The opinion of the court was delivered by: James Robertson United States District Judge
Plaintiffs Thomas L. Rempfer and Russell E. Dingle*fn1 were officers and pilots with the Connecticut Air National Guard ("CTANG"). Their complaint alleges that they were forced to resign after they refused to comply with an illegal order to be vaccinated for anthrax. Under the Administrative Procedure Act and the Declaratory Judgment Act, plaintiffs seek judicial review of their underlying terminations and of the orders of the Air Force Board for Correction of Military Records ("AFBCMR") denying their applications for record correction and other relief. Pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6), the defendants move to dismiss the complaint. For the reasons explained below, that motion will be granted in part and denied in part.
In December 1997, the Department of Defense announced a policy under which all members of the armed forces would be vaccinated for anthrax. Compl. at ¶ 5. The Anthrax Vaccination Immunization Program ("AVIP") went into effect in March 1998.
Id. at ¶ 6. Colonel Walter Burns, the Wing Commander of plaintiffs' CTANG unit, assigned Rempfer and Dingle to Tiger Team Alpha, whose job it was to investigate the AVIP "in order to allay unit concerns." Id. at ¶ 8. The Tiger Team raised concerns about what it characterized as the off-label, experimental and investigational use of Anthrax Vaccine Adsorbed ("AVA") against inhalation anthrax. Although these concerns were relayed up the chain of command by Colonel Burns, questions that Rempfer and Dingle had raised about the efficacy and safety of the vaccine were never answered to their personal satisfaction. Faced with an order to be vaccinated or be disciplined, both plaintiffs sought reassignment from CTANG to the U.S. Air Force Reserves. Rempfer was honorably discharged from CTANG on March 25, 1999, as was Dingle, on April 3, 1999. Both were immediately transferred to the Air Force Reserves.
The final Officer Performance Reports ("OPRs") completed by plaintiffs' superiors at CTANG prior to their discharges made no reference to their duties on Tiger Team Alpha or to their objections to the anthrax vaccination program. Following their discharges, both plaintiffs filed applications with the Air Force Board for Correction of Military Records asserting that the anthrax vaccination program was illegal and that they had been improperly discharged due to their refusal to be inoculated. A.R. 0003TLR-0010TLR; A.R. 0004RED-0008RED. Both requested amendment of their OPRs to reflect their duties with Tiger Team Alpha as well as compensatory relief for back pay and lost promotions. Rempfer also sought reinstatement as a CTANG pilot. In support of their contention that the vaccination order was illegal, both applications relied upon Doe v. Rumsfeld, 297 F. Supp. 2d 119 (D.D.C. 2003), in which Judge Sullivan enjoined the Department of Defense from proceeding with involuntary anthrax vaccinations based on the conclusion that, as of December 2003, AVA had not been licensed or approved for use against inhalation anthrax.
The AFBCMR denied both plaintiffs' applications for record correction. In a letter dated April 25, 2005, the AFBCMR informed Rempfer of its conclusion that there was insufficient evidence of error or injustice to warrant amendment of his OPR and that it lacked authority to reinstate him in the CTANG. Compl. ¶ 20; A.R. 0008TLR-0009TLR. The Board stated the following in regard to Rempfer's constructive discharge claim:
[T]he Board notes [that] the Chief, Administrative Law Division, states that Doe v. Rumsfeld is still being litigated. Therefore, it would not be prudent for the Board to take any other action on this application until the litigation has been finalized. Should the plaintiffs prevail against the Secretary of Defense, the Board would be willing to reconsider the applicant's requests.
Therefore, we find no compelling basis at this time to recommend granting the relief sought in this application.
A.R. 0008TLR- 0009TLR. Dingle's application was denied on the same grounds on March 6, 2006. A.R. 0003RED-0007RED. Both plaintiffs filed for reconsideration, and were notified in March 2007 that their claims had again been denied. Pls.' A.R. 0018RED-0020RED.*fn2 In these decisions, the Board noted developments in the Doe v. Rumsfeld litigation and concluded that the Doe plaintiffs "did not in fact prevail against the Secretary of Defense." Pls.' A.R. 0006TLR; Pls.' A.R. 0020RED. As such the Board found "no compelling basis to recommend granting the relief sought in this application." Id. On April 20, 2007, plaintiffs filed their first amended complaint in this case, seeking APA and Declaratory Judgment Act review of their underlying discharges and of the AFBCMR decisions denying their applications for record correction and other relief.
Background on the AFBCMR and on the contours of the Doe v. Rumsfeld litigation is needed in order to put the plaintiffs' claims in context.
The AFBCMR is a civilian board that is empowered under authority delegated to it by the Secretary of Defense to amend military records. 10 U.S.C. § 1552. Records may be corrected when "necessary to correct an error or remove an injustice." Id. at § 1552(a)(1). The Board "normally decides cases on the evidence of the record." 32 C.F.R. § 865.2c). Although it is not an investigative body, the Board may, in its discretion, hold hearings or call for the submission of additional evidence. Id. In proceedings before the ...