Search Decisions

Decision Text

USMC | DRB | 2001_Marine | MD01-00532
Original file (MD01-00532.rtf) Auto-classification: Denied


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

ex-PVT, USMC
Docket No. MD01-00532

Applicant’s Request
The application for discharge review, received 010315, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010906. 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 three to two that the character of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My discharge was inequitable because there are no long term studies done on the Anthrax Vaccine.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Listing of Anthrax Vaccine Refusers (2pgs)
Army Faulted on Germ War Research Letter (2pgs)
Newspaper Article (Firm Loses anthrax vaccine formula)
Article from Coroner: Anthrax Vaccine Linked to Michigan Death (2pgs)
Article on Michigan Death Linked to Anthrax (2pgs)
Article on Pentagon Probing Possible Anthrax Vaccine Death (2pgs)
Article on Suspension of Anthrax Program Urged (3pgs)
Article on House Panel Criticizes Anthrax Plan (3pgs)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USMC              None
         Inactive: USMCR(J)                980414 - 980427  COG

 Period of Service Under Review :
Date of Enlistment: 980428               Date of Discharge: 990709

 Length of Service (years, months, days):

         Active: 01 02 12
         Inactive: None

 Age at Entry: 23                          Years Contracted: 4

Education Level: 16                        AFQT: 72

 Highest Rank: PFC

 Final Enlisted Performance Evaluation Averages (number of marks):

 Proficiency: 4.5 (2)                       Conduct: 4.2 (2)

 Military Decorations: None

 Unit/Campaign/Service Awards: Marksman Rifle Badge

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN Par. 6210.6.

 Chronological Listing of Significant Service Events :

990424:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 92: Failed to obey a lawful order issued by Major W.P. B____ to receive his anthrax vaccination on or about 990219.
         Finding: to Charge I and the specification thereunder, guilty.
         Sentence: Forfeiture of $639.00 pay per month, reduced to E-1, confinement for 30 days.
         CA action 990505: Confinement for 30 days reduced to 15 days with the rest of the sentence approved and ordered executed.

990527:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
990603:          Applicant advised of his rights and having elected 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. Have included written statement in rebuttal to this proposed separation.

990608:  Counseled for deficiencies in performance and conduct. [Refusal to receive anthrax vaccination. Specifically, your refusal to receive the anthrax vaccination, which resulted in your summary court-martial on 990424]. Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990615:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. The factual basis for this recommendation was PVT D____ Summary Court-Martial for refusal to receive the Anthrax vaccination.

990621:  SJA review determined the case sufficient in law and fact [Extracted from CO's message dtd 990615].

990622:  GCMCA [Commander, 1 st Marine Division] directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990709 under other than honorable conditions for misconduct due to the 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).

 The applicant states his discharge is inequitable because of the lack of long term studies on the Anthrax vaccine. This assertion has no bearing on the fact of his refusal to obey a lawful order and subsequent conviction at a trial by Summary Court Martial for the above offense. On 990407 the applicant waived his right to an Administrative Discharge board and certified his understanding that his discharge would be under other than honorable conditions. The discharge was proper and equitable. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.

Pertinent Regulation/Law (at time of discharge)

 A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until present).

B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92, failure to obey a lawful order.
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 “ afls10.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      


Similar Decisions

  • USMC | DRB | 2002_Marine | MD02-00304

    Original file (MD02-00304.rtf) Auto-classification: Denied

    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. PART I - APPLICANT’S ISSUES AND DOCUMENTATION Documentation Only the service and medical records were reviewed, as the applicant did not provide additional documentation for the Board to consider.

  • NAVY | DRB | 2001_Navy | ND01-00118

    Original file (ND01-00118.rtf) Auto-classification: Denied

    ND01-00118 Applicant’s Request The application for discharge review, received 001101, requested that the characterization of service on the discharge be changed to honorable. PART I - APPLICANT’S ISSUES AND DOCUMENTATION 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...

  • NAVY | DRB | 2002_Navy | ND02-01188

    Original file (ND02-01188.rtf) Auto-classification: Denied

    ND02-01188 Applicant’s Request The application for discharge review, received 020820, requested that the characterization of service on the discharge be changed to honorable. (See Document 21) 3) In 1996, Michigan Biologic Products Institute (MBPI) filed an IND application to the FDA showing a designation for'inhalation anthrax', changing the 'route of administration', and changing the 'vaccine schedule'. 312.3 1996 IND (Investigation New Drug) application 1998 and 1999 IND application...

  • NAVY | DRB | 2001_Navy | ND01-00373

    Original file (ND01-00373.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION Until there is an official change to the current anthrax vaccination policy, the Board cannot grant the applicant relief concerning his issues. 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...

  • NAVY | DRB | 1999_Navy | ND99-01219

    Original file (ND99-01219.rtf) Auto-classification: Denied

    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. 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...

  • USMC | DRB | 2001_Marine | MD01-00624

    Original file (MD01-00624.rtf) Auto-classification: Denied

    MD01-00624 Applicant’s Request The application for discharge review, received 010404, requested that the characterization of service on the discharge be changed to honorable. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT-MARTIAL, authority: MARCORSEPMAN Par. The applicant introduced no decisional issues for consideration by the Board.

  • NAVY | DRB | 2003_Navy | ND03-00434

    Original file (ND03-00434.rtf) Auto-classification: Denied

    My decision to refuse the anthrax vaccine was not one that I took lightly. 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 (C and D).The issues raised regarding the legality and safety of the Department of Defenses’ (DOD) Anthrax Vaccination program are beyond the purview of the NDRB to address. As this time, the Applicant has not provided any documentation for the Board...

  • NAVY | DRB | 2003_Navy | ND03-00327

    Original file (ND03-00327.rtf) Auto-classification: Denied

    000124: Memorandum for the Record (Applicant directed to report to Naval Station Rota immunization clinic to begin the Anthrax vaccination series).Retention Warning: Advised of deficiency (On or about 0800, 000125 you failed to report to the Naval Station, Rota Hospital to begin the required Anthrax Vaccination program as ordered by CTRCS P_ R_ in accordance with DoD and Navy policy. (On or about 01300, 000411 you were ordered to begin required Anthrax Vaccination program at the Naval...

  • NAVY | DRB | 2003_Navy | ND03-00436

    Original file (ND03-00436.rtf) Auto-classification: Denied

    ND03-00436 Applicant’s Request The application for discharge review was received on 20030122. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review.

  • NAVY | DRB | 2002_Navy | ND02-00541

    Original file (ND02-00541.rtf) Auto-classification: Denied

    ND02-00541 Applicant’s Request The application for discharge review, received 020321, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to honorable. Documentation In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:Copy of DD Form 214 Statement from Applicant, dated March 7, 2002 PART II - SUMMARY OF SERVICE Prior Service (component, dates of...