Search Decisions

Decision Text

USMC | DRB | 2008_Marine | MD0800317
Original file (MD0800317.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20071114
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

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

Summary of Service

Prior Service:
 Inactive: USMCR (DEP)    19950810 - 19960802 ELS
 Inactive: USMCR (DEP)     199 80120 - 19980326              Active:         
Period of Service Under Review:
 Date of Enlistment: 19980327               Period of enlistment : Years Months             Date of Discharge: 20000210
Length of Service : Yrs Mths 14 D ys      Education Level:         Age at Enlistment:       AFQT: 57
MOS: 3533 Highest Rank:                           Fitness reports:
Proficiency/Conduct marks (# of occasions):      ( )/ ( )
 Awards and Decorations ( per DD 214): Rifle

Periods of UA / CONF :

S CMs :            
         19990803 : Art(s) 92 . Sentence - , ,      


Types of Documents Submitted

 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 Representat ion :              From Member of Congress:
Other Documentation (Describe)



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

Applicant’s Issues

 1. Change in Anthrax policy/option to refuse

Decision

Date: 20 08 0306             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 was discharged on 20000210 with a general (under honorable conditions) for misconduct due to commission of a serious offense, which, if prosecuted under the UCMJ, could be punished by confinement of six months or more under references (a) and (b). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was inequitable (reference c).

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 a 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 20000210 for misconduct due to commission of a serious offense, which, if prosecuted under the UCMJ, could be pu ni shed by confinement of six months or more. Specifically, the Applicant refused a direct order to take the Anthrax vaccination. In the years between the Applicant’s discharge and his application to this Board, the Anthrax Vaccine Immunization Program (AVIP) is now voluntary and that personnel refusing vaccination will not be punished or processed for separation under reference (d).

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 Marine 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.


Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 until 31 August 2001).

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.

C . 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 .

D. MARADMIN 033/06 (Continuation of the Anthrax Vaccine Immunization Program), CMC Msg 230010zJan 06

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, provi ded 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 grante d 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.
Employmen t / 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 “PTSD . ” 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

Similar Decisions

  • NAVY | DRB | 2007_Navy | ND0701006

    Original file (ND0701006.rtf) Auto-classification: Denied

    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. 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. This...

  • NAVY | DRB | 2009_Navy | ND0902558

    Original file (ND0902558.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/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/To Representation:From/ToCongress member:Other Documentation: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL...

  • NAVY | DRB | 2005_Navy | ND0500318

    Original file (ND0500318.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION Issues, as stated Applicant’s issues, as stated on the application:“Applicant was given an administrative discharge for refusing to obey an illegal order to submit to the Anthrax Vaccination Implementation Program. “Equity Issue: Based on our review of evidentiary record and on behalf of this former member, we opine that while this Applicant’s characterization of service was proper and equitable at the time of his separation it is no longer just...

  • NAVY | DRB | 2013_Navy | ND1301783

    Original file (ND1301783.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...

  • USMC | DRB | 2005_Marine | MD0500632

    Original file (MD0500632.rtf) Auto-classification: Denied

    th Marine Aircraft Wing, Marine Forces Reserve, New Orleans, LA, directed the Applicant's discharge under other than honorable conditions by reason of separation in lieu of trial by court-martial.030916: Applicant discharged from United States Marine Corps Reserve with a characterization of service as under other than honorable conditions. Specifically, the Applicant refused a direct order to take the Anthrax vaccination. In the Applicant’s case the NDRB has no authority to provide an...

  • NAVY | DRB | 2006_Navy | ND0600267

    Original file (ND0600267.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. ” 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, elected to waive all rights except the...

  • USMC | DRB | 2009_Marine | MD0900741

    Original file (MD0900741.rtf) Auto-classification: Denied

    However, since his discharge was a direct result of his refusal to drill because of mandated Anthrax shots, an order which was later rescinded, the Board determined it would be appropriate to change his Narrative Reason to SECRETARIAL AUTHORITY.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, discharge process and evidence submitted by the Applicant, the Board found Therefore, the awarded characterization of...

  • NAVY | DRB | 2006_Navy | ND0600077

    Original file (ND0600077.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. Applicant incorporates by reference the copy of the District Court’s Order submitted as supporting documentation. 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

  • 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 | 2010_Navy | ND1001455

    Original file (ND1001455.rtf) Auto-classification: Denied

    By a vote of the Narrative Reason shall .Discussion The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and...