Airmen who refused anthrax vaccine could have their records cleared ...

[Guest guest]

Excerpt: False: " The vaccine has long been approved for use against

anthrax contracted through the skin. " Truth: FDA never licensed the anthrax

vaccine until December 2005, and this is why the AVIP was illegal prior per the

summary judgement by the DC District federal court, which the DC Appeals Court

declined to vacate or overrule. The federal court's affirmed since that the

program was " not substantial justified " , and that any attempt to imply the

program was legal previously is " fiction. "

Airmen who refused anthrax vaccine could have their records cleared

By H. Mc - bmcmichael@...

Posted : May 12, 2008

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 on 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, Rempfer and the estate of the late Dingle,

based their appeal on a separate anthrax vaccine lawsuit.

on 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, on wrote that the Air Force board must

reconsider the cases and explain its conclusions about the merits of plaintiff's

constructive discharge claims and their accompanying demands for compensatory

relief.

In other words, said 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, on 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, found.

Sullivan's decision, on 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.