Marine abused for vaccine refusal, even sent to Kuwait to coerce him, even told he could face a charge of treason

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http://www.nctimes.com/articles/2003/12/30/news/top_stories/12_29_0321_19_28.prt

Wednesday, December 31, 2003

Last modified Monday, December 29, 2003 9:32 PM PST

Troop anthrax shots in question

By: DARRIN MORTENSON - Staff Writer

CAMP PENDLETON ---- At least two local Marines remain in legal

limbo as federal officials and a Washington district court judge wrangle over

whether the military can force members of the armed services to take anthrax

vaccinations.

The two Marines refused to take mandatory inoculations a year

ago and have since faced stiff punishment for refusing direct orders. One claims

to have suffered intimidation and even a death threat from his superiors for

refusing the vaccine.

Last week Judge Emmet G. Sullivan of the United States

District Court in Washington, D.C, ruled that the anthrax vaccinations fell

under a 1998 law banning the use of certain experimental drugs. His ruling

barred the Pentagon from " inoculating service members without their consent "

unless President Bush signs a waiver.

Two days later, on Dec. 24, the Justice Department filed a

motion asking the judge to limit his injunction to six plaintiffs in the case.

Limiting the injunction would allow the vaccination program to continue for the

rest of the armed services.

Two North County men are among hundreds of members of the

armed services who advocates say have refused the shots and either left the

military or have been punished.

Lance Cpl. Lotz, 21, of Rancho Penasquitos, was

discharged from the Marine Corps for " bad conduct " in October after he refused

the order to be vaccinated before his unit deployed to Kuwait in January. Lotz

is appealing the status of his discharge and said he hopes the recent legal

challenge will help his case.

Marine Pfc. Darren Fisher, 20, of San Marcos, still faces

court-martial for refusing the shot, according to Lt. Col. Tom Scully of 1st

Marine Division Staff Judge Advocate's office, which prosecuted Lotz and has

charged Fisher.

The recent legal challenge shelved Fisher's court-martial

proceedings for at least 30 days, Scully said Monday. Under a summary

court-martial, Fisher can be reduced in rank and responsibility but not

involuntarily discharged even if he's convicted, Scully said.

Fisher could not be reached for comment Monday.

Dissenter discharged

Lotz was not as fortunate. In October, he was discharged for

" bad conduct " after he refused the order to be vaccinated before his Twentynine

Palms-based infantry unit deployed early this year. He was prosecuted under a

" special " court-martial, less severe only than a " general " court-martial under

the U.S. Military Code of Justice.

Lotz is appealing his discharge, a move Pentagon officials say

is the only legal option open to him.

" If someone has a problem with his or her records, there are

boards specifically set up to address that, " said Jim , a civilian

spokesman at the Pentagon. " They can challenge those decisions. "

Lotz said that although he is no longer a Marine and might

have to stick with his discharge, the challenge to the system of mandatory

inoculations could help other Marines avoid the humiliation and heartbreak he

says he experienced over the last year.

He said that many men in his battalion were concerned about

the health risks of the anthrax shot, and at least 20 had decided not to take

it. But when it came time to receive the shots last in December 2002, he was the

only one to refuse.

Even though he offered to sign a waiver saying that he

understood the risk if he was involved in a chemical attack in Iraq, he said his

commanders eventually turned against him.

Lotz said he wanted to deploy with his unit but his commanders

separated him from his comrades and told him he would not participate in the

invasion of Iraq.

He said he believes he was eventually sent to Kuwait so that

commanders could coerce him to take the shot and rejoin his fellow Marines.

Deployed without shot

" I thought it meant the charges were dropped, " he said of the

sudden decision to let him deploy. " But after I got to Kuwait, all they did was

try to get me to take the shot. They asked every day and said, 'We're going to

charge you when we get back, and then you'll be punished as a traitor.' "

Lotz said that one senior noncommissioned officer even told

him that once the war started he would be accused of treason and could face a

summary death sentence in the field.

Scully, however, said that he was not aware of that or any

other allegations of threats or coercion by Lotz' leaders in Kuwait.

On Feb. 15, after two weeks of refusing the shot, Lotz was

sent back to Camp Pendleton where he said he waited in " limbo " until he was

finally charged and court-martialed in October.

" I was a Marine, and I felt betrayed, " he said. " They always

talk about courage and commitment, and I thought I was the only one showing it.

'Semper Fi' just went right out the window. Nobody is faithful. You do a good

job and then for one thing they're ready to boot you out. "

While under the original, special court-martial Lotz faced

four separate charges of refusing the same order from four officers, he made a

deal to plead guilty to only one charge.

He was confined for 14 days in the brig, reduced to the rank

of private, and discharged. He said he hopes a ban on mandatory inoculations

could influence the military board that will hear his appeal.

Now, as he tries to make a life in the civilian world, he said

he keeps a positive attitude and tries to learn from his experience.

Because he had to research the Navy legal system to defend

himself, he said he became interested in law and in his rights as a citizen.

A part-time worker at a local Costco Wholesale Corp. store,

Lotz said he will start classes at Palomar College next month in hopes of

becoming an attorney.

" I'm trying to find the good in this, " he said, " and make the

best of a bad situation. "

Pentagon seeks to lift ban

While the judge reviews the ruling and the Justice

Department's motion to limit its scope, Pentagon officials have halted the

anthrax shot program " until the legal situation is clarified. "

Lawyers and plaintiffs in the case that spurred Sullivan's

ruling say that nearly 500 active-duty members of the armed services have

refused the vaccine, with close to 200 court-martialed as a result. From 500 to

1,000 pilots and flight personnel have left the Air National Guard or Reserves

rather than take the vaccine, the lawyers say.

Pentagon officials say that although several hundred military

or civilian personnel declined the vaccine in the initial years after the

program was begun in 1998, only 10 have refused it since June 2002, when

vaccinations were accelerated.

Since then, 600,000 to 700,000 military and Pentagon civilian

personnel have received the vaccine, military officials say. Experts are divided

on whether the shots cause high levels of illness or widespread side effects.

The Associated Press contributed to this report.

Contact staff writer Darrin Mortenson at (760) 740-5442 or

dmortenson@....

Meryl Nass, MD

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