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

_________________________________________________________________

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).

_________________________________________________________________

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.

_________________________________________________________________

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.

_________________________________________________________________

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.

_________________________________________________________________

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.

_________________________________________________________________

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.

_________________________________________________________________

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.

_________________________________________________________________

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.

_________________________________________________________________

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.

_________________________________________________________________

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:

      Mr. Thomas S. Markiewicz, Panel Chair
      Mr. Michael K. Gallogly, Member
      Mr. James W. Russell, III, Member

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.




                                   THOMAS S. MARKIEWICZ
                                   Chair