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NAVY | DRB | 2001_Navy | ND01-00118
Original file (ND01-00118.rtf) Auto-classification: Denied


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


ex-STGSN, USN
Docket No. 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. 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 010406. 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. I believe my discharge should be upgraded from General Under Honorable to Honorable for the following reasons with attached documentation. First and foremost my discharge was granted due to refusal to inject an Anthrax inoculation that was being carried within a new untested delivery agent into my body. The U.S. military is not allowed to forcefully inject nontested, non-FDA approved agents into their service mens bodies. This protective measure was bypassed or sidestepped by the U.S. Armed Forced by issuing a direct order requiring all service personnel to be inject within this inoculation. Prior to refusal I was a role model sailor with exceptional evaluation and troubleshooting skills, with multiple Letter of Accommodations and Appreciations issued (A few samples are enclosed within). After my refusal to receive the inoculation my evaluations we're drastically cut to prompt my discharge and they even had to lower my equipment troubleshooting to provide me with a 2.0 evaluation to be fit for discharge. During this time I refused the right the see outside legal while being placed in situations of duress and stress and I was provided with information from our shipboard legal officer and my discharge officer that under a "General" discharge I was still provided with all of my college benefits. Enclosed within are documentation stating both sides and an inconsistency in declaring whether or not I am eligible for my V.A. college benefits without a change of discharge. Also inclosed are letters from B__ F____ of the 50 th District of California, J____ W. C_____ a Pentagon Staff Writer and CMC E__ of USS. Vincennes. These explain the uncertainty and issues that are somewhat at hand in the Anthrax issue. Congress is presently reviewing these issues because of safety concerns and two bills are before Congress on this issue. (Being listed in B___ F___'s letter). With the uncertainty and gross neglect being taken by the US military for the health, welfare, and standards and safety of our service men on this issue. I do not believe I should be denied college benefits which I have paid for in time, blood, and finances because I chose to stand up and defend the Constitution of the United States and my personal health which I swore to do the day I placed my uniform upon my shoulders. Under these circumstances and the times of change and uncertainty which we strive through today I beseech the board to upgrade my discharge and right the wrongs which have been inflicted upon me.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copies of DD Form 214 (2)
Applicant's Letter
 Letters of Appreciation (2)
 Special Request/Authorization
Health and Welfare Check Request
 Montgomery G.I. Bill Letter from DVA (2)
 Letter from Congressman B___ F____
Newspaper article (Pentagon postpones anthrax inoculations)(3pgs)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):
         Active: USN               None
          Inactive: USNR (DEP)     950627 - 960616  COG
Period of Service Under Review :
Date of Enlistment: 960617               Date of Discharge: 000110

 Length of Service (years, months, days):

         Active: 03 06 10
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (24 months extension)
Education Level: 12                        AFQT: 84

 Highest Rate: STG3
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (4)    Behavior: 2.00 (4)                OTA: 2.64
Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, M14 Sharpshooter Badge

Days of Unauthorized Absence: None

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 :

990514:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation, to wit: Refusal to take Anthrax Vaccine.
         Award: Forfeiture of $626.40 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
990517:  Retention Warning: Advised of deficiency (Violation of the UCMJ Article 92, failure to obey order or regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990628:  Violation of the UCMJ. Article 92- Failure to obey order or regulation, to wit: refusal of second verbal order by the Commanding Officer to take Anthrax Vaccine. Awarded: Process for Administrative Separation. NJP not conducted.
         
991222:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense evidenced by CO's NJP dated 990514 for Violation of UCMJ Article 92 (Disobeying a Lawful Order by the Commanding Officer to take the Anthrax vaccine).
991222:          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.
991223:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by CO's NJP dated 990514 for Violation of UCMJ Article 92 (Disobeying a Lawful Order by the Commanding Officer to take the Anthrax vaccine). To date member continues to refuse to take the Anthrax vaccine shot. Commanding officer’s comments (verbatim):
         STSGN____(applicant) was awarded non-judicial punishment on 14 May 99 for violating a direct order to take the Anthrax Vaccine. On 28 June 1999, following the termination of his punishment period, I again ordered STSGN____(applicant) to take the Anthrax Vaccine and he again refused. I informed STSGN____(applicant) that he would be administratively separated. During the processing, STSGN____(applicant) used the Internet and other off-ship resources to spread misinformation and falsehoods about his case. My chain of command directed me not to separate him until completion of a COMNAVSURFPAC HOTLINE investigation, hence the delay in separation. The findings of the investigation cleared Vincennes of all allegations.
                  Since that investigation, STSGN____(applicant) has alienated himself from the crew and has continued to disobey orders to take the shot. Moreover, his demeanor towards senior Petty Officers and Commissioned Officers 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 onboard USS VINCENNES.
                  Overall, STSGN____(applicant) is an average performer. His continued refusal to take the Anthrax Vaccine constitutes a blatant disregard for military regulations. His mediocre performance as a sailor, combined with his disregard for military regulations and basic military courtesies demonstrate his inability to function as an effective member of the naval service. Accordingly, I have administratively separated him with a General (Under Honorable Conditions) characterization of service.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 000110 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, the Board sympathizes with the applicant’s situation and the circumstances surrounding the applicant’s general discharge. However, there has been no change, at this time, in policy by the Navy, or higher authority, concerning the anthrax vaccine. The applicant disobeyed, on more than one occasion, a direct order to take the anthrax vaccine. The Board has no choice but to deny relief based on current Navy regulations.

Pertinent Regulation/Law (at time of discharge)
A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, 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 92, for failure to obey order or regulation, 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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