Military branches are continuing to review cases of service members who refused a coronavirus vaccine without asking for an exemption as the Defense Department nullifies its pandemic-era immunization policies, defense officials told lawmakers on Tuesday.
Defense Secretary Lloyd Austin rescinded the vaccine mandate last month at the direction of Congress but defense officials testifying before a House Armed Service Committee subpanel said service branches are still evaluating how to deal with troops who had defied orders.
“This is a new process for us and something we’re trying to figure out and we’ve been working on it,” said Gilbert Cisneros, the undersecretary of defense for personnel and readiness. “It’s very important that our service members go and follow orders when they are lawful and there are thousands who did not and so those services are going through a process to review those cases to make a determination of what needs to be done.”
About 8,100 service members were separated after failing to request or receive a religious exemption or other accommodation from the vaccine mandate and then refused to get vaccinated after being ordered to do so, he said. More than 2 million service members, about 96% of the military, have received the vaccine.
Cisneros did not say how many cases are being evaluated, but Gabe Camarillo, the undersecretary of the Army, said there are “a number” of pending cases of individual soldiers who chose not to comply with a lawful order. . . . (read more on Stars & Stripes)
Background info re the COVID vaccine mandate was a “lawful” order:
These 8,123 servicemembers refused the vaccine on various legal and related grounds, to include:
Law — i.e., the vaccine actually administered to military personnel used is EUA-, not FDA-approved and thus not in compliance with the statutory need for informed consent/Presidential (not SecDef) waiver. (See Part 2)
Medical/Regulatory — i.e., disallowing prior infection/natural immunity is not in conformity with long-standing cross-service regulatory guidance.
Religious Accommodation Objection Based in Law — vaccine produced via use of aborted fetal cell tissue.
Safety. Personal assessment that known/unknown risks of vaccine don’t justify its known/claimed benefits.
These orders were routinely issued, in writing, by commanders — not subordinate personnel.
Bear in mind, Article 90, UCMJ (“Willfully disobeying superior commissioned officer”), in the Manual for Court-Martial, provides two important points:
The first is that the order is inferred to be lawful. “Inference of lawfulness. An order requiring the performance of a military duty or act may be inferred to be lawful, and it is disobeyed at the peril of the subordinate….”
The second is that a military judge must determine whether an order is lawful. “Determination of lawfulness. The lawfulness of an order is a question of law to be determined by the military judge.”
One would think willfully failing to obey a critical written order, given by one’s commander, just might get one of the 8,123 servicemembers a nonjudicial punishment action — which includes the right to demand a court-martial in response — or an outright court-martial.
But NO. It is (circumstantially) clear DoD made/communicated a deliberate decision to NEVER allow the legality of the orders to receive a Covid-19 vaccine to be argued, before a military judge, in the public setting of a court-martial. Every one of these 8,123 servicemembers faced administrative censure and administrative involuntary discharge.
So yes, these orders are “inferred” to be lawful. And that remains a hollow/unexamined/untested talking point.
The Administrative Procedures Act, 5 USC Sec. 701, prohibits federal agency action (including certain military policies) that is arbitrary, capricious, and contrary to law or regulation.
The mandate violates a federal statute
• A federal statute, 10 USC Sec. 1107a, states that a product (as defined in the Food Drug and Cosmetic Act, and which includes vaccines) that has been designated for emergency use ( an “EUA” product) under FDA requirements may only be administered to servicemembers without their informed consent after the president has issued a specific waiver of that requirement for that specific product.
• No presidential waiver has been issued for any COVID vaccine, emergency use, or otherwise.
• The Secretary of Defense’s 24 August 2021 Memorandum directing all service members, including Reserve and Guard members, to be inoculated against COVID- 19 states that only products that are fully licensed by the FDA will be used.
• In its 23 August 2021 BLA licensing letter to Pfizer, the FDA noted that notwithstanding the similarities between the EUA Pfizer COVID vaccine and the FDA-licensed Pfizer COVID vaccine calledCOMIRNATY, the vaccines remained legally distinct.
• The FDA has never designated (using its regulatory process) a substitute or interchangeable vaccine for Pfizer’s COVID- 19 vaccine, COMIRNATY.
• At the time of FDA’s licensing letter to Pfizer and for at least nine months thereafter, there was no licensed, Pfizer-manufactured (or any other FDA-licensed), COVID-19 vaccine available in the United States. In litigation with various mandate challengers, the US Department of Justice admitted that what it believed to be “licensed” vaccine only became available around 22 May 2022.
• In policy discussions between DoD and Air Force officials concerning “Proposed Directive-type Memorandum Mandatory Vaccination of Service Members using the Pfizer-BioNTech/Comirnaty® Coronavirus Disease 2019 Vaccines” in October, 2021, DoD officials noted that the vaccine being offered to service members was EUA, but rejected the option of offering licensed vaccine because that option would create problems for the punitive actions already being undertaken against service members who refused the EUA vaccine.
The mandate violates DOD regulations
• Joint Services Regulation, “Immunizations and Chemoprophylaxis for the Prevention of Infectious Diseases,” October 7, 2013, issued as Army Regulation (AR) 40-562, Air Force Instruction (AFI) 48-110_IP, and Coast Guard Commandant Instruction (“COMDTINST”) M6230.4G,requires that service members be assessed for preexisting immunity prior to receiving mandatory vaccinations.
• The Secretary of Defense’s 24 August 2021 memorandum specifically stated that a service member’s pre-existing immunity was not to be considered in requiring COVID-19 vaccinations.
Review under the Legal Standard of the Administrative Procedure Act
The Secretary of Defense’s 24 August 2021 Memorandum violates the Administrative Procedures Act because it requires vaccination with an EUA vaccine in violation of 10 USC 1107a, and because it directs the services to ignore the requirements of the Joint Services Regulation to assess preexisting immunity before inoculating servicemembers. Accordingly, the DoD vaccine mandate program can be enjoined under the APA because at the time the Memorandum issued, it conflicted with federal law and regulation.
Lawful Defense Under the UCMJ
• The Manual for Courts-Martial, Paras. 16c.(2)(a)(iv) and 18c.(1)(c), states that showing that an order violates a federal statute is an absolute defense to a charge of failure to follow an order. In other words, orders that violate federal statutes are illegal,per se.
• The Secretary’s Memorandum clearly violates military law. DoD’s deliberate failure to use a licensed vaccine in the program effectively renders the orders to take the COVID-19 vaccine illegal because the orders are in violation of 10 USC 1107a; i.e., service members are not being advised that they may refuse the shot because the vaccine is in EUA status and there is no presidential waiver in place relating to the EUA COVID-19 vaccine.
• While no courts-martial have convened for vaccine refusals, the two administrative discharge boards to consider the legality of the vaccine mandate-one in the Navy and one in the Air National Guard-have both determined that the vaccine mandate program was improper and that the service members involved were not violating orders when they refused inoculation. See,
Navy lieutenant who refused vaccine cleared of misconduct, will remain in service
Air National Guard board finds military’s shaky COVID vax mandate unlawful, as West Point holds out
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