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Can troops who refused anthrax shots seek redress?

Time will tell whether military corrects records of troops who rejected orders

By William H. McMichael - bmcmichael@militarytimes.com

When a federal judge ruled in 2004 that the Pentagon’s mandatory anthrax vaccine inoculation program in effect at the time essentially was illegal, it may have opened the door for everyone who had been punished for refusing the shots to get their military records corrected.

That doesn’t appear to be the case quite yet, even though Judge Emmet Sullivan of the U.S. District Court for the District of Columbia reaffirmed his ruling in August in a written opinion on a technicality in the same case.

It is not known if the Defense Department has a stance on whether service members punished for refusing the shots can seek correction of their records; by press time, defense officials did not respond to a Military Times query submitted three days earlier. But the Pentagon continues to argue, according to that August brief, that its 1998-2004 mandatory anthrax vaccine inoculation program was “reasonable.”

The Pentagon also could not provide a precise number of service members who had refused the shots and been punished, or whether any who had been imprisoned are still in jail.

The Air Force said a total of 180 airmen had been punished from 1998 through Dec. 6, with a peak of 62 cases in 1999. Seven of the 180 cases were adjudicated at court-martial. Federal court records from 2000 state that two years after the program began, nearly 500 troops had refused the shots and more than 100 had been court-martialed.

Attorneys who specialize in military law encourage those who feel wronged to seek redress individually, but they also say it may be premature to expect the military to forgive, in broad fashion, what it considered to be serious violations of good order and discipline.

“I don’t think we’re at the point, from a policy perspective, where they would be willing to admit that everyone affected, from a disciplinary level, was wronged,” said Mark Zaid, a Washington attorney who helped represent a group of six former service members who refused to take the shots and filed the suit on which Sullivan ultimately ruled.

And, the attorneys say, military courts apparently do not concur with Sullivan’s ruling.

“The military courts, over and over, have proved themselves absolutely incapable of ruling on this” because it places them in the position of opposing Defense Department policy, said John Michels, a Chicago attorney and former Air Force lawyer who also helped represent the group of plaintiffs before Sullivan.

Michels pointed to a September 2006 decision by the U.S. Court of Appeals for the Armed Forces in the case of Spc. Andrew Kisala, who was court-martialed for disobeying a lawful order to take the anthrax shots in August 2000. The high court ruled that Kisala failed to prove the order was unlawful.

But “you can disobey an unlawful order,” Zaid said — and because Sullivan “ruled that the vaccine was experimental, it was unlawful to administer without consent.”

Lack of access to health records and documentation makes it impossible to estimate with any certainty the number of troops who have complained of adverse reactions without extrapolating from the spotty data publicly available.

According to the Centers for Disease Control and Prevention, and the Food and Drug Administration, between January 1990 and August 2000, 1,544 reports of adverse reactions were logged in their reporting system. During that time, nearly 1.9 million doses of vaccine were given to 463,000 people. Adverse reactions range from skin rashes, headaches and short-term memory loss to blackouts and hemorrhaging.

Defense officials acknowledge that like any vaccine, a reaction to the anthrax shots can occur in up to 35 percent of people, but they say these “typically resolve within 48 hours.” The Pentagon considers the vaccine “safe and effective.”

However, Sullivan found on behalf of the six unnamed plaintiffs in 2004 that the FDA had not properly certified the vaccine as effective protection against airborne anthrax spores, considered the primary threat to U.S. troops. In a December 2003 opinion issued with a preliminary injunction that temporarily halted the military’s mandatory program, Sullivan wrote: “The United States cannot demand members of the armed forces also serve as guinea pigs for experimental drugs.”

The Pentagon subsequently suspended its mandatory vaccine program and made it voluntary until February 2007, more than a year after the FDA affirmed its earlier finding that the vaccine was safe and effective against airborne anthrax. At that time, the shots again became required for all troops deploying for more than 15 days to the Middle East or South Korea.

Decisions such as in the Kisala case, Michels said, don’t generally bode well for troops seeking a reversal of their punishments.

The place to seek redress, said Eugene Fidell, a Washington attorney and military law expert, are each service’s Board for Correction of Military Records or Discharge Review Board.

There is a three-year time limit for filing a case before a records correction board, although that can be waived “in the interest of justice.” Discharge Review Boards allow 15 years for claims.

“We have tried it, and there have been some quiet successes,” Zaid said.

But Massachusetts attorney Dale Saran said he thinks the system is stacked against the troops.

“The board will generally solicit an opinion from a service’s judge advocate general” and be heavily influenced by the government stance, said Saran, who is trying to clear the record of Air Force Lt. Col. Tom Rempfer, one of the first officers to refuse the shots and fight through legal channels.

“My hope is that we can prevail in Tom’s case,” Saran said, “and that will become precedent for future records cases.”