By Bill Ordine, Inquirer Staff Writer

Philadelphia Inquirer

February 4, 2000

Air Force Maj. Sonnie Bates refuses to take the vaccine. A colonel will now decide if a court-martial is warranted.

DOVER, Del. - An Air Force pilot who faces a possible court-martial for refusing to take the anthrax vaccine waived his right to a military hearing that was scheduled for yesterday at Dover Air Force Base.

Maj. Sonnie Bates, a 14-year veteran who is charged with refusing to obey a lawful order, has said he fears the vaccine is a threat to his health.

In a letter he sent to the Air Force officer who would have presided, Bates said he was waiving his right to the Article 32 hearing because he believed the Air Force was using the proceeding merely to publicize the safety of the vaccine.

When compared to civilian proceedings, an Article 32 hearing includes elements of a preliminary hearing and grand jury inquiry. Both the prosecution and defense can call witnesses in front of an investigating officer, who later recommends a finding to a higher-ranking officer.

With the hearing waived, 436th Airlift Wing Commander S. Taco Gilbert 3d, a colonel, will decide whether to dismiss the charges, convene a special court-martial, or recommend to a higher officer that Bates face a general court-martial. At a general court-martial, Bates, who pilots C-5 cargo transports, would face a maximum sentence of five years in prison and dismissal from the Air Force.

Maj. Frank Smolinsky, public affairs officer at Dover, said no deadline had been set for Gilbert's decision.

Capt. Bill Burke, one of Bates' lawyers, said the prosecution of the pilot was retaliation for testimony he gave in October before a U.S. House committee looking into the vaccine program.

Following that appearance, Bates, a 35-year-old father of three, offered to resign, Burke said.

"He wanted to do that before there was a media explosion," Burke said. "He was willing to give up a distinguished career and walk away quietly."

Instead, Burke said, Bates was ordered to take the vaccine, setting in motion the current course toward court-martial.

So far, 200 military personnel have refused the vaccination, according to Pentagon officials, and Bates is the highest-ranking officer to do so.

"Major Bates is an important and viable part of our team, he's a C-5 pilot," Smolinsky said. "The Air Force has invested over $1 million in his training; you don't grow field-grade officers overnight. We don't want to see Major Bates leave the Air Force."

The Department of Defense has ordered all 2.4 million active and reserve military personnel to be inoculated against anthrax because it is a chief toxin used in biological weapons. Those who refuse the vaccine and are victims of an attack, the government argues, put themselves and their comrades at risk.

In waiving the hearing, Bates noted that four of the Air Force's five witnesses scheduled to testify yesterday had medical backgrounds and no firsthand knowledge of the charge he faces, refusing a lawful order.

"The true purpose of the testimony of those witnesses was to further the Department of Defense's public relations campaign in support of the supposed safety of the anthrax vaccine," Bates said in his letter.

Maj. Timothy Murphy, the staff judge advocate at Dover, said the medical witnesses had interviewed Bates and could testify about education provided to the pilot regarding the vaccine as well as what he said, his demeanor and the willfulness of his refusal of the order.

Burke said that while the Air Force had witnesses with medical backgrounds ready to testify, Bates would have probably been precluded from calling witnesses who told him about the ill effects they suffered from the inoculation - what Burke called Bates' "unofficial education, anecdotal education" about the vaccine.

Lt. Col. Thomas Luna, an Air Force doctor at Dover, said yesterday that the vaccine was safe and that a 1999 Mayo Clinic review of the inoculation program at the Delaware base gave the program high marks.

"Anthrax kills people, and the vaccine protects them," Luna said. "It's part of our job to protect our people."

Luna said that of the 1,500 people who received the vaccine at Dover, 71 filed a report of effects that might have occurred as a result of the vaccine. Those effects ranged from expected irritation at the point of injection to brief periods of flulike symptoms. There was no commonality in the 30 or so symptoms reported, he said.

Luna was one of the government witnesses scheduled to testify at the hearing.

In waiving yesterday's hearing, Bates said he believed there was no chance charges would be dismissed at preliminary stages of the judicial procedure.

"Since the decision to court-martial me was made long ago," he wrote, "I stand ready to face my accusers at trial."