RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00944
            INDEX CODE:  110.02

            COUNSEL:  NONE

            HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

            a. His Officer Performance Report  (OPR)  for  the  period
9 July 1998 to 14 December 1998 be corrected to more  fully  represent
his accomplishments during the time period indicated.

            b. He be reinstated to the Connecticut Air National  Guard
(CTANG) flying program with  back  pay,  allowances,  longevity,  lost
“command pilot” rating, and a rank commensurate with his position upon
return.

_________________________________________________________________

APPLICANT CONTENDS THAT:

            a. The CTANG violated the letter and  spirit  of  the  law
without grounds by withholding records documenting his  dismissal  and
initially obscuring Tiger Team Alpha’s existence.   Tiger  Team  Alpha
was an ad hoc investigative panel tasked by applicant’s Wing commander
to identify, compile,  and  present  findings  regarding  the  Anthrax
Vaccine Immunization Program (AVIP).

            b. A federal court recently ruled that the  AVIP  violated
United States law because the vaccine was  considered  investigational
and it’s license was never finalized.

            c. The CTANG Commander did not have the legal authority to
dismiss him, did not convene a discharge board,  and  did  not  convey
concerns about the illegality of the AVIP.

            d.  The  CTANG  Wing  Commander  defrauded  the  State  of
Connecticut with  falsities  and  constructed  an  unprofessional  and
maligning environment, forcing his resignation.

            e. Coercion preceded  his  transfer  from  the  CTANG  and
perpetuated   the   fraud   with   an   unconstitutional   retaliatory
infringement of fundamental rights and due process rights.

            f. Tiger Team Alpha’s warning was  hastily  dismissed  but
later corroborated by congressional reports  as  well  as  by  the  CT
Attorney General and the Federal Judicial Review.

            g. He endeavored, through previous attempts in good faith,
to return to the 103rd Fighter Wing (FW)  to  no  avail.   A  previous
pledge of reinstatement by his commander was not honored.

In  support  of  his  appeal,  the  applicant  has  provided  personal
statements, copies of OPR’s including the OPR in  question,  pertinent
background  information,  letters  of  recommendation   and   support,
government data, Tiger Team inputs, and a  partial  transcript  of  an
Inspector General (IG) investigation.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant began his military career on 27 May  1987  as  a  second
lieutenant (2Lt/02) and graduated from  undergraduate  pilot  training
(UPT) as a first lieutenant (1Lt/03) in July 1989.   He  served  as  a
fighter pilot through several active duty assignments and  on  7 April
1994, he became an A-10 pilot with the CTANG in the grade  of  captain
(Capt/03).  On 28 May 1996, he left the CTANG for an active duty  tour
at Holloman AFB, NM to fly F-117 Stealth Fighters.  On 9 July 1998, he
rejoined the CTANG as Chief, Weapons Training.  In September 1998, the
wing commander announced the policy  that  all  officers  would  begin
receiving  anthrax  injections  regardless  of  mobility  status.   In
October 1998, the applicant  was  chosen  by  the  wing  commander  to
participate as part of a panel, referred to as “Tiger Team Alpha”,  to
investigate the anthrax policy and try to capture the attitude of  the
unit.  Tiger Team Alpha provided the  wing  commander  with  a  report
wherein the team presented data that questioned the  efficacy  of  the
anthrax inoculation and the legality of the AVIP.  The wing  commander
condensed the teams’ findings into a memorandum and  forwarded  it  to
NGB/CC.  He asked for HQ-level guidance on how  to  proceed  with  the
AVIP noting he was not equipped to address the issues and  answer  the
questions posed by  the  team’s  findings.   The  unit  began  anthrax
inoculations during November and December 1998.  In January 1999,  the
applicant and  seven  other  pilots  refused  to  accept  the  anthrax
injections and were at some point after  their  refusal  removed  from
flying duties.  All eight pilots eventually left the CTANG  either  by
transfer or retirement.  Applicant requested a  transfer  to  the  Air
Force Reserve (AFRES) and, on 26 March 1999, he was  accepted  by  the
AFRES.  He was promoted to major (04) with a date  of  rank  (DOR)  of
1 October 1999.  He currently has over 17 years of combined active and
Reserve service and is serving in the grade of major with the AFRES as
a Flight Safety Officer.

In February 2004, applicant filed a complaint to the DOD/IG’s  Defense
Hotline, who in turn forwarded his complaint to  the  Directorate  for
Military Reprisal  Investigations  for  preliminary  analysis.   Their
analysis showed his complaint of Whistleblower reprisal did  not  meet
the unfavorable personnel action or timely reporting  requirements  as
outlined under Title 10, United States Code (U.S.C.) Section 1034  and
DODD 7050.6, Military Whistleblower Protection.  They found  his  1999
resignation from the CTANG a voluntary action as all military  members
had the choice of complying with AVIP or  resigning  their  positions.
They stated they would not take any further action on his request.

Since applicant’s transfer to the Reserve,  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 maintained the anthrax used  in  the  vaccination
was an experimental drug unlicensed for its present use and  that  the
AVIP violated 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,  he  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 contention the
order to participate in the AVIP was not a lawful order,  based  on  a
federal judge’s 22 December 2003 injunction  upon  the  DoD  to  cease
immunizing DoD employees.  The injunction was  pending  the  Food  and
Drug Administration’s (FDA’s) Final Report, which would determine  the
safety of the AVIP.  On 7 January 2004, the injunction was  lifted  as
the FDA’s Final Report found the immunization program to be  safe  and
effective.  The applicant’s contention  that  Senate  Resolution  278,
dated 25 November 2003, is a mandate or  is  directive  in  nature  is
without  merit.   The  Senate  Resolution  is  nothing  more  than   a
recommendation to the Secretary of Defense to reconsider  the  anthrax
and smallpox immunization programs.  Applicants  continuing  assertion
that the injunction made the AVIP illegal and unlawful both now and in
the past is an arbitrary statement based on current legal action being
taken by six other  military  members  who  were  discharged  for  not
participating  in  the  AVIP  program  in  the  past.   Regarding  the
retroactivity argument, 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 B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

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  defers  largely  to  the  new
injunction order for most of his argument against  the  DPPI  advisory
and notes the advisory  was  written  prior  to  the  new  injunction.
Applicant states  his  disagreement  with  several  aspects  of  NGB’s
opinion and contends NGB plainly ignored the evidence he submitted  in
his original application and in subsequent filings.   Regarding  NGB’s
contention he “claimed” he was “pressured  to  resign  and  leave  the
CTANG”, he states it is a fact borne out not only by IG testimony  but
also by pertinent documents that were part of his application.   At  a
minimum, he was wrongly discharged after warning his  commander  about
an illegal order (per the latest federal court ruling) by blowing  the
whistle on the AVIP program.  He states the retaliatory nature of this
situation continues  to  this  day  as  the  CTANG  still  refuses  to
reinstate him to  their  flying  program.   He  respectfully  requests
expeditious adjudication of his case in accordance with the spirit  of
DOD Directive 7050.6, The Military Whistleblower Protection Act.

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

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAA 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,
JAA 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, JAA 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 E.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant provided a 25-page  rebuttal  that  for  the  most  part
presents a similar argument as that included in his application.

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

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of error or injustice.  It should  be  noted,  regarding
his request to be reinstated in the Connecticut  Air  National  Guard,
that this Board lacks the authority to grant such relief.   In  regard
to his request to change his OPR, an OPR  is  considered  accurate  as
written and without rating chain support the Board is not inclined  to
change the report.  Furthermore, applicant  contends  he  was  coerced
into transferring from the Air National Guard to the Air Force Reserve
for failure to participate in  the  Anthrax  Vaccination  Immunization
Program (AVIP).  The applicant’s  requests  center  primarily  on  his
unwillingness to comply with the order and in support 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.  Therefore, it would not  be  prudent  for  the
Board  to  take  any  other  action  on  this  application  until  the
litigation has been finalized.  Should the plaintiffs prevail  against
the Secretary of Defense, the Board would be willing to reconsider the
applicant’s requests.  Therefore, we find no compelling basis at  this
time to recommend granting the relief sought in this application.

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-
2004-00944 in Executive Session on 31 March 2005, under the provisions
of AFI 36-2603:

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

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 19 Mar 04, w/atchs.
    Exhibit B.  Letter, ANG/DPPI, dated 18 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, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Chair