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NAVY | DRB | 2003_Navy | ND03-00434
Original file (ND03-00434.rtf) Auto-classification: Denied


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

ex-CTRSN(SW), USN
Docket No. ND03-00434

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. The Applicant designated the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031229. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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, as stated

 Applicant’s issues, as stated on the application:

 1. “My discharge was inequitable because my performance as a sailor was outstanding until I was forced to refuse the anthrax vaccine because of personal convictions. Also I have already paid the consequences for my decision. My last three months in the Navy were far from pleasant. I was demoted, given half pay, was required to do extra duty for two hours per day (which included mustering with all other restricted personnel), and eventually I was separated from the service. After my first non judicial punishment (NIP) I became severely depressed, and my depression only got worse as time went on. In the end it was difficult just to get out of my rack. As a result of this I missed too many restricted musters and was put in the brig for three days on bread and water.
My decision to refuse the anthrax vaccine was not one that I took lightly. My mother was working on her Masters degree at the time and was also employed at a University, and as such had access to many accurate and outstanding databases. Because we were in the middle of a deployment it would have been nearly impossible to acquire research data myself, so my mother sent me all the information she could. After reading hundreds of pages on the subject I decided that I could not willingly submit to taking the vaccine. There were three other people on my ship (the USS Wasp) that refused, but at the time of my refusal I felt very alone. I know now that there are a lot of people who don’t agree with the anthrax vaccination immunization program (AVIP).
I could go on and on about the reasons why I refused the vaccine, but to keep things brief and to the point I will state the biggest factors in my decision: 1)the presence of squalene - which is not approved for use in humans 2)heinous FDA violations by the producers of the vaccine Bioport 3)the fact that the vaccine had not (and has not since) been eliminated as a contributor to Gulf War Syndrome 4)the militarys not so distant history of using its service members as guinea pigs. 5)reports of serious chronic illnesses like Guillain Bane Syndrome (a muscle weakness disease), chronic joint diseases, or had miscarriages and infertility after getting the anthrax vaccine.
Since my refusal the debate continues. In fact, even with the recent bioterrorism issues in the United States the New York City postal union officials have advised mail workers against taking the Department of Defense’s vaccine for anthrax.
In closing I would like to reiterate my accomplishment as a sailor:
 •        My evaluations consistently show that up until my NW for refusing the anthrax vaccine I was an excellent sailor
•        I worked diligently and tirelessly at being a good sailor, to constantly increase knowledge of my rate, and to lead the way in my division in training and personnel qualification standards
•        I was one of the first junior personnel in my division to earn my qualification as an Enlisted Surface Warfare Specialist
•        Before going to NIP I had 90% of my requirements for Enlisted Air Warfare Specialist completed
 •        I had planned on re-enlisting, and had completed 90% of my first enlistment
•        I received the Armed Forces Service Medal, and the Good Conduct Award

Thank you for your time and patience. If you have questions regarding my statement, please feel free to contact me.

S_ B_
(Telephone Number deleted)
Address deleted)”

Additional issues submitted by Applicant’s representative (American Legion):

“2. (Equity Issue) This former member further requests 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 this application.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Evaluation Report and Counseling Records, dated July 22, 1998, February 25, 1999, June 22, 1999, March 16, 2000, and July 22, 2000
Good Conduct Award, dated February 2, 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     960227 - 970203  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 970204               Date of Discharge: 000808

 Length of Service (years, months, days):

         Active: 03 06 05
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 84

 Highest Rate: CTR3

 Final Enlisted Performance Evaluation Averages (number of marks):*

 Performance: 3.40 (5)    Behavior: 3.00 (5)                OTA: 3.24

 Military Decorations: None

 Unit/Campaign/Service Awards: NER, SSDR, GCM

 Days of Unauthorized Absence: None

*[Extracted from supporting documents furnished by the 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 :

000519:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order/regulation on 000518, to wit: refusing the Anthrax vaccination.
         Award: Forfeiture of $642 per month for 2 months, restriction and extra duty for 45 days, reduction to CTRSN. No indication of appeal in the record.
000616:  NJP for violation of UCMJ, Article 92 (4 specs): (1) Failure to obey a lawful order on 000606, to wit: refusing to take the Anthrax vaccination, Failure to obey a lawful written order issued by Security Officer to muster 30 minutes after reveille, 1230 hours, 1800 hours, and 2130 hours for 45 days: (2) Failed to muster on 0630, 000520, (3) Failed to muster on 1800, 000606, (4) Failed to muster on 0630, 000614.
         Award: Forfeiture of $642 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
000719:  NJP for violation of UCMJ, Article 92 (3 specs): Failure to obey a lawful written order issued by Security Officer to muster 30 minutes after reveille, 1230 hours, 1800 hours, and 2130 hours for 45 days (1) Failed to muster 1230, 000703, (2) Failed to muster 2130, 000707, (3) Failed to muster 2130, 000713.
         Award: Confinement on bread and water for 3 days. No indication of appeal in the record.
000727:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.
000727:  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.
000804:  Commanding Officer directed Applicant’s discharge general (under 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 20000808 with a general (under honorable conditions) for misconduct due to commission of a serious offense (A). The Board presumed regularity in the conduct of governmental affairs (B). 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).

Issue 1. 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. DOD has determined that personnel whose duties are essential to mission critical capabilities are vaccinated against anthrax, both for their personal protection and for success of the military mission. The NDRB has no authority to question this determination by DOD. In it’s review of cases, NDRB is required to adhere to the policies and regulations established by the Department of Defense in determining the propriety and equity of a discharge. In cases involving separation where the member refused the anthrax vaccination, NDRB review is limited to a determination as to whether the member’s case was procedurally correct, and whether his case received the same disposition as those similarly situated. In your case, the NDRB found that your case was processed in accordance with established procedure and that your discharge was equitable. In this regard, a characterization of service of general (under honorable conditions) was warranted since your record of service constituted a departure from that expected of a Sailor in the U.S. Navy. The record does not contain evidence that you were not responsible for your actions or should not be held accountable. The award of NJP was proper and equitable; and upgrade to honorable would be inappropriate. Relief is denied.
Issue 2. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle. As this time, the Applicant has not provided any documentation for the Board to consider. Therefore, no relief is appropriate.

 The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is recommended but not required.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 28, effective
30 Mar 00 until 29 Aug 00, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B. 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.

C. 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.

D. 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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