Here are two local stories about the young man in Ohio that asked only for the military to obey US law, and responsibly resurvey its judgments. Instead, the DoD once again denied due process, not allowing this young man, or his attorney Ken Levine, from questioning the legality of the AVIP.  

This is the first case in the National Guard resulting in imprisonment. 

Remember what the DoD official (Asst. SecDef for Reserve Affairs) said a few years ago in Congressional hearings -- link -- http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=106_house_hearings&docid=f:63501.wais 

Excerpt from 29 SEP 99: 

    Mr. Shays. Are you aware of any service members who have been told they would be subject to discipline proceedings ...

    Mr. Cragin. ... they are certainly not going to be subject to any penalties. That is one of the points of the Guard and the Reserve. 

Needless to say, our DoD is doing whatever they can get away with in this dilemma, and will continue to do so until the civilian authority of the legislative or executive branches of our government exert their Constitutional oversight responsibilities and hold the DoD accountable for its violations of US law. Until then, DoD will continue to hold young men like Army Specialist Hickman accountable instead of themselves. 

Maj. Tom Rempfer 

---------------------------------------------------------------------- 

Guardsman given discharge, jail for refusing anthrax shots

Sunday, December 14, 2003

Sherri Williams

THE COLUMBUS DISPATCH

The first Army Ohio National Guard member charged for refusing to take the anthrax vaccine was sentenced yesterday to 40 days in jail and a bad conduct discharge.

Spc. Kurt Hickman, 20, had worried about health risks of the vaccine, but Military Judge Col. Emmett Moran said at the end of the court-martial at Beightler Armory that putting on the guard uniform can be a health risk. Disobeying a lawful order also endangers others, Moran said.

"Discipline is the thread of the fabric that holds the military together," said Moran, who also is a lawyer at the Davis & Young law firm in Cleveland. "We don’t make policy, we follow it. We don’t make democracy, we protect it."

Kenneth Levine, Hickman’s attorney, said he will file an appeal. Hickman and his parents referred all questions to Levine.

"We are disappointed, and the government and the National Guard should be ashamed," said Levine, of Blue Bell, Pa. "This is the first time a National Guardsman has been confined for not taking the anthrax vaccine."

Top officers over Hickman’s unit will review the court-martial early next week and either accept, reject or reduce all or part of the judge’s recommended sentence. Those officers also will determine when and where Hickman, of Granville, will serve it — although officials said it would be in a civilian jail.

Hickman also will have to repay some tuition money and bonuses for the two years he has been in the Guard. The amount has not yet been determined.

Levine argued that the order for Hickman to be vaccinated was unlawful because a Defense Department memo requiring activated guardsmen to be inoculated had expired on Nov. 13, a year after it was issued. Hickman was ordered to take the vaccine on Nov. 22.

Moran acknowledged that the letter was outdated, but said the order was lawful because it corresponds to other Defense policies: The department has been requiring the shots since 1999.

More than 900,000 members of the armed forces, including at least 2,700 Ohio National Guard members, have had the anthrax vaccine. In 1999, five Ohio Air National Guard members based in Cincinnati were discharged for refusing it.

During the sentencing phase of the trial, Levine introduced newspaper articles about studies that found negative side effects of the vaccine.

A 2002 survey by the General Accounting Office found that 85 percent of Air Force Reserve and Air National Guard troops vaccinated against anthrax between 1998 and 2000 suffered effects that included headaches, muscle aches, dizziness and difficulty breathing.

Hickman was ordered to take the vaccine because his unit, the 196 th Mobile Public Affairs Detachment, was preparing to be deployed to Iraq in January. The Defense Department requires troops going to high-risk areas for more than 15 days to be vaccinated against germ warfare.

Hickman, a junior journalism major at Ohio University, was given two chances to take the vaccine and refused both times.

He did not testify about his decision but said he was eager to serve his country: "I thought it was an exciting opportunity."

Maj. Neal O’Brien, commander of Hickman’s unit, testified that he counseled Hickman on the vaccine’s safety and the ramifications of disobeying a lawful order, and allowed him to talk to doctors about the vaccine.

O’Brien said that Hickman was an efficient guardsman but is a poor candidate for rehabilitation because he does not follow orders.

"On the battlefield, he will not have the option to ask others which orders are lawful and which are not," O’Brien said. sherri.williams@dispatch.com

http://www.newarkadvocate.com/news/stories/20031214/localnews/35683.html

Officials make recommendation for Granville soldier who refused vaccine

By JONATHAN ATHENS
Advocate Reporter  

Spec. Kurt Hickman, 20, of Granville, became the first National Guardsman to be court martialed for refusing to accept the anthrax vaccine. The court martial, held in Columbus at Beightler Armory, lasted just under four hours and ended with the recommendation by Col. Emmett Moran, said Ohio Army National Guard spokesman James Sims.

Hickman, who is a college student and part of the Guard's public affairs unit, was slated to be sent overseas in January and was excited about going until he found out he would be required to take the anthrax vaccine, said Hickman's civilian defense attorney Ken Levine.

Levine said the court martial was an embarrassment.

"This is the first time a Guardsman has been incarcerated for refusing the anthrax vaccine...We were disappointed and embarrassed for the governor and the National Guard," Levine said.

Although Hickman has not been sentenced yet and is not currently confined, a final decision by senior National Guard officials is expected within days, said Sims.

Known as the "convening authority", senior military officials can still modify the sentence, Sims said.

Last week, Hickman's parents delivered letters to Gov. Bob Taft, state senators Jay Hottinger and James Carnes and state representatives David Evans and Jimmy Stewart, asking the government officials to intervene.

The letters were not admitted into the court martial proceedings, said Levine, adding he intends to appeal the case to state and federal courts if Hickman is jailed.

For now, Hickman's fate rests in the hands of Taft who can lower the sentence and ask the Ohio Adjutant General to reverse the decision to give Hickman a dishonorable discharge, he said.

If and when Hickman is discharged, he will be required to pay back a portion of his tuition assistance, Levine said.