MILITARY : 2 Marines Challenge Pentagon Order to Give DNA Samples : Defense Dept. says its goal is to identify bodies in wartime. But enlisted men tell court their privacy is being violated.

For Cpl. Joseph Vlacovsky, it was a spur-of-the-moment decision. “I had the feeling that something wasn’t quite right,” the soft-spoken young Marine recalls.

He was having a routine medical exam at the Marine base at Kaneohe Bay before being deployed with his unit. When the medic told him the military needed samples of his DNA, the corporal balked.

On the same day, fellow Hawaii Marine Lance Cpl. John C. Mayfield III also refused to provide blood and tissue samples. Now both men face court-martial for disobeying a direct order and could be subject to six months in prison and a bad-conduct discharge.

Their refusal has plunged the pair into a “1984” debate over genetic testing and privacy rights that may have ramifications far beyond their individual fates. Their lawsuit challenging the constitutionality of the Defense Department’s mandatory DNA collection program is now in the U.S. 9th Circuit Court of Appeals and could eventually reach the Supreme Court.

“I expected to give up some privacy when I joined the military, but not something I held so close,” said Vlacovsky, a 25-year-old from Canton, Ohio, who enlisted to earn money to finish college.

“Our contract says defend and uphold the Constitution,” added Mayfield, 21, of Dallas. “It doesn’t say we hereby waive our constitutional rights.”

Before the two Marines’ names were called this year, more than 1 million service members across the country had provided samples of their blood and cheek cells for the DNA Identification Program. Their specimens are stored at a vast registry in Gaithersburg, Md., established by the Armed Forces Institute of Pathology in hopes of easily identifying future battlefield casualties.

DNA, or deoxyribonucleic acid, is a complex protein that contains an individual’s unique genetic code.

Specimen collection began in June 1992, after the Persian Gulf War. By the year 2001, about 4 million samples from all active and reserve members of the military should be on file. Although some states maintain DNA files on convicted felons, this is the most massive DNA database ever undertaken. The registry will hold 18 million specimens at full capacity, because each will be kept for 75 years.

While critics see it as a lurch toward Big Brother, the military considers the databank as a crucial means of accounting for war casualties in an era of increasingly destructive weaponry.

“Traditional dental and fingerprint records simply will not identify everybody,” said Lt. Col. Victor Weedn, program manager for the DNA Registry. “In Operation Desert Storm, a quarter of all those killed in action were fragmented remains. . . . It is our hope that the DNA Registry will make the Tomb of the Unknowns a thing of the past.”

Mayfield and Vlacovsky, however, are more concerned about what might happen to their DNA while they are alive. The two men raise a specter of possible abuse of the information contained in their DNA--from job or health insurance discrimination on the basis of genetic traits to use of their samples without their consent by medical researchers or the FBI.

The burgeoning field of genetic research holds great promise for uncovering causes and possible cures for disease such as cancer. DNA specimens also have helped further criminal investigations. For example, in the World Trade Center bombing, saliva on an envelope helped link a suspect to the case.

But such information can be misused. Articles in professional journals on genetics and public health have documented discrimination against healthy people whose families happen to have “bad genes.” One man was denied a job because his brother had Gaucher’s disease, which causes an enlarged spleen; a woman and her co-workers were denied group health coverage because her husband had hemochromatosis, an iron metabolism disorder.

In the 1970s, the Air Force prevented people with a single sickle-cell gene from becoming pilots, although two copies of the gene are needed for the anemia disease to develop. Mayfield noted that the military also has exposed troops to radiation, LSD and Agent Orange, a record that he feels doesn’t inspire confidence when it comes to DNA collection.

“It’s your genetic blueprint, how you’re created,” Mayfield said. “With your DNA, you’re getting all of your physical characteristics, possibly some mental and emotional characteristics, diseases you may be susceptible to in the future. . . .

“They are going to keep it for 75 years and give us no guarantees. . . . When you get out of the military, you’re supposed to get all your rights back, including your privacy.”

Although the military initially intended to destroy specimens as each soldier was discharged, it later concluded that would be impractical. Oral swabs are kept in vials containing isopropanol; bloodstain cards are vacuum sealed and frozen.

The district court in Honolulu dismissed the Marines’ complaint as based on “hypothetical” concerns. In his September opinion, Judge Samuel King noted that access to the registry is strictly limited and said that because the military has no plan to use DNA specimens for research, the standard medical consent normally required for human tissue studies is unnecessary.

The judge concluded that DNA sampling is a “minimal intrusion” justified by the “compelling interest” that the military has in accounting for the fate of service members, both for its overall mission and for next of kin.

The plaintiffs filed their briefs with the 9th Circuit earlier this month. The government’s briefs are due next week, and oral arguments will be scheduled after that. Plaintiffs’ attorney Eric Seitz calls the registry “the greatest threat to privacy that I’ve ever seen.”

But Weedn is frustrated by what he sees as “hysterical fear” about potential abuse of the registry.

“When you’ve licked the stamp on your tax return, you’ve sent the government a DNA sample,” he noted. “At some point you have got to have some trust in your government. You cannot have the government cease to function for fear that it may do something wrong.”

The 1993 policy statement establishing the registry says the DNA samples are to be used for identification of remains, except in “extraordinary circumstances” approved by the assistant secretary of defense for health affairs. DNA also is extracted from specimens for limited quality assurance testing. Statistical data from that process may be used for research and education. All records are to be treated as confidential medical information.

Critics aren’t so sure. The Council for Responsible Genetics, a nonprofit bioethics group based in Cambridge, Mass., filed an appellate brief on behalf of the two Marines describing the genetic database as “dangerously lacking in procedural safeguards.” It noted that the policy doesn’t specify what circumstances would justify release of a DNA specimen for uses other than body identification, nor does it provide for notification of the donor.

“What makes it so intrusive is the wealth of information that you can get from it,” said Toni Wolfman, attorney for the council.

Weedn declined to speculate on what extraordinary circumstances might prompt an assistant secretary of defense to allow release of a DNA specimen, but allowed that “this is not somebody who’s going to make a decision on a whim. . . . There was just a recognition that there might be a rare case where that might happen.”

The government also points out that military enlistees should expect a different standard of privacy than civilians. The case of Doe vs. Sullivan allowed the armed forces to administer to Desert Storm troops, against their will, drugs not approved by the Food and Drug Administration that were believed to counteract the effects of biological and chemical weapons.

“If the military’s use of unapproved drugs on its personnel does not require informed consent, surely the vastly less intrusive practice of collecting and storing blood samples and oral swabs for possible use in identifying human remains does not require informed consent,” Assistant U.S. Atty. Theodore G. Meeker argued.

Requests by Mayfield and Vlacovsky for honorable discharge have been turned down, despite exemplary records. They have been reassigned from their signals intelligence jobs to routine desk work, and they forfeited $3,000 when they were kept back from deployment with their unit.

Despite the punishment that may await them, Mayfield and Vlacovsky feel they are in a better position to challenge the policy than some of their colleagues.

“We’re single,” Mayfield said. “We have no real obligations, unlike guys who are married or have children or large debts.” Both are working part-time jobs to help pay their legal expenses.

“‘We have things to lose,” Vlacovsky added, “but by giving the samples, we feel we have a lot more to lose.”