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Review ordered for anthrax vaccine refusers

By William H. McMichael - Staff writer
Posted : Saturday Apr 26, 2008 7:23:17 EDT
http://www.armytimes.com/news/2008/04/SATURDAYmilitary_anthraxvaccines_042608w

A federal judge’s decision could lead to clearing the records of military personnel who refused to take mandatory anthrax shots between 1999 and 2004.

Judge James Robertson of the district court for the District of Columbia admonished the Air Force Board for the Correction of Military Records, which had rejected a petition by two former Connecticut Air National Guard officers for compensatory relief for back pay and lost promotions after they claim they were forced to resign for refusing the vaccine.

The plaintiffs, Thomas Rempfer and the estate of the late Russell Dingle, based their appeal on a separate anthrax vaccine lawsuit.

Robertson said the Air Force records board mistakenly characterized that lawsuit as a victory for the government, when it was not, and cited that conclusion in rejecting the petition.

The board is a civilian entity empowered to review Air Force records “when necessary to correct an error or remove an injustice.”

In early 1998, Rempfer and Dingle were appointed to look into concerns they and other unit members had about the vaccine’s efficacy against airborne anthrax, which the Pentagon considered the likeliest threat against troops. After their review, they felt the concerns were justified, refused an order to be vaccinated and were disciplined, as were what is believed to be hundreds of other service members.

Rempfer and Dingle’s estate want their personnel records corrected to reflect their work with that task force, to document that their discharge was an “illegal constructive termination” and to get back pay and allowances, plus rank and points lost as a result of that termination.

In his March 14 decision, Robertson wrote that the Air Force board must reconsider the cases “and explain its conclusions about the merits of plaintiffs’ constructive discharge claims and their accompanying demands for compensatory relief.”

In other words, said John J. “Lou” Michels, a pro bono attorney for the plaintiffs, the court told the board: “You’re wrong, and you’re going to have to reassess your opinion. And when you reconsider this matter, we’re going to look very closely at your basis. You’re disagreeing with a federal court ... it’s not your job to do that. It’s the federal court’s expertise. You’d better have a pretty good justification.”

Along with forcing review of the plaintiff’s claims, the decision could open the door for other service members who may have similar complaints, Michels said.

But some claims could be blunted by a six-year statute of limitations on civil cases. In fact, Robertson ruled that time had run out on two of the three claims made by Rempfer and Dingle.

“For a lot of these folks, time has run out, which is why I think we need some legal redress on this, or an executive decision,” Michels said in an April 24 interview.

“What this should do is send a very clear message to Congress that this whole program was wrong from the very beginning,” Michels said.

The Pentagon “illegally injected people with an uncertified vaccine,” he said. “It seems to me a legislative fix is in order so that these kids don’t have to go out and hire lawyers to get their records fixed.”

Michels said Congress also should order the Veterans Affairs Department “to do a much better job of going out and finding people who took the vaccine, were sickened, and get them care for their injuries — very similar to what they did for Agent Orange folks.”

The vaccine has long been approved for use against anthrax contracted through the skin. In a 2003 decision, U.S. District Court Judge Emmet Sullivan sided with six anonymous military litigants to rule that the Food and Drug Administration had never approved the anthrax vaccine for protection against inhaled spores and that it was being used for an “unapproved purpose.”

It was this ruling that the Air Force board misinterpreted, Robinson found.

Sullivan’s decision, Robertson wrote, meant that up to that time, forcing service members to take anthrax shots violated federal law.

The Pentagon had to suspend its involuntary program for most of the time between December 2003 and February 2007, until after the FDA ruled that the vaccine was safe and efficient for all forms of anthrax and the Pentagon could obtain new supplies.

Inoculations are required for service members and emergency-essential and equivalent Defense Department civilians assigned for 15 or more consecutive days to the U.S. Central Command or U.S. Forces Korea areas.

There are provisions for forces afloat, members assigned to special units with biowarfare- or bioterrorism-related missions, and other designated units.