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NAVY | DRB | 1999_Navy | ND99-01219
Original file (ND99-01219.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT


ex-GSMFR, USN
Docket No. ND99-01219
Applicant’s Request
The application for discharge review, received 990920, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing in the Washington National Capital Region. The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000713. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. The type of discharge received does not indicate the career that I had. I never was in any trouble. My evaluations were always good and never had any previous problems. I can't understand why I was given a general discharge. The commanding officer stated he did not feel comfortable about me taking orders for refusing to take the anthrax shot. I have never doubted my commanders authority. I just felt taking the shot was determental to my health. I would have obeyed any order but taking the shot, I felt, was not in the best interest of my health. I hope the board will review the records and render a discharge that should be honorable.

2. (Equity Issue) This former member further request that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Eight pages from applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     961112 - 970514  COG

 Period of Service Under Review :
Date of Enlistment: 970515               Date of Discharge: 990112

 Length of Service (years, months, days):

         Active: 01 07 28
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 52

 Highest Rate: GSMFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)*            Behavior: 3.00 (1)*               OTA: 3.17*

 Military Decorations: None

 Unit/Campaign/Service Awards: AFSM

Days of Unauthorized Absence: None

*Provided by applicant.

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

981113:  NJP for violation of UCMJ, Article 90: Willfully disobey lawful command of a commissioned officer on 12Nov98, to wit: refused anthrax vaccine shot.
         Award: Forfeiture of $463 per month for 2 months, restriction for 60 days, reduction to GSMFR. No indication of appeal in the record.
981125:  Applicant refused second anthrax vaccine shot.

 981209:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.
981209:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
990514:  Commanding officer directed discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. Commanding officer’s comments (verbatim): GSMFR (applicant) was punished at CO's NJP on 13 November 1998. The command was extremely disappointed to learn that GSMFR (applicant) refused an order to take the Anthrax vaccine shot. In the days preceding the scheduled anthrax vaccination shot on 12 November 1998, the ship's Medical Department and the Executive Officer conducted an intensive education program for the crew, publishing medical information on the Enlisted Mess Decks and in the ship's Plan of the Day. SUPPLY aired a TV broadcast during which the Executive Officer, Medical Officer and the Assistant Legal Officer answered many call-in questions from the crew. All concerns regarding the anthrax vaccine were addressed. The importance of every forward deployed servicemember receiving the full benefit of the anthrax vaccination program was strongly and persistently emphasized. SUPPLY, at the time, was operating in some of the most hostile and unstable areas of the world, where unfriendly countries had the means to deploy chemical or biological weapons against U.S. forces. The anthrax vaccination program was mandated by the Secretary of Defense because Navy ships must be prepared to face these dangers at any time. Refusing to participate in the vaccination program puts the remainder of the crew in danger and greatly affects the ship's mission. Prior to considering disciplinary/administrative action against GSMFR (applicant), I consulted with BUPERS on the best course of action in this very sensitive issue. Even though GSMFR (applicant) possessed some highly technical skills and had never been in trouble before, I could no longer depend on him to faithfully follow my orders. On 12 January 1999, GSMFR (applicant) was discharged from the Naval service with a General (under Honorable conditions) characterization.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990112 general (under honorable conditions) for misconduct due to commission of a serious offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (D and E).

In response to the applicant’s issue 1, the Board found that the applicant was taken to NJP for willfully disobeying a lawful command of a commissioned officer. The applicant could have been court martialed and received a Bad Conduct Discharge or a Dishonorable Discharge. Instead, the applicant’s commanding officer took into account the applicant’s entire service record, to include his evaluations and the fact that he had only one NJP. The Board found this decision proper and equitable based on the fact that the applicant disobeyed an order. No relief is granted based on this issue.

In response to the applicant’s issue 2, the applicant did not provide any documentation from which to render a decision based on post-service.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

 Pertinent Regulation/Law (at time of discharge)
 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until Present, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE .

B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article [e.g., 90, willfully disobeying a lawful command of a commissioned officer] if adjudged at a Special or General Court Martial
C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at " afls14.jag.af.mil ".

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      



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