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NAVY | BCNR | CY2006 | 04561-06
Original file (04561-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                                    2 NAVY ANNEX
WASHINGTON DC 20370-5100

                                             TRG
Docket No: 4561-06
31 October 2007


This is in reference to your application for correction of your naval record pursuant to the provisions of title 10 of the United States Code section 1552.
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 23 October 2007. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, your naval record and applicable statutes, regulations and policies.
After careful and conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice.
You enlisted in the Navy on 17 June 1996 at age 18. You then served without incident for almost three years. On 14 May 1999, you received nonjudicial punishment for disobedience of an order to take the anthrax vaccine. You were counseled and warned that continued disobedience could lead to an administrative discharge. Subsequently, you refused another order to take the vaccine.
Based on your disobedience, you were processed for an administrative discharge by reason of misconduct. At that time, you were informed that the least favorable characterization of service would be a general discharge. Your commanding officer stated in his letter directing a general discharge, in part, as follows:
[He] has alienated himself from the crew and has continued to disobey orders to take the shot. Moreover, his demeanor towards senior Petty Officers [sic) and Commissioned Officers(sic) is frequently disrespectful and insubordinate, and is simply not acceptable. His continued resistance to obey lawful orders and the crew’s knowledge of his resistance are prejudicial to good order and discipline...
 You received the general discharge on 10 January 2000.
In its review of your application, the Board carefully weighed all potentially mitigating factors, such as your period of good service, your belief, in effect, that the order to take the anthrax vaccine was illegal, and the documentation you submitted concerning proposed legislation, titled the Armed Forces Immunization and Health Justice Act of 2005, that would have prohibited the Department of Defense from requiring members of the Armed Forces from receiving anthrax and smallpox immunizations without their consent. The proposed legislation also directed correction to the records of those previously punished for refusing to take these vaccines. The Board found that these factors were not sufficient to warrant recharacterization of your discharge. An internet search revealed that the proposed legislation was never enacted into law. Further, the United States Court of Appeals for the Armed Forces has upheld the legality of an order to take the anthrax vaccine. The Board concluded that the general discharge by reason of misconduct was proper as issued and no change is warranted.
Accordingly, your application has been denied. The names and votes of the members of the panel will be furnished upon request.
It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon submission of new and material evidence or other matter not previously considered by the Board. In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.
Sincerely,



                                                                W. DEAN PFEIFFER
Executive Director

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