Marine Demoted, Confined [105 days] For Refusing Vaccine

by David Allen

Stars and Stripes

January 12, 2001

CAMP FOSTER —A Marine was busted to private and sentenced to 105 days’confinement Wednesday for refusing a direct order to take the military’s controversial anthrax vaccine.

Pfc. Vitalino Arroyo, 20, is one of three servicemembers on trial in Keystone Judicial Circuit Court this week for refusing to begin the series of six vaccinations mandated by the Department of Defense for protection against the biological warfare weapon.

Arroyo, who was attached to the 3rd Battalion, 2nd Marines at Camp Lejeune, N.C., on a six-month deployment to Okinawa, testified he was concerned the shots could adversely affect his health. He refused several orders, one written, to take the shot.

"I believed honestly, with all my heart, that the shot would hurt me in a negative way," Arroyo testified during his brief court-martial Tuesday afternoon.

Arroyo said he read information over the Internet and in the newspapers, as well as speaking to friends, concerning the possible adverse reactions to the vaccine.

"The FDA [Food and Drug Administration] approves which things are good or bad and they have not approved of the shot, so it must be bad," he said.

Marine Capt. Justin Constantine, Arroyo’s defense attorney, argued such a belief placed Arroyo under duress at the time he was ordered to take the vaccine on Jan. 4, 2000, while at Camp Schwab.

He refused the shot when his company was scheduled up to take it and then refused a direct verbal and written order from the battalion’s legal officer, Capt. Todd Pipes.

However Constantine had little room to maneuver in Arroyo’s defense.

Last summer, Maj. Eric Stone, the military judge in the case, ruled in the three pending anthrax refusal cases that the orders to take the shots were legal. Stone’s ruling was upheld by an appellate court in November.

During Tuesday’s hearing, Constantine argued that Arroyo had not refused Pipes’ direct order, but was instead objecting to the overall anthrax vaccination program.

Stone rejected the argument and found Arroyo guilty.

Arroyo faced a maximum sentence of five years in prison and a dishonorable discharge. Constantine asked for no brig time and a bad-conduct discharge, noting that experience of the yearlong legal odyssey left a "sour taste in his mouth for the Marine Corps."

Arroyo testified that he felt abandoned by his unit, which left him on Okinawa "high and dry," when it rotated back to Camp LeJuene, N.C., at the end of its six-month deployment. Constantine argued that being left alone on Okinawa for a year, with no cost-of-living allowance and no off-island leave was punishment enough.

Prosecutor Capt. Chris Kolomjec asked the court not to reward Arroyo with a discharge. "Just as Pfc. Arroyo doesn’t have the right to decide which order to follow, he also doesn’t have the right to decide what punishment to receive."

Kolomjec asked for a sentence of five years’ confinement and reduction in rank to E-1 in order to "send a strong message to other Marines that they can’t pick and choose what orders to follow."