Troops who refused to take anthrax shots in legal limbo
Military court may look to decision in civilian case
By Deborah Funk, Times staff writer
Ocean T. Rose worked as a firefighter in the Marine Corps until he was court-martialed in 2001 and sentenced to a bad conduct discharge for refusing anthrax vaccination. But he’s technically still in the Marines while he appeals his conviction — and thus can’t get a civilian firefighting job.
“Since I’m still an active-duty member, I can’t be hired by any city, state or federal fire departments,” Rose, 25, said in an interview, adding that one local fire department told him: “We can’t touch you.”
As U.S. troops prepare to decide whether they will voluntarily accept an anthrax shot, Rose is one of a number of service members who were court-martialed for refusing the shots under the old mandatory program and whose cases are still in limbo.
The total number is unclear, but the cases of about a half-dozen Marines and sailors are at the Navy-Marine Corps Court of Criminal Appeals awaiting a final ruling. And at least six more cases, including one Army case, are on appeal to the military’s highest court, the Court of Appeals for the Armed Forces.
These service members are on appellate leave while their cases wind their way through the appeals process. They technically are on active duty but are not paid and do not perform military duties, and their final discharges are pending.
Officially, the troops were court-martialed for disobeying a lawful order. Ultimately, the final disposition of their cases may rest on whether that order was, in fact, lawful — the very issue at the heart of the case now in federal court that led to the shutdown of the mandatory anthrax vaccine program last fall.
Six service members and civilian defense employees successfully sued the government to stop the mandatory anthrax shots when the judge ruled that the vaccine was not licensed to protect against inhalation anthrax, the type the Defense Department said is a germ warfare threat.
The Defense Department has appealed that civil case to the U.S. Court of Appeals for the District of Columbia in an effort to reinstate the mandatory vaccination program.
The Court of Appeals for the Armed Forces is considering whether to wait for the outcome of that civilian case before hearing an appeal by a soldier who was convicted of disobeying an order to submit to anthrax shots.
“It does seem to me that the dust has got to settle in the civilian litigation before the military courts can know what to do,” said military law expert Eugene Fidell, president of the National Institute of Military Justice. “It doesn’t make a lot of sense to have the same underlying issue litigated in two different court systems.”
The Navy-Marine Corps Court of Criminal Appeals recently upheld that the order to take anthrax shots was legal because the 1998 instruction from the secretary of the Navy that was in effect at the time said the vaccine was approved by the Food and Drug Administration and did not require consent to be administered.
Rose’s case is among those that have recently been appealed to the Court of Appeals for the Armed Forces in hopes of overturning his conviction.
Although Rose, who lives near Atlanta, receives health care benefits under Tricare, his appellate leave status makes him unattractive to some employers because companies don’t want to invest the resources in someone who may be recalled to put on a uniform, he said.
“As far as getting a job, a lot of people look at it in a negative light,” Rose said.
He works for a private company selling office supplies, but the training for that job is not as costly to an employer as training for a fire department job would be.
“I’m not making a whole lot of money — enough to get by,” he said.
Rose’s saga has dragged on for more than four years.
He joined the Marine Corps in January 1999. While based at Marine Corps Air Station Miramar, Calif., he received two anthrax shots in 2000, which he said were given to him nearly a month apart instead of two weeks as required by the vaccine label.
He experienced large lumps on his arm after the first two shots, along with flu-like symptoms and an irregular electrocardiogram. Moreover, research he did on his own convinced him the military was not following the shot course required by the vaccine’s label and that the vaccine was not licensed to protect against inhalation anthrax.
He refused to take his third shot and, after declining non-judicial punishment, was convicted at court-martial in January 2001 for disobeying a direct order. A lance corporal at the time, he was reduced to the paygrade of E-1, fined all pay at lance corporal rank and was to receive a bad-conduct discharge, which is still pending.
Rose said his refusal of anthrax vaccination was the only thing he’d ever done to land him in trouble in the Marine Corps.
“I want this to be dismissed,” he said. “I want my honorable discharge.”
By Deborah Funk, Times staff writer
Ocean T. Rose worked as a firefighter in the Marine Corps until he was court-martialed in 2001 and sentenced to a bad conduct discharge for refusing anthrax vaccination. But he’s technically still in the Marines while he appeals his conviction — and thus can’t get a civilian firefighting job.
“Since I’m still an active-duty member, I can’t be hired by any city, state or federal fire departments,” Rose, 25, said in an interview, adding that one local fire department told him: “We can’t touch you.”
As U.S. troops prepare to decide whether they will voluntarily accept an anthrax shot, Rose is one of a number of service members who were court-martialed for refusing the shots under the old mandatory program and whose cases are still in limbo.
The total number is unclear, but the cases of about a half-dozen Marines and sailors are at the Navy-Marine Corps Court of Criminal Appeals awaiting a final ruling. And at least six more cases, including one Army case, are on appeal to the military’s highest court, the Court of Appeals for the Armed Forces.
These service members are on appellate leave while their cases wind their way through the appeals process. They technically are on active duty but are not paid and do not perform military duties, and their final discharges are pending.
Officially, the troops were court-martialed for disobeying a lawful order. Ultimately, the final disposition of their cases may rest on whether that order was, in fact, lawful — the very issue at the heart of the case now in federal court that led to the shutdown of the mandatory anthrax vaccine program last fall.
Six service members and civilian defense employees successfully sued the government to stop the mandatory anthrax shots when the judge ruled that the vaccine was not licensed to protect against inhalation anthrax, the type the Defense Department said is a germ warfare threat.
The Defense Department has appealed that civil case to the U.S. Court of Appeals for the District of Columbia in an effort to reinstate the mandatory vaccination program.
The Court of Appeals for the Armed Forces is considering whether to wait for the outcome of that civilian case before hearing an appeal by a soldier who was convicted of disobeying an order to submit to anthrax shots.
“It does seem to me that the dust has got to settle in the civilian litigation before the military courts can know what to do,” said military law expert Eugene Fidell, president of the National Institute of Military Justice. “It doesn’t make a lot of sense to have the same underlying issue litigated in two different court systems.”
The Navy-Marine Corps Court of Criminal Appeals recently upheld that the order to take anthrax shots was legal because the 1998 instruction from the secretary of the Navy that was in effect at the time said the vaccine was approved by the Food and Drug Administration and did not require consent to be administered.
Rose’s case is among those that have recently been appealed to the Court of Appeals for the Armed Forces in hopes of overturning his conviction.
Although Rose, who lives near Atlanta, receives health care benefits under Tricare, his appellate leave status makes him unattractive to some employers because companies don’t want to invest the resources in someone who may be recalled to put on a uniform, he said.
“As far as getting a job, a lot of people look at it in a negative light,” Rose said.
He works for a private company selling office supplies, but the training for that job is not as costly to an employer as training for a fire department job would be.
“I’m not making a whole lot of money — enough to get by,” he said.
Rose’s saga has dragged on for more than four years.
He joined the Marine Corps in January 1999. While based at Marine Corps Air Station Miramar, Calif., he received two anthrax shots in 2000, which he said were given to him nearly a month apart instead of two weeks as required by the vaccine label.
He experienced large lumps on his arm after the first two shots, along with flu-like symptoms and an irregular electrocardiogram. Moreover, research he did on his own convinced him the military was not following the shot course required by the vaccine’s label and that the vaccine was not licensed to protect against inhalation anthrax.
He refused to take his third shot and, after declining non-judicial punishment, was convicted at court-martial in January 2001 for disobeying a direct order. A lance corporal at the time, he was reduced to the paygrade of E-1, fined all pay at lance corporal rank and was to receive a bad-conduct discharge, which is still pending.
Rose said his refusal of anthrax vaccination was the only thing he’d ever done to land him in trouble in the Marine Corps.
“I want this to be dismissed,” he said. “I want my honorable discharge.”
