The Walls Of Justice? It Is Time For Air Force To Come Clean And Stop Tarring Whistleblowers

Senior Airman Andrew Brown confronted a nightmare. A discharged airman from Fairchild AFB had gone berserk with a MAK-90 and done great harm. Brown had a handgun. When Dean Mellberg ignored orders to disarm, Brown fired and killed him from 70 yards. Five were dead, 22 wounded.

A Spokesman-Review examination (Oct. 2-3, 1994) showed Mellberg deeply disturbed and the Air Force dealing weakly with him until Brown’s shots. The Air Force seemed unable or unwilling to purge an ill, potentially dangerous member.

But for some, grief was colored by the knowledge that the tragedy was an anomaly, belying a more-pervasive and virtually opposite reality - a military all too deliberate in using false psychiatric charges to destroy good members who somehow cause “trouble.” Victims fear the service will use Mellberg’s case to justify even more cloistering, from public scrutiny and from civil-rights standards, of the injustices it commits against its own.

At special risk are those whose honorable actions embarrass or threaten to embarrass the service.

Two recent Northwest cases highlight the military’s habit of attacking those doing their duty too faithfully with “psychiatric” and other abuse.

In 1988, Army Sgt. First Class Paul Paine, heading Fort Lewis’ parachute-maintenance division, identified and reported pay and contract fraud involving superiors and even wives. The decorated veteran and highly -rated manager was bound in a straitjacket and smeared with psychiatric examination. His dog was poisoned twice, crippled and killed. His wife received threats she’d end up the same. The mailbox was bombed. So was the next one. Paine was made a janitor, desperately seeking help to no avail.

The Defense Department found Paine had suffered retaliation - a very rare admission - and an assistant secretary of the Army ordered Fort Lewis to restore Paine. Fort Lewis refused, shocking those thinking the military always obeys civilian authority. Finally, last year, cumulative press coverage took its toll. The Army Board for Correction of Military Records (BCMR) ordered Paine retired with two promotions, back pay and a medal. But no one has been punished.

Oregon National Guard Warrant Officer Gerald Naekel’s 1993-94 case was similar - blowing the whistle on financial irregularities, getting orders for psychiatric “evaluation” as thanks. The scandal rising from press coverage led then-Gov. Barbara Roberts to sack the Guard’s top officer and order reforms. Naekel, a pilot, had already been returned to duty and continues serving. He won no justice, but may have saved his career.

For one reason only - steady press coverage - Paine and Naekel became exceptions to the rule that such victims know only despair. The road to their “successes,” and to recent but toothless federal laws restricting military superiors’ use of psychiatric procedures, was paved with the unmitigated losses of many.

One was I, a former Air Force Academy cadet. My challenge to a false 1983 honor-code allegation put the officer who made it in enough jeopardy to prompt the service to resort to “medical” attack. Exposure of my case began with a 1989 Jack Anderson column written by Jim Lynch (now a Spokesman-Review reporter), just as a six-year campaign led the Air Force to overturn my discharge and acknowledge that the discharge stipulations “cannot be supported.”

Six more years of struggle to do something with this “victory” - including efforts by former Secretary of Defense Caspar Weinberger, my lengthy discussion with Air Force Secretary Sheila Widnall and a face-toface discussion with Attorney General Janet Reno - have brought nothing but dismay. I couldn’t even return to uniform despite repeatedly petitioning all five services; AFBCMR refused to enforce its own order despite federal law (10 USC 1552) requiring all federal officers to obey it.

He who vindicates himself to the system’s embarrassment is blacklisted for life.

No serviceman is safe from “psychiatric” cashiering. During Vietnam, USAF Col. Jack Broughton, earlier commander of the Thunderbirds and perhaps the best air-combat leader of the war, was thrown into mental hospital for righteously bucking corrupt bureaucrats in a sensitive matter involving the USSR. He went on to write best-sellers “Thud Ridge” and “Going Downtown.”

The Feres case

Neither Paine nor Naekel nor Broughton nor I has ever filed suit or been otherwise compensated. For almost two generations a legal precedent little known to the public but devastating in its logical and practical consequences has given the government virtually impenetrable immunity from liability for even the most egregious injustice. Feres vs. U.S. 135 (1950), bars servicemembers’ claims against the government for damage suffered “incident to service.” Chappell vs. Wallace, 462 U.S. 296 (1983), meanwhile, establishes that a “military member may not maintain a suit to recover damages from a superior officer for alleged constitutional violations.”

Two highly exceptional cases the government lost showed the frightening extent of its willingness to hide behind Feres.

Marine Warrant Officer Martin Gaffney, his wife, and two children were slowly killed by Mrs. Gaffney’s HIV-tainted blood transfusion in a Navy Hospital in 1981. Dying Mrs. Gaffney filed suit, to avoid a Feres defense against a claim by her husband. The government not only maintained Feres, it accepted no responsibility to make amends for the annihilation of the Gaffney family.

In June 1991, as Martin Gaffney sickened, $3.8 million was awarded to the surviving daughter’s trust fund. But only in October, days before Martin’s death, as major press coverage sank in, did the government give up the money.

On Oct. 13 I visited Martin’s bedside in Boston and looked at a man dying with the knowledge military-injustice victims share - our country cared not for him as he cared for it.

Army medical specialist Arlene Johnson volunteered blood at an Army-sponsored drive in 1986, only to be falsely informed she’d tested positive for HIV. The re-test also was negative, but the Army continued to inform Johnson she was infected - until well after she’d had an unwanted abortion for fear of infecting her baby. Years later she won a multimillion-dollar court order, but the government coldly maintained Feres. The judge found giving blood at a public drive was not “incident to service.”

The road to these “victories” too was paved by victims who got nothing. Army Sgt. James Stanley, given LSD in experiments without his knowledge and severely harmed, was refused any relief by the Supreme Court in 1987. Reason? Feres.

Most victims fade away into salvaging what they can of badly damaged lives. But enough injustice can push good people to the edge. Sooner or later a victim desperate enough for justice will resort to the same means as Mellberg. And if he or she is also shot it’ll be tragedy piled on tragedy.

Wholesale elimination of sovereign immunity would create an untenable flood of legitimate and illegitimate claims for an alreadyoverburdened court system. But the Senate must concur with repeated House votes and amend Feres - to allow victims of the services’ darkest injustices an avenue for redress from the country they loyally served.

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