RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00203
		INDEX CODE:  110.02

		COUNSEL:  NONE

		HEARING DESIRED: YES

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APPLICANT REQUESTS THAT:

		a. His general (under honorable conditions) discharge be upgraded to honorable.

		b. His officer performance report (OPR), for the period 24 January 1999 through 23 January 2000, be expunged.

		c. He receive back pay and longevity to include 24 unit training assemblies (UTA’s) and 48 flying training periods (FTP’s) annually for the last five years.

		d. He be reinstated into the Individual Ready Reserve (IRR).

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APPLICANT CONTENDS THAT:

On 19 September 1999, after speaking with his squadron commander regarding the Anthrax Vaccination Immunization Program (AVIP), he decided to separate from the Kansas Air National Guard (KSANG).  On 20 September 1999 he submitted his separation request.  His request was denied prior to him receiving an official order to take the anthrax vaccine.  He contends he was threatened with Article 15 action, a discharge review board (DRB) with under other than honorable conditions (UOTHC) discharge implications prior to actually refusing the order to take the vaccine.  Consequently, he believes he was coerced into resignation.  On 4 October 1999, he was given an official order to take the anthrax vaccine.  He refused to comply with the order as he felt the anthrax vaccination was “experimental” or “investigational” making the order unlawful.  Additionally, as the vaccination was considered “experimental” he cites a requirement that mandates informed consent of human subjects in Title 50 United States Code (U.S.C.), Section 1520a.  

On 15 October 1999, he received notification he was being involuntarily discharged for misconduct and was provided counsel.  With the threat of an UOTHC discharge by the DRB, and on advice of counsel, he decided to waive his right to a Board on the condition he receive an honorable discharge.  He signed his discharge papers with the assurance of his wing commander he would receive an honorable discharge.  He cites an earlier AFBCMR case wherein an ANG member voluntarily resigned but the Board found the evidence presented indicated he had been coerced into a resignation.  He contends his case is no different.

In support of his appeal, the applicant has provided copies of his initial resignation request, several documents wherein KSANG officers recommend he receive an honorable discharge, pertinent documents surrounding the legality of the anthrax vaccine, applicable documents exemplifying his Air Force career, and copies of relevant Air Force Times and Associated Press articles.

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant, a former member of the KSANG, submitted a request for separation on 20 September 1999.  His request was disapproved.  On 4 October 1999, a lawful order to comply with AVIP was issued and the applicant refused to comply.  He received a letter of reprimand as a result.  On 20 October 1999, applicant acknowledged receipt of a letter notifying him of his commander’s intent to involuntarily discharge him.  On 2 November 1999, a recommendation for discharge was forwarded to the KSANG State HQ.  On 15 February 2000, applicant submitted a personal letter of resignation in lieu of Discharge Review Board action (DRB) wherein he requested an honorable discharge.  On 16 February 2000, with a 184th Bomb Wing concurring endorsement, his resignation request was forwarded to KS Adjutant General for Air.  On 11 April 2000, he was issued a referral OPR.  His rebuttal to the referral OPR, dated 25 May 2000, stated he refused the order to participate in AVIP because he considered it an illegal order as the anthrax vaccine was considered “experimental.”  On 14 December 2000, the Secretary of the Air Force (SAF) accepted his resignation in lieu of an administrative DRB and he was subsequently discharged with withdrawal of federal recognition effective 6 January 2001.  At the time of discharge he was serving as a B1 Bomber pilot in the grade of major with over 13 years of active duty and ANG experience.  His characterization of service was listed as general (under honorable conditions) and his reenlistment eligibility was listed as “Ineligible.”

Since applicant’s discharge, several military members brought a civil action against the Department of Defense (DoD) for compelling military members to undergo anthrax inoculation without their consent.  They maintain the anthrax used in the vaccination is an experimental drug unlicensed for its present use and that the AVIP violates federal law (informed consent).  The court found the central question to be whether or not the anthrax vaccine was an “investigational” drug or a drug unapproved for its use against inhalation anthrax.  On 22 December 2003, after hearing arguments, and absent a ruling from the FDA, the judge enjoined DoD from further inoculating service members without their consent and in the absence of a presidential waiver ordering such inoculation in the interest of national security.  On 5 January 2004, the FDA published a final rule regarding the anthrax vaccine and stated the drug was safe and effective on all forms of anthrax.  On 7 January 2004, the judge lifted the injunction, allowing DoD to continue mandatory anthrax vaccinations.

On 27 October 2004, the judge vacated the FDA’s final rule and remanded it back to the FDA for reconsideration.  Additionally, the judge found that if and/or when the FDA properly classifies the vaccine as a safe and effective drug for its intended use, an injunction shall remain in effect prohibiting defendants’ use of the vaccine on the basis that the vaccine is either a drug unapproved for its intended use or an investigational new drug within the meaning of 10 U.S.C. Section 1107.  Accordingly, the court ordered the involuntary anthrax vaccination program, as applied to all persons, rendered illegal absent informed consent or a Presidential waiver.

On 23 December 2004, the government gave notice of appeal to the United States Court of Appeals for the District of Columbia Circuit regarding the court’s 27 October 2004 ruling.  No portion of the decision, which is final and binding on the parties, has been stayed pending the appeal.

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AIR FORCE EVALUATION:

ANG/DPPI recommends denial.  DPPI notes the applicant’s assertion that the injunction rendered all immunizations prior to the injunction illegal and unlawful.  DPPI states the applicant provided no evidence to support his assertion.  Applicant bases his comments on the fact that he was ordered to take the vaccination without his informed consent and that the FDA had not approved the drug as safe and effective for its intended purpose leading to a federal injunction declaring the order to vaccinate as unlawful or illegal.  Since the FDA has ruled that the anthrax vaccination is safe the injunction has been lifted.  Regarding the applicant’s claim that the injunction should have been retroactive, DPPI states the lifting of the injunction absent a statement indicating retroactivity does not indicate the injunction was legally retroactive by default.  DPPI states had the injunction been retroactive the injunction order would have included a specific statement addressing retroactivity.  

DPPI’s complete evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant notes most of his rebuttal will stem from the recent ruling by a federal judge on the illegality of AVIP.  He dismisses the advisory’s contention that his application was filed after the three-year time limit by stating his discharge was finalized on 6 March 2001, his DD Form 214, Application for Correction of Military Record, was dated 22 February 2004.  

Applicant notes the federal judge who issued the first injunction order has recently remanded the FDA’s final rule back to the FDA and has ordered a permanent injunction enjoining the DoD from ordering military personnel to participate in the AVIP without informed consent or a waiver by the President.  He notes this is the second time a federal judge has declared the anthrax vaccine to be “investigational” and used for unapproved purposes.  He acknowledges his commanders acted in good faith in 1999 when they ordered him to accept the vaccine.  However, because the licensing of the anthrax vaccine is now unlawful, it should be deemed to have been unlawful in 1999.  Consequently, by refusing to take the vaccination, he was disobeying an illegal order.  He defers to the new injunction order for most of his argument against the DPPI advisory and notes the ANG advisory was written prior to the current injunction.  Regarding his assertion his resignation was coerced, he states he was threatened with military disciplinary action prior to being ordered to take the vaccinations.  

The DPPI advisory contends the federal ruling cannot be retroactive absent a statement to that effect.  Applicant states the second ruling is retroactive, as the license for the anthrax vaccination is considered illegal now and using common sense and the Relation Back Doctrine, would have been considered illegal in 1999.

Applicant’s complete response, with attachments, is at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JA states the applicable law in this case does not compel the conclusion urged by the applicant.  The law is well settled that military orders are “clothed with an inference of lawfulness”, and “An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate.”  This issue of lawfulness was applicable to the 1999 vaccination order the applicant refused, and is buttressed by the variety of pre-injunction authorities that concluded the AVIP was legal.  Nevertheless, the applicant argues that, in light of the recent rulings in Doe v. Rumsfeld, and despite other case law supporting legality, AVIP must be considered illegal in 1999 and his refusal to obey the order to be vaccinated must be set aside.  He contends this result is compelled by “common sense” and the “Relation Back Doctrine” making the real question in this case to be whether or not Doe v. Rumsfeld should be given retroactive application in his case.

“Relation Back” is a legal principle, applied in certain circumstances, “that an act done today is considered to have been done at an earlier time.”  On the other hand, “retroactive” refers to whether a law “impose[s] a new duty, or attach[es] a new disability in respect to…transactions or considerations already past.”  With regard to retroactivity, the original opinion in Doe v. Rumsfeld granted only an injunction against further operation of the AVIP unless certain conditions were met.  The court did not discuss possible retroactive application of its conclusion that the AVIP was illegal on the grounds anthrax was considered an investigational new drug and a drug being used for an unapproved purpose, without informed consent or Presidential waiver.  The Supreme Court has applied a three-factor test in determining the extent to which a court’s decision should be given retroactive effect: (1) whether the decision established a new principle of law; (2) whether retroactive application would further or retard the operation of the new law; (3) whether retroactive application would produce substantial inequitable results.  

The Supreme Court has counseled caution when applying a court’s rule retroactively: “Retroactivity is properly treated as a threshold question, for, once a new rule is applied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated.”  The Supreme Court’s reluctance to endorse the theory of retroactive application, except for matters involving constitutional magnitude, is based on the importance of preserving finality in judicial proceedings.  Therefore, JA contends that Doe v. Rumsfeld is not an “overruling decision” within the meaning of the general rule regarding retroactivity.  While its conclusion regarding the legality of AVIP is contrary to the result in earlier decisions by other courts the decision in Doe v. Rumsfeld does not purport to, and indeed could not overrule any such decisions.  Attempting to apply the Doe v. Rumsfeld decision retroactively would be inappropriate given the many different reasons that military members were discharged for failing to participate in AVIP.  Not all members in this situation were similarly situated, claiming that the anthrax inoculation was experimental.  Each case must be viewed on its own merits, taking into account the factual circumstances surrounding the member’s discharge from the military.  Consequently, JA contends the retroactive principle should not be applied in this case.  

JAA also notes that the applicant knowingly and intentionally offered to resign in lieu of undergoing and administrative discharge.  In waiving his right to an administrative discharge board, the applicant relinquished his opportunity to make an argument that the AVIP was illegal and the order to be inoculated was invalid.  He should now be precluded from arguing that the holding in an unrelated case should be applied to his benefit.  JA cautions that, in light of the pending appeal, applying Doe v. Rumsfeld as though it were a final decision is premature and JA recommends the AFBCMR not treat it as controlling at this time.  In the event the Doe v. Rumsfeld decision is upheld by an appellate court, the applicant can request reconsideration at that time and the impact of the decision reassessed.

USAF/JAA’s complete evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Applicant notes the USAF/JAA advisory was prepared by the same person who prepared the DOD’s prosecution position in early 2000 for a UCMJ case defending the legality of the AVIP against the first allegations of experimentation.  Applicant notes he is only a pilot from a major airline and not a lawyer, yet he must be saying something the DoD does not want to hear to require such a strong response.  What he is saying is that AVIP is illegal.

He has never questioned the veracity of the statement that military orders are clothed with an inference of lawfulness.”  Likewise, he has never questioned his commander’s intent for ordering him to take the shots.  He concedes his commanders were doing nothing but following orders as well.  He notes commanders who did debate the illegal nature of the vaccine were run out of the military.  However, the special status of the military and the specialized court system does not take away a soldier’s constitutional rights.  Soldiers questioning the validity of the order were not allowed to address the legality of the AVIP based on its experimental nature and were therefore denied their rights under the US Constitution.

The presumption that military orders are “clothed with an inference if lawfulness” is not sacrosanct.  The fact that the federal court ruled twice that the FDA’s actions were illegal based on a “summary judgment’, a ruling not commonly or lightly used, indicates the court saw through the FDA’s failure to properly regulate the vaccine. The court ruling was specific and the use of a summary judgment equates to patently illegality under the UCMJ is unambiguous.  He states he was involuntarily discharged for disobeying an illegal mandate.

He contends the legal hyperbole concerning the Relation Back Doctrine and retroactivity is simple: the AVIP was, and always has been, illegal.  He states the federal judge, at no time, did not conclude the program wasn’t illegal in the past. The applicant states the JAA advisory’s attempts to discredit the Relation Back Doctrine and retroactivity in this case has done just the opposite in that their statements support the fact “that an act done today is considered to have been done at an earlier time.”  The applicant states JAA provided two pages of legalese when addressing the effectiveness of the vaccine against inhalation anthrax.  Applicant contends the evidence is overwhelmingly against the efficacy of the vaccine and further, the evidence shows it has never been proven effective against inhalation anthrax.  He states common sense should be applied to his argument as if the vaccine mandate is illegal, the order to take the vaccine should also be considered illegal.

Applicant believes the DoDs vigorous defense of AVIP is due to the advisory’s statement that “DoD went to considerable effort and expense, over many years, to vaccinate thousands of personnel…” Applicant contends the effort expended by DoD to convince each commander and soldier that the program was safe and effective is responsible for the hidden expense of the AVIP counted in billions of dollars spent on training now discharged or disciplined pilots and servicemen.  Legal or not, he believes DoD thinks it impossible to back away from failed program because of the cost and time put into selling it: legal or not. 

In defense of his resignation from the ANG he states he was going to be discharged anyway.  Anything he did to defend his position, including an administrative DRB, would have proven fruitless.  His counsel advised him to resign, as his conclusion was that the applicant would not receive an impartial board or a fair hearing, as they believed the findings of the Board were already known.  Therefore he resigned with the promise of an honorable discharge from his commander.

He believes the JAA advisory was filled with “legal-speak’ designed to “sell the vaccine” to the Board to keep the status quo.  He contends while he resigned, he was actually thrown out of the ANG.  He respectfully request the BCMR look into all the data in this case and make a prompt and informed decision.

Applicant’s complete response is at Exhibit G.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  Applicant contends he was discharged from the Air National Guard for failure to participate in the Anthrax Vaccination Immunization Program (AVIP).  Without making any judgements on the basis or process of his discharge at this time we note the applicant’s request centers on the correctness of his failure to comply with an order to take the anthrax shots, and in support he cites a recent court decision Doe v. Rumsfeld. In this regard, the Board notes the Chief, Administrative Law Division, states that Doe v. Rumsfeld is still being litigated.  The Board should take no corrective action on this application until the litigation has been finalized.  Should the litigant’s prevail in Doe against the Secretary of Defense, the Board would be willing to reconsider the applicant’s requests.  We find no compelling basis at this time to recommend granting the relief sought in this application.  We agree with the rationale in the JAA advisory and adopt it as our own.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered AFBCMR Docket Number BC-2004-00203 in Executive Session on 31 March 2005, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 18 Feb 04, w/atchs. 
    Exhibit B.  Letter, ANG/DPP, dated 20 Oct 04, w/atchs.
    Exhibit C.  Letter, SAF/MRBR, dated 29 Oct 04.
    Exhibit D.  Letter, APPLICANT, dated 22 Nov 04, w/atchs.
    Exhibit E.  Letter, HQ USAF/JAA, dated 10 Feb 05.
    Exhibit F.  Letter, APPLICANT, dated 7 Mar 05.

                                   Chair