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NAVY | DRB | 2006_Navy | ND0600267
Original file (ND0600267.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-CTISN, USN
Docket No. ND06-00267

Applicant’s Request
The application for discharge review was received on 20051122 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable . The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061012 . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the discharge and the reason for discharge shall change to: HONORABLE/SECRETARIAL AUTHORITY, authority: MILPERSMAN 1910-164, Separation Code “JFF. ”



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“ MY DISCHARGE CHARACTERIZATION WAS AWARDED IN RESPONSE TO THE SOLE CHARGE OF REFUSING TO OBEY A LAWFUL ORDER BY RECEIVING THE ANTHRAX VACCINE. U. S. DISTRICT JUDGE E _ S _, HAS RULED THAT THE VACCINE’S MANDATORY ADMINISTRATION IS “ILLEGAL”, STATING FURTHER THAT PUNISHMENTS FOR ITS REFUSAL SHOULD BE REVIEWED. THE ORDER I REFUSED WAS RULED NOT TO HAVE BEEN LAWFUL. ”
Applicant’s Remarks: (Taken from the DD Form 293 to the Board.) :

“ THE FACTS IN THIS CASE ARE AS INDISPUTABLE AS IS POSSIBLE. THE VACCINE FAILED TO MEET THE FDA’S OWN CRITERIA. A DISTRICT JUDGE RULED THAT THE VACCINE’S MANDATORY ADINISTRATION WAS ILLEGAL. THE ORDER TO RECEIVE THE VACCINATION WAS UNLAWFUL. I AM AWARE THAT THE DEPARTMENT OF DEFENSE HAS SINCE CHANGED THE INDICATIONS OF THE VACCINE TO CIRCUMVENT THE ISSUE; THIS DOES NOT MITIGATE THE ILLEGALITY OF THE ORDER AT THE TIME IT WAS ISSUED. I AM NETHER A TROUBLE MAKER NOR A CRUSADE, I ONLY WISH FOR MY DISCHARGE TO REFLECT THE HONORABLE NATURE OF MY SERVICE. ”

 Documentation
In addition to the service and medical records , the following additional documentation, submitted by the Applicant, was considered:
Washington Post Article from Washingtonpost.com, “U. S. Barred From Forcing Troops To Get Anthrax Shots” (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Academy: USAF             199406xx – 199502xx               HON
          Inactive: USNR (DEP)     19950811 - 1 9951205       COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 19951206              Date of Discharge: 20000322

Length of Service (years, months, days):

          Active: 04 03 17
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

Age at Entry: 1 9

Years Contracted: 4 ( 1 7 -month extension)

Education Level: 12 + college                                AFQT: 99

Highest Rate: CTI3

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                           Behavior: NA*                      OTA: NA*
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): First Good Conduct Medal, National Defense Service Medal, Navy Unit Commendation, Overseas Service Ribbon

* Not Available


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

GENERAL (UNDER HONORABLE CONDITIONS), Misconduct - commission of a serious offense, authority: MILPERSMAN, Article 1910-142.
Chronological Listing of Significant Service Events :

990726:  Memorandum from CTRCS (AW/SS) P_ L. R_, N31C, dated 990723 .
          Subj: Commencement of Anthrax Vaccination
         Applicant refuse to sign acknowledgement of direct order .

 991105:  Retention Warning: Advised of deficiency (On or about 1600, 990728 you failed to report to the Naval Station, Rota Hospital to begin the required Anthrax vaccination program as ordered by CTRCS PECRO Roman in accordance with DOD and Navy policy. This order is a requirement for all assigned personnel in a Direct Support Operations billet. Your actions are in Violation of the Uniform Code of Military Justice, 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.
991122:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
          Specification: In that CT13 D_ R. H_ (Applicant), U.S. Naval Security Group Activity Rota, Spain, on active duty, having knowledge of a lawful order issued by LT J_ M. P_ to begin the Anthrax Vaccination Immunization in a six shot series, an order which it was his duty to obey, did at U. S. Naval Security Group Activity Rota, Spain, on or about 0800 hours, 991109 , fail to obey the same by refusing to take the required vaccination.
          Award: Forfeiture of $613.00 pay per month for 1 month, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
991210:  Letter from Commanding Officer, Naval Security Group Activity, Rota, Spain, dated 991210.
         Subj: Punitive Letter of Reprimand
000112:  Memorandum from CDR T_ L. H_, Operations Department Head ordering the Applicant to begin Anthrax Vaccination series. Disciplinary and discharge warning given. Applicant refuse d to sign acknowledgement of order.


000121:  Administrative Counseling/Warning: “ On or about 0800, 000118 you failed to begin the required Anthrax Vaccination program at the Naval Station, Rota Hospital as ordered by Commander H_, Naval Security Group Activity Operations Officer in accordance with applicable DOD and Navy policy. This order is a requirement for all assigned personnel in a Direct Support Operation billet. Your actions are in violation of the Uniform Code of Military Justice, Article 92 (failure to obey order or regulation) and you are subject to disciplinary action and/or administrative separation. ”

000125 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of commission of a serious offense – refusal to take Anthrax Vaccinations.

000125 :  Applicant advised of rights and having elected not to consult with counsel , e lected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation .
000207 :  Commanding Officer, U. S. Naval Security Group Activity, Rota Spain, recommended to the Commander, Navy Personnel Command (NPC-83), that the Applicant will be discharge d with a general (under honorable conditions) by reason of commission of a serious offense refusal to take Anthrax Vaccination. Commanding Officer’s comments : “ CTISN H_ (Applicant) was ordered and administratively warned on 23 July 1999 and 5 November 1999 to begin required Anthrax Vaccination Program in accordance with DOD and Navy policy. CTISN H_ (Applicant) made no attempt to follow this order and was sent to Non-Judicial Punishment on 22 November 1999. CTISN H_ (Applicant) was ordered and administratively warned again on 12 January 2000 and 21 January 2000 to begin required Anthrax Vaccination and did not comply with this order. He is being separated based on refusal to take Anthrax Vaccination. CTISN H_ (Applicant) has not objected to this separation and will be separated from the Naval service with a General discharge (under honorable conditions) on or about 28 February 2000. ”

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20000322 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of gener al (under honorable conditions) . After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper but not equitable (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

The Applicant contends that his discharge ( based soley upon his refusal to be injected with the anthrax vaccine ) was inequitable in light of a subsequent district court ruling that the military’s mandatory inoculation of service members was illegal. Under applicable regulations, a discharge shall be deemed equitable unless it is determined that policies and procedures under which the Applicant was discharged differ in material respects from policies and procedures currently applicable on a service-wide basis provided that the current policies and procedures represent a substantial enhancement of rights afforded to the Applicant and there is substantial doubt that the Applicant would have received the same discharge if relevant current policies and procedures had been available to the Applicant at the time of the discharge proceedings. The Applicant was discharged on 20030 0322 for misconduct due to commission of a serious offense -- the serious offense being violation of an order to subject himself to Antrax inoculation. In the years between the Applicant's discharge and his application to this Board, the United States District Court for the District of Columbia has issued an injunction prohibiting the Department of Defense's use of the Anthrax vaccine on the basis that the vaccine is unapproved for its intended use or an investigational new drug within the meaning of applicable statutes. Accordingly, the Court held that the involuntary anthrax vaccination program, as applied to all persons, is rendered illegal absent informed consent or a presidential waiver. Subsequent to that ruling, the Court modified its order and permitted the voluntary administration of the anthrax vaccination pursuant to the terms of a lawful emergency use authorization under the Federal Food, Drug, and Cosmetic Act.

The Board concluded unanimously that the Applicant's case falls squarely within the above equity provision. Current policies and procedures have reduced the Department of Defense Anthrax vaccination program to voluntary status. A Sailor may rightfully refuse the vaccine without fear of action under the UCMJ or administrative discharge. Such policies represent a substantial enhancement of the Applicant's rights and there is substantial doubt as to whether the Applicant would have been discharged for his conduct given the current voluntary status of the vaccination. As such, the elements of the above test are satisfied as both to characterization and narrative reason for separation. The Board voted unanimously to change the discharge to Honorable/Secretarial Authority. Relief granted.
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. 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 an other lawful order.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

 E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .


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 “ http://Boards.law.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:

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

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