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Marines Who Refused to Provide DNA Samples Are Court-Martialed

April 15, 1996

HONOLULU (AP) _ A court-martial opened Monday for two Marines who refused to give blood samples for a DNA registry designed to help the Pentagon identify servicemen’s remains.

Cpl. John C. Mayfield III, 21, and Cpl. Joseph Vlacovsky, 25, fear the ``genetic dogtags″ could be used against them in the future, and say the order is unconstitutional.

Marine Capt. Scott Peterson, the prosecutor, said Monday that the order only related to military duty and any constitutional questions could be addressed separately.

``It is not our burden to prove whether the order is lawful,″ he said, just whether the men disobeyed a direct order.

The prosecution rested Monday after two witnesses, Lt. Col. Richard Monreal, the two men’s commanding officer, and Chief Hospitalman Mark Crippen, an enlisted superior, both testified that the men had several opportunities to obey the order. Both said they never thought to question the constitutionality of the DNA program.

Monreal said he had offered to handle the problem through a nonjudicial process but both Marines told him they preferred to go through a full court-martial.

Defense attorney Eric Seitz has said the order to submit blood samples was unlawful, and the American Civil Liberties Union of Hawaii has agreed, citing the Fourth Amendment protection against unreasonable searches.

The law is clear that mandatory ``taking of blood and bodily fluid constitutes a search, and is therefore subject to scrutiny,″ said Vanessa Chong, executive director of the ACLU.

The defendants plan to call as an expert witness the co-author of a study that found that many people with genes linked to certain diseases have been discriminated against by insurance companies, employers and others.

The Marines face six months in jail and a dishonorable discharge if convicted of willfully disobeying an order. The non-jury trial got under way before a military judge at Kaneohe Marine Base.

They have also filed a class-action lawsuit to stop the program. That case is pending before a federal appeals court.

The Pentagon has been collecting DNA samples from service members for three years and has stored more than 1 million specimens in Gaithersburg, Md.

The plan was to save the samples for 75 years for use in identifying remains. But because of the legal challenge and congressional pressure, the Pentagon announced last week it will keep the samples for only 50 years, strictly limit the circumstances under which they can be released, and allow personnel to have their specimens destroyed when they leave the service.

Dr. Paul Billings of the Stanford University School of Medicine, who will testify for the defense at the court-martial, said that the Pentagon program still lacks safeguards to protect people’s privacy.

``This is the very first case of anybody in the United States being threatened with jail time and potentially a fine for not contributing to a DNA bank,″ Billings said.

Billings co-authored a study published in Science and Engineering Ethics that said 455 of 917 people who responded to a questionnaire reported they had been discriminated against for genetic reasons. Although not sick, they lost jobs, insurance, chances at adoption and educational opportunities.

Eleven states have passed laws making it a crime for insurers or employers to discriminate against people because of their genetic makeup. Twenty other states and Congress are considering such legislation as scientific breakthroughs make it easier to identify genes linked to disease.

Another service member, Air Force Sgt. Warren Sinclair, faces a court-martial April 25 on the same charge for refusing to give blood for a DNA sample.

Sinclair, stationed at Scott Air Force Base in Illinois, told The New York Times he felt the order violated his constitutional rights. ``I put a high value on my genes,″ he said.

Seitz said he expects the corps will punish his clients.

The Marines ``feel the need to make an example out of my clients,″ he said. ``And I’m not surprised. They are the military.″

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