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Legal fight puts Marine in limbo

The Atlanta Journal-Constitution

Walton High graduate Ocean Rose, 23, has gone to work for a New Jersey hazardous waste company while his bad conduct discharge is on appeal. For the last three years, Ocean Rose of Marietta has been trapped in the military version of purgatory.

In January 2001, the Walton High School graduate pleaded guilty to disobeying a superior officer. Busted to private, he was drummed out of the Marine Corps with a bad conduct discharge.

With his case on appeal since then, he technically remains a member of the Marine Corps even though he is not being paid and is not allowed to perform his duties as a firefighter and hazardous materials specialist.

Neither in nor out of the service, he finds his life and career in legal limbo.

"It's odd," Rose said recently at his parents' east Cobb home, "but maybe because it's been going on so long, it seems normal to me."

Rose, 23, is among hundreds of members of the armed forces who since 1998 have faced legal action for refusing to obey the same order: Submit to a series of anthrax inoculations.

The refusal of all of them stems from their concern about the safety and effectiveness of the shots. Yet their punishment has been far from uniform.

• Air Force Capt. John Buck, a physician from Pascagoula, Miss., stationed at Keesler Air Force Base, was convicted at court-martial in May 2001 for refusing to take the vaccine. He was denied promotion and fined $21,000 but given an honorable discharge.

• Joy Jama of Fairfax, Va., a former senior airman at Shaw Air Force Base, S.C., refused three times to take the anthrax shots. Instead of a court-martial, she was given what the military calls nonjudicial punishment, decided on by her commander. Eventually she received a general discharge under other than honorable conditions but was allowed to keep her top secret security clearance and now works for a defense contractor.

• James Muhammad of Washington, a former sergeant who wanted to make the Marine Corps his career, refused to take the anthrax vaccine last year. He pleaded guilty at a court-martial and was sent to the brig for 60 days, busted to private and given a bad conduct discharge.

• Kurt Hickman, an Ohio National Guard soldier, is facing a second military trial for refusing to take the vaccine. Found guilty in the first trial under Ohio's version of the Uniform Code of Military Justice, he was sentenced to 40 days in jail, ordered to repay a college loan from the state, and given a less-than-honorable discharge. Before Hickman went to jail, his unit was mobilized for duty in Iraq. Again he refused to take the vaccine, this time while on active duty, and a decision on another court-martial is pending.

Marines 'the worst'

Critics of the anthrax vaccine program complain that the punishments are not equitable across the services. They also say refusing to take the vaccine should not be a crime in the first place. Instead, they argue the order is illegal because the vaccine has not been proved safe or effective in humans.

"We don't know why there is such a disparity [in punishment] among the services, but the Marines seem to be the worst in the sense of being the harshest," said Mark Zaid, a Washington lawyer who has filed suit against the Pentagon on behalf of six anonymous vaccine refusers.

Pentagon officials contend the anthrax inoculations are necessary because the virus could be used by terrorists as a biological weapon. Those who resist the shots are endangering not only themselves but also others around them, these officials say.

Zaid, a defense lawyer in 10 trials involving the vaccine program, said military judges had not permitted the Pentagon's order to be challenged in any of the vaccine refuser cases. Neither have defense lawyers been able to question the safety of the vaccine or its possible harmful side effects.

"Military judges shot us down every time," Zaid said. "We never got to the merits of the argument."

Calling his defense "very limited" because of similar rulings, Rose said that "the court made it obvious anthrax [vaccine] was allowed, it was not against the law, and . . . it's safe."

Before deciding to refuse, Rose submitted to two of the shots in early 2000, shortly after arriving at Marine Corps Air Station Miramar in San Diego.

After the first shot, he experienced flulike symptoms and "a pretty good-sized lump in my arm." He had the same reaction to the second shot.

Then he went for a physical that included an electrocardiogram.

"The EKG indicated I was having a heart attack," Rose said. "I started to get worried because heart disease runs in my family. My father has had a heart attack, and my grandfather died of a heart attack."

He asked for a second test on a different machine. The results, he said, were the same.

Puzzled, Rose wondered how he could go in just a few months from being a healthy young Marine to someone with heart trouble. When Rose expressed concern that the aberrant heartbeat might have resulted from the anthrax shots, a Navy doctor replied that they were safer than flu shots.

"This wasn't adding up," said Rose, who began doing research on the vaccine. "I found things the military doesn't want you to know" about possible adverse effects and health risks for those who take the vaccine.

Critics of the vaccine have questioned the adequacy of its testing and expressed concern about possible links to cancer and birth defects.

The military insists the vaccine is safe. "Our position is the same position as the [Food and Drug Administration]: The vaccine is safe and effective," said Jim Turner, a Pentagon spokesman.

But the FDA did not make that ruling until last month.

For the previous 18 years, Zaid said, the vaccine had been considered an investigational drug, that is, one that is under study but is not yet permitted to be legally marketed and sold in the United States.

Injunction halted

The FDA's finding came in the midst of Zaid's suit against the government and just a week after a U.S. District Court judge in the District of Columbia issued an injunction stopping the Pentagon from ordering further anthrax inoculations because of his concerns about their safety.

Despite his misgivings about the timing of the FDA's ruling, Judge Emmet Sullivan lifted the injunction and the shots resumed.

Over the last three years, Zaid said, many vaccine refusers have been given nonjudicial punishment and a general discharge rather than court-martial.

The services differ on the quality of statistics they keep regarding vaccine refusers, despite a law requiring them to submit detailed annual reports to Congress.

Spokeswoman Valerie Burkes said 85 vaccine refusers in the Air Force had legal action taken against them since 2000. Only three were court-martialed.

Army spokeswoman Martha Rudd said the Army did not specifically track cases of vaccine refusers.

"We are aware of a few cases in the last several years, but the number is small," she said in an e-mail response to questions.

Burkes, also responding by e-mail, said no policy determined how commanders should deal with anthrax refusal cases or what punishment should be given.

"Each commander exercises his or her own best judgment, after reviewing all the facts, in determining how to appropriately handle a case in the best interests of justice," Burkes wrote.

The Navy judge advocate general's office, which handles Navy and Marine Corps cases, said it also did not track vaccine refuser cases.

Carolyn Alison, an office spokeswoman, said "fewer than 10" anthrax refusal cases were pending before the Navy-Marine Corps Court of Criminal Appeals, Rose's among them.

Rose decision perplexing

Rose's case has twice gone before the Naval Clemency and Parole Board, which reviews discharges for possible upgrading.

The first time, a recommendation that Rose be reinstated to active duty was denied. The second time, a recommendation that his discharge be upgraded also was denied, said Geoff Lyon, a Washington lawyer and retired Marine lieutenant colonel who was on the board.

Of 16 cases considered for upgrading when he was the board's president, Lyon said 12, including Rose's, were sent to the Department of the Navy with a recommendation for upgrade.

"His package was stronger than the other 12 we upgraded," said Lyon. But the upgrade was denied without explanation.

Rose is permitted to wear his uniform but chooses not to. He does not want to strip off the treasured lance corporal stripes he earned during the two years he served.

Rose has no discharge papers, since legally he is still a Marine. Without a discharge, many prospective employers are reluctant to hire him because he could be called back to active duty at any time.

If his bad conduct discharge is not overturned or upgraded, he will be unable to get a government job or be eligible for veterans benefits.

Until about six months ago, Rose made do with a series of low-paying jobs. He now works as a hazardous materials specialist for a New Jersey company.

Rose's lone hope is for the appeals court to side with him. But that could take years. Some appellate cases are more than 5 years old.

He said he has no regrets and still loves the Marine Corps.

"I'm comfortable with the decision I made," he said. "But I thought the punishment seemed severe. I was being compared to someone who disobeyed an order to protect my country, but all I did was refuse to take a shot."