2 articles -- Officer's suit and DoD IG report on false testimony to Congress

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Army Times Publishing Company -- AF Times

OFFICERS FILE ANTHRAX LAWSUIT

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Two Air Force officers who refused to take the military's anthrax vaccine

filed a federal lawsuit May 2 to have the vaccine declared an investigational

drug.

Former Maj. Sonnie Bates of Dover, Del., was forced to end his 14-year career

last year after he refused to take the vaccine.

Capt. Buck, a doctor stationed at Keesler Air Force Base, Miss., is

facing a court-martial for refusing the vaccine.

Their attorney said they and hundreds of others discharged or disciplined for

refusing the vaccine could have their records expunged if the lawsuit

succeeds.

Bates, now a corporate pilot, says he'll try to rejoin the Air Force if he

wins his lawsuit.

The military first used the anthrax vaccine for mass inoculations during the

Gulf War and has continued to use it since then.

The plaintiffs say the vaccine not only has never been approved for such use,

but it is being administered incorrectly. They say the health and safety of

millions of military personnel are at stake.

Pentagon officials weren't available for comment at press time.

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General's Anthrax Vaccine Testimony 'Inconsistent With Honesty,' Says

Inspector

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May 11, 2001

Dave Eberhart

Stars and Stripes News Editor

   

" We've had 10,700 people inoculated for anthrax in the Air National Guard,

with one known refusal documented, " said Maj. Gen. Weaver, director of

the Air National Guard (ANG) during a September 1999 hearing before a

Congressional panel.

A group of military officers later charged that Weaver misled the committee

and a recent investigation agreed with them--in part.

   

*** His [Weaver's] statement lacked the necessary element of

'straightforwardness,' and so was inconsistent with guidelines for honesty as

set forth by the Joint Ethics Regulations.- DOD IG ***   

   

" His [Weaver's] statement lacked the necessary element of

'straightforwardness,' and so was inconsistent with guidelines for honesty as

set forth by the Joint Ethics Regulations (JER), " said the Department of

Defense (DOD) Office of the Inspector General (IG) in a report concluded in

March.

J. Lieberman, the deputy DOD IG, further concluded Weaver presented

the truth " in such a way as to lead recipients to confusion,

misinterpretation, or inaccurate conclusions. " Weaver's nomination for

appointment to the grade of lieutenant general was being held by the

secretary of the Air Force pending completion of the inquiry, according to

Lieberman.

The report concluded, however, that Weaver's misleading testimony before a

House committee investigating refusals of the anthrax vaccine did not warrant

any punishment. Weaver was " not willfully false or misleading " in view of the

staff analysis and input on which he based comment of " one known refusal

documented, " said the IG report. Lieberman concluded that " several staffs "

had combined efforts to define what constituted a " refusal " for statistical

purposes in an attempt to measure the impact of the Anthrax Vaccine

Immunization Program (AVIP) on retention of military personnel.

   

*** We found that the meaning of the term 'refusal' was key to understanding

the intent and basis of Maj. Gen. Weaver's statement. - DOD IG ***   

   

" We found that the meaning of the term 'refusal' was key to understanding the

intent and basis of Maj. Gen. Weaver's statement " before Congress, said the

report. " In his testimony to us, Maj. Gen. Weaver emphasized that, because

'there was so much misinformation out there [concerning the number of pilot

losses due to refusals of the anthrax vaccine],' he considered it essential

that any statistics provided to the subcommittee be accurate and verifiable. "

On Jan. 14, 2000, 74 officers ranging in rank from first lieutenant to full

colonel, composed mostly of the ANG or United States Air Force Reserve

(USAFR) pilots, presented Mancuso, then the acting DOD IG, a complaint

and request for investigation. The officers were concerned that Weaver's

comments were an attempt to bury legitimate concerns about the side effects

of the current anthrax vaccine used by the Pentagon.

More than 500,000 troops have received the six-shot series since the program

was implemented in 1998 and an estimated 450 military personnel have refused

to take the vaccine. The Stars and Stripes obtained a copy of the complaint

of the 74 officers as well as a copy of the results of the IG investigation.

In testimony before the IG, Weaver acknowledged that he should have explained

further his comment regarding " one known refusal documented, " to include the

definition that it referred to " someone who's got a commitment, who refuses

the immunization. " Further, he told the IG that he wished he had balanced the

" one known refusal documented " comment with the admission that he was aware

of other ANG members who might have left because they refused to take the

anthrax vaccine.

       

The officers' complaint noted that during the Sept. 29, 1999 hearing before

the House Government Reform Committee's Subcommittee on National Security,

Veterans' Affairs and International Relations, Weaver said, " So, when I hear

all of these other figures about these mass resignations [due to members

refusing the anthrax vaccine], and what not, they're just not there. There

are challenges with explaining, with discussing, as they all are, with the

members of their unit, on the anthrax issue. But when it really gets down to

it, we've had 10,700 people inoculated for anthrax in the Air National Guard,

with one known refusal "

Eight Pilots, Seven Pilots

Months prior to Weaver's testimony, however, the complaint alleged, eight

pilots from the Connecticut Air National Guard and seven from the Wisconsin

Air National Guard refused the anthrax vaccine. " Maj. Gen. Weaver first

became aware of the imminent departure of these pilots from warnings

forwarded to the Air National Guard headquarters by the commander of the

Connecticut ANG 103rd Fighter Wing in October 1998--nearly one year prior to

his testimony, " the complaint said.

Weaver had received that memo from Col. Walter F. Burns, who voiced concerns

he could lose one-third of the pilots in his 103rd Fighter Wing due to

refusals to take the anthrax vaccine. Soon after that, approximately

one-fourth of the fighter wing's pilots resigned due to concerns about the

vaccine.

Subsequently, said the complaint, on Jan. 21, 1999, former Pentagon spokesman

Bacon acknowledged the departures from the Connecticut ANG by

stating: " eight or nine people have resigned rather than take the shot. "

These resignations, said the complaint, were also covered in media reports

beginning on Jan. 15, 1999. The Wisconsin ANG pilot losses were also widely

publicized, added the complaint.

Ethics Regulations

The IG report based its conclusions upon an interpretation of the Joint

Ethics Regulation (JER), DOD Regulation 5500.7-R, which states that DOD

employees should consider ethical values when making decisions as part of

official duties. In that regard, the JER states that being " truthful,

straightforward, and candid " are aspects of the primary ethical value of

" honesty. "

Weaver also told the IG in sworn testimony that, in discussions with

L. Cragin, former assistant secretary of defense for reserve affairs, and

staff members prior to the September 1999 hearing, he pondered, " Well, what

do we consider refusal? " In response, he recalled that, during one of those

meetings, he was told, " a refusal in the Guard and Reserve--since it's a

volunteer organization--is someone who's got a commitment who refuses the

immunization. That's a refusal. "

Weaver told the IG that he had " no idea " where that definition originated,

but that he agreed with it because such a refusal would be documented because

of probable disciplinary action and would thereby enable a more accurate

statistic regarding the number of Service members who refused the vaccine.

Lieberman found that the determination of what constituted a " refusal " was

not only of concern to Weaver, but also had been the subject of debate and

analysis by Air Force and National Guard bureau staffs for months before

Weaver testified to the subcommittee.

For example, said the IG, in an April 1999 presentation to the secretary of

the Air Force, the lack of a clear refusal definition was raised. A slide

from that presentation acknowledged that refusals were not being tracked and

posed the issue: " How will we decide what equals refusal: initial reluctance?

Administrative action? Non-judicial action? Separation? "

   

*** There appears to be little consistency to what is considered a bona fide

refusal. Even if we had a good definition of what a refusal is, we still

wouldn't capture all the motivations, intents, and thoughts that people have

relative to anthrax in the course of making career decisions. - air surgeon

***   

   

Similarly, said the IG, an email sent by the National Guard Bureau (NGB) air

surgeon to members of the NGB staff opined: " There appears to be little

consistency to what is considered a bona fide refusal. Even if we had a good

definition of what a refusal is, we still wouldn't capture all the

motivations, intents, and thoughts that people have relative to anthrax in

the course of making career decisions; there's no mechanism to track this

stuff and the exit interviews generally aren't helpful. "

E-mail Evidence

According to the IG, the email suggested that the ANG would define a refusal

as the failure to follow a lawful order to take the vaccine, then " Weaver

adopted that relatively narrow definition of refusal prior to his hearing

before the subcommittee. "

Weaver noted most members of the National Guard can leave " if they don't like

what they see here, " indicating that they could resign on short notice if

they anticipated being scheduled for a mandatory anthrax vaccination.

Consistent with his definition of refusal, Weaver said that he not view

pilots in the Connecticut National Guard who resigned as " refusals " --since

they could avoid taking the vaccination without facing disciplinary action.

Weaver told the IG that, prior to the September hearing, a key staff member

told him, " We have one person that is a confirmed refusal, " based on the

narrow definition. Although the staff member did not recall making that

representation to Weaver before the hearing, the IG found an e-mail that she

transmitted to Weaver on July 13, 1999, which provided status on the progress

of AVIP and stated: " Number of refusals -- one confirmed with disposition

pending. "

The IG said the testimony and communication that they received from Air

National Guard members during the course of the inquiry demonstrated that

those members considered the term " refusal " in standard dictionary parlance

-- " a declination--with none of the qualifiers that Maj. Gen. Weaver and his

staff attached to it. "