| None
EXECUTIVE SUMMARY:
The applicant’s complete record was available for review. The Separation package was not available.
However, the Board found sufficient information in electronic records and documents submitted by the
applicant to adjudicate the case. The applicant was discharged for Misconduct due to failure to comply with
requirement to receive the Anthrax vaccine. The applicant had received the initial anthrax shot in the summer
of 2003, thereafter the applicant was ordered to receive the remaining (mandated) injections, but refused the
vaccine. As a result of the non-compliant actions, the applicant received NJP for the Article 92 violation--
failure to obey order or regulation, in the refusal to receive the vaccine. The command quickly moved to
separate the member for Misconduct in the next 30 day window.
At the time of the discharge, the applicant’s record shows notification of the intent to discharge. The applicant
waived the right to consult with an attorney and waived the right to make a statement.
PROPRIETY: The Majority Board vote (3-2) finds no issues with propriety in this case. The applicant was
duly notified of the requirement to receive the vaccine, was taken to Captain’s mast for the refusal, and
continued to refuse to comply with orders. At Captain’s mast, the applicant was specifically found to have
violated Article 92 of the Uniform Code of Military Justice. Furthermore, the board sought current-day input
from internal stakeholders, and other services Discharge Review Boards on similar cases of Anthrax refusals in
this time period-- in which all entities concurred that the former member was at-fault and was properly
processed for separation. The Majority board recommends partial relief on the applicant’s Character of Service,
based on the post-policy issued in ALCOAST 562/08. The applicant’s character of service currently reads as
‘General’ which is no longer a valid option. Therefore, the board recommends that the character of service be
amended to Under Honorable Conditions.
The Minority Board vote (2-3) notes that the separation orders were authorized by PSC (EPM) on December 4,
2003. Per ALCOAST 568/03 released on December 24, 2003, the Coast Guard directed a temporary stop on
Anthrax injections based on a civil action filed against the mandatory immunizations. In spite of the new legal
opposition to remove the injections without member’s consent, the applicant was officially separated for
discharge on January 2, 2004 when no final ruling was made to determine if the immunizations should be a
required medical treatment for all military service members, i.e., a condition-of-employment. Not until January
8, 2004, did ALCOAST 008/04 order the resumption of Anthrax immunizations based off the Food and Drug
Administration’s ruling that the vaccinations were ‘safe’, although not completely necessary for service
members to carry out their duties.
EQUITY: The Majority Board (3-2) finds no issues with equity in this case. Coast Guard policy authorizes
discharge due to misconduct for personnel who refuse required medical treatment/vaccination. It is noted that
the applicant served during the armed forces mandate for all active duty and SELRES members to maintain the
standard Anthrax Vaccine Dosing Schedule in accordance with the Anthrax Vaccine Immunization Program
(AVIP). This window of time commenced on September 23, 2002 until an injunction was placed on the
mandatory vaccinations on October 27, 2004 (by U.S. District Court for the District of Columbia).
The Minority Board (2-3) concludes that the Narrative Reason (of Misconduct) for separation issued to the
member was flawed and lacked a substantial basis to terminate the applicant’s employment. While the applicant
was still a member of the USCG, and the immunizations were called into question (and halted), the applicant
was still separated by this questionable mechanism. Furthermore, the Secretary of Defense memo dated .
October 27, 2004 halted the immunizations again. And, ALCOAST 254/05 on May 12, 2005 stated the
following: “The Coast Guard may resume Anthrax vaccinations for personnel assigned to designated
commands but only under the condition that personnel scheduled to receive the Anthrax vaccination may
ACCEPT or REFUSE the vaccination. Personnel refusing the vaccination will not be punished. No Disciplinary
action or adverse personnel action will be taken. Personnel will not be processed for separation and there will
be no penalty or loss of entitlement for refusing the Anthrax vaccination. Personnel who refuse the Anthrax
vaccination remain deployable.” At the very minimum, the post-policy rulings of optional Anthrax vaccinations
deem that the applicant’s election was not an act of Misconduct.
Propriety: Discharge was proper.
Equity: Discharge was equitable.
Board Conclusion:
The Majority Board (3-2) recommends no relief to the applicant’s Separation code, Narrative Reason for
Separation, Separation Authority, or Reentry code.
The Majority Board (3-2) recommends partial relief on the applicant’s Character of Service to Under
Honorable Conditions. Per ALCOAST 562/08, the General Discharge is no longer valid.
The Minority Board (2-3) recommends the following changes:
Character of Service: Honorable
SPD code: JND
Narrative Reason: Separation for Miscellaneous/General Reasons
RE code: RE-3
Separation Authority: COMDTINST M1000.4, Article 1.B.12 (legacy Personnel Manual 12.B.12)
General Law review/endorsement recommends the following changes:
Character of Service: Honorable
SPD code: JND
Narrative Reason: Separation for Miscellaneous/General Reasons
RE code: RE-1
Separation Authority: COMDTINST M1000.4, Article 1.B.12 (legacy Personnel Manual 12.B.12)
Final Adjudication by Assistant Commandant For Human Resources: Concurs with General Law
review and endorsement. Relief is granted.
CG | DRB | 2013 - Discharge Review Board (DRB) | 2013 050
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