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NAVY | DRB | 2007_Navy | ND0701006
Original file (ND0701006.rtf) Auto-classification: Denied

ex-CTR3, USN
Current Discharge and Applicant’s Request
Application Received: 20070717
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN (SERIOUS OFFENSE)

Applicant’s Request:     Characterization change to:
                           Narrative Reason change to:

Summary of Service

Prior Service:
 Inactive: USNR (DEP)     19930505 - 19930906     Active:          19930907 – 19970514 Honorable Discharge

 Period of Service Under Review:
 Date of Enlistment: 19970515      Period of enlistment : Years Extension  Date of Discharge: 20000512
Length of Service: Yrs Mths 28 D ys     Education Level:         Age at Enlistment:       AFQT: 89
Highest Rank/Rate: CTR2   Evaluation marks: Performance: 3.8 ( 5 )    Behavior: 3.4 ( 5 )         OTA: 3.52
Awards and Decorations (per DD 214): Pistol NEM (2) NAM AFOUA (3) (2)

Periods of UA/CONF:

NJPs:   
         20000216 : Art(s) 92 (Failure to obey an order).
Awarded - Susp - Appealed 20000222. Appeal denied 20000228.

 Retention Warnings: .
          20000123 : For failure to report to the Naval Station, Rota Spain Hospital to begin the required Anthrax Vaccination
program .
         20000413 : For failure to begin the required Anthrax Vaccination program .

Types of Documents Submitted/reviewed

 Related to Military Service:      DD 214:          Service and/or Medical Record:            Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education/Training:     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:           Community Service:                References:              
        
Additional Statements From Applicant:             From Representation:              From Member of Congress:
Other Documentation (Describe)

NDRB Documentary Review Conducted (date):        20031205
NDRB Documentary Review Docket Number:   ND03-00327
NDRB Documentary Review Findings:                 No change warranted.

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

Applicant’s Issues

 1. The Applicant contends his discharge was inequitable and was unlawful because it was based solely upon his refusal to be injected with the anthrax vaccine.
2. The Applicant is claiming in service equity based on his overall good service record.
3. The Applicant claims he has a strong post service record and is requesting an upgrade based on post service conduct.

Decision

Date: 2008 0627             Location: Washington D.C         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY .
Discussion

Issue 1 ( ): . The Applicant contends his discharge was inequitable and was unlawful because it was based solely upon his refusal to be injected with the anthrax vaccine. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. Under applicable regulations, a discharge shall be deemed equitable unless it is determined policies and procedures used during the discharge differ in material respects from policies and procedures currently applicable on a service-wide basis: provided the current policies and procedures represent a substantial enhancement of rights afforded to the Applicant and, there is substantial doubt the Applicant would have received the same discharge if current policies and procedures had been available to the Applicant at the time of the discharge.

The Applicant was discharged on 12 May 2000 for misconduct due to commission of a serious offense, violation of Article 92 of the Uniform Code of Military Justice for failing to carry out an order to receive a series of Anthrax inoculations. On 22 December 2003, United States District Court issued an injunction enjoining anthrax inoculation in the absence of informed consent or a Presidential waiver. The Court was persuaded the anthrax vaccine was an investigational drug being used for an unapproved purpose. On 27 October 2004 the injunction was modified by the addition of the following language: “This injunction, however, shall not preclude defendants from administering anthrax, on a voluntary basis pursuant to the terms of a lawful emergency use authorization”. Accordingly, the Court held the involuntary anthrax vaccination program, as applied to all persons, is rendered illegal absent informed consent or a Presidential waiver.

On 12 March 2007 the Chief of Naval Operations (CNO) issued guidance resuming the Mandatory Anthrax Vaccine Immunization Program for certain personnel unless exempted under applicable medical and administrative exemption policies. After reviewing personnel required to receive the mandatory Anthrax vaccine, it was noted the Applicant would not have been required to take the vaccine had he been still on active duty and assigned to the same unit prior to his discharge. Because the new anthrax guidance represents a change in policy since the Applicant’s period of service, the Board determined the Applicant’s discharge was inequitable in light of the DOD’s action in only mandating inoculations for certain personnel in designated areas and units. The Board determined relief was warranted.

Issue 2 ( ): . The Applicant is claiming in service equity based on his overall good service record. A review of the Applicant’s service record indicates the Applicant had only one adverse action in his record; the non-judicial punishment for refusal to submit to anthrax vaccination. Based on the U.S. District Court ruling of 27 October 2004, which issued an injunction prohibiting the Department of Defense from involuntarily requiring service members to be vaccinated, the Applicant deserves relief on the basis of his overall good service record. The Board determined relief warranted.

Issue 3 ( ): . The Applicant claims he has a strong post service record and is requesting an upgrade based on his post service accomplishments. Additionally, after consideration of the Applicant's substantial post service accomplishments to include receiving his bachelor ’ s degree, his work with Habitat for Humanity, and his most recent reenlistment and honorable discharge from the naval reserves, the Board determined relief was warranted based on post service conduct. The Board determined relief was warranted.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found the discharge was proper but inequitable based on current anthrax policies and regulations.

The Board voted 4 to 1 to change the discharge characterization to Honorable with the narrative reason changed to Secretarial Authority.

Dissenting Opinion

         In this case, there were several issues (both listed and inferred from the Applicant's testimony) the Applicant brought before the Board:

1. The order was unlawful at the time it was given. The Applicant made this claim and references a subsequent court decisions ( Doe v. Rumsfeld , D.D.C. Oct. 27, 2004) in support. This Court found the vaccination program to be unlawful and issued an injunction.
The minority disagrees the program was unlawful. “Military orders are presumed to be lawful and are disobeyed at the subordinate’s peril.” United States v Schwartz , 61 M.J. 567, 569 (N.M.Ct.Crim.App 2005) affirmed 64 M.J. 199 (C.A.A.F. 2006). Thus, the military can order service members to receive vaccinations, even over religious objections. Id. In fact, even U.S. citizens do not have the constitutional right to refuse inoculation. J acobson v. Massachusetts , 197 U.S. 11, 31-32 (1905). Recently, the highest court in the Armed Forces affirmed the conviction of Marine Lance Corporal Schwartz because he violated a lawful order by refusing to receive his anthrax vaccine. See Schwartz , 61 M.J. at 567.
In Schwartz , Lance Corporal Schwartz alleged the order to receive the vaccine violated his constitutional right to refuse unwanted medical treatment and he could not be inoculated with what he described as an investigational new drug without his consent. Id. at 570. The court dismissed this argument, finding the order to receive the anthrax shot was lawful because it had a valid military purpose of retaining military readiness in the face of a biological attack. Id. Regarding the issue of whether the Anthrax inoculation was merely experimental, the court noted “[i]f we may attach any value whatever to medical knowledge which is common to all civilized peoples, we must conclude on the basis of common knowledge that an order to take immunization shots is legal and necessary in order to protect the health and welfare of the military community and that failure to take such shots would represent a substantial threat to public health and safety in the military.” Id. (quoting United States v. Chadwell , 36 C.M.R. 741, 749-50 (N.B.R. 1965).
While in service, the Applicant was given an order he should have presumed to be lawful. By choosing to disobey this order, he detracted from the good order and discipline of the United States Navy.

 2. The Board is compelled to rule similarly on cases with similar circumstances. The Applicant pulled a case from the NDRB Electronic Reading Room with circumstances similar to his own in which the NDRB chose to upgrade the discharge. The minority does not find this to be a persuasive argument as each case is determined individually on its own merits.

3. Post Service Conduct. The Applicant brought evidence of several post-service accomplishments to the Board to include evidence of a successful enlistment with the Naval Reserve, completion of a Bachelor of Science program, and gainful employment with several airlines. While these are significant accomplishments, they are not sufficient in the minority's opinion to mitigate his willful disobedience of a lawful order.

4. Propriety. The applicant contends his discharge was improper because the specific circumstances of the offense did not warrant separation. The minority determined the Applicant willfully disobeyed a lawful order which is punishable by a punitive discharge and imprisonment if adjudged ad a Special or General Court Martial. The minority determined the discharge was proper.

5. Equity. The applicant feels his discharge was inequitable in light of his Record of Service. While he may feel this was the case, the minority noted the Applicant's discharge was marred by his willful disobedience of a lawful order. Such disobedience is contrary to the good order and discipline of the United States Navy and warrants a General (under honorable conditions) characterization of discharge.

6. Equity. While not brought forward as an issue by the Applicant, the Board can consider equity based on regulation currently in place. In this case, the minority believes this majority was swayed primarily by this issue. The Anthrax vaccination program has been surrounded by controversy since its inception, and the requirements for individuals to participate in the program have changed several times. While it is true the Applicant would likely not be required to take the vaccination series if he were in the Navy today, the minority notes he was required to take it at the time of his discharge, and at that time, it was a lawful requirement. Servicemen and women can not pick and choose which orders they choose to follow, and when they do, they break down the discipline and morale of a command. The minority believes this issue is not applicable because even by today's standards, a service member can be ordered to receive the Anthrax series of vaccinations. The minority finds the discharge was equitable.
         In summary, the minority found no argument which mitigated the Applicant's decision to willfully disobey a lawful order and found the discharge to be proper and equitable.


Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 28, effective 30 March 2000 until 29 August 2000,
Article 1910-142, Separation By Reason Of Misconduct - Commission of a Serious Offense.
B. 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 V, Para 502, Propriety and Para 503, Equity .

C. Chief of Naval Operations message of 121652ZMAR07, Resumption of Mandatory Anthrax Vaccine Immunization Program.

C. 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.

ADDENDUM: Information for the Applicant

 Complaint Procedures : 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employment/Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: 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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