Rebuttal by Mike Rose to Legal Opinion by Skip Morgan

Ladies and Gentlemen,

Attorney Skip Morgan posted on the USAFA AOG Basecamp site his memorandum below and in the attachment about the “ROLE OF AOG IN DOD, USAF, USAFA POLICY.” My rebuttal to his statements are embedded in red lettering among his statements.

I am sending this to you:

• To request that you send me any comments, especially any corrections, you have to what is stated below and attached;
• To describe the divide on the issues described below and attached about the proper role of the AFA AOG; and
• To point out that Skip was given special access to AOG directors to read his memo below and attached by the AOG allowing his memo to be posted on the AOG’s Basecamp site, without similar, equivalent access on that Basecamp site being offered or provided to rebuttals to Skip’s memo.

It appears that AOG directors are relying on legal advice from one lawyer, Skip Morgan, never approved by the AOG BOD as an attorney for the AOG but given special access to the AOG directors, without giving equal access and consideration to the opposing views of other attorneys who are AOG members.

Mike

Michael T. Rose, JD/MBA
Executive Vice President and General Counsel
Stand Together Against Racism and Radicalism in the Services, Inc.
mission@starrs.us

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ROLE OF AOG IN DOD, USAF, USAFA POLICY

(Written by attorney Skip Morgan, rebuttal by attorney Mike Rose in bold red)

DEI Legal Basis:

• FY 2022 NDAA required Service Academies to conduct DEI training programs addressing racism, discrimination and harassment.

• FY 2021 NDAA required a DoD Chief diversity officer and senior advisors for DEI.

• 25 June 2021 Pres. Biden signed executive order to strengthen and advance diversity, equity and inclusion throughout Federal Government

• AFI 1-1, para 1.9, 18 August 2023, “DEI will strengthen readiness,” See AFPD 36-70, “Diversity and Inclusion” AFI 36-7001 “Diversity and Inclusion”
  • All of the above constituted either a written order from the commander in chief or the civilian chain of command, or a lawful general regulation, the disobedience of which was actionable under either Article 90 or 92 of the UCMJ.

I do not know if the NDAA and AFI provisions cited above are correct.  I would not be surprised if they are.

• • DEI training was never held to be unlawful – in fact Supreme Court in condemning racial preferences in admissions to colleges and universities left open the possibility that it might be permissible for the service Academies; SFFA v. Harvard, 600 U.S. 181 (2023)

To ensure precision and clarity, the Supreme Court said in a footnote that it was not ruling in SFFA v Harvard whether race could be considered as a factor determining who is admitted to service academies because no evidence had been provided and no argument had been made, pro or con, about that issue in the SFFA v Harvard case.

The Supreme Court did not indicate that it did or did not favor allowing or not allowing race to be considered regarding admissions to a service academy; it merely said it was not deciding  that issue because no argument or evidence on that issue had been presented to the court.

Further, the SFFA v Harvard case was entirely about admissions, not training, and therefore provided no opinion about whether DEI training might or should be allowed at a service academy.

• • Thus, encouraging disobedience, disregard, or resistance to orders by those subject to the UCMJ would be entirely inappropriate for the AOG.

I know of no one who ever has suggested that the AOG should or may encourage disobedience, disregard, or resistance to lawful orders by those subject to the UCMJ.  It would be inappropriate for the AOG to do so and the AOG should not do so.

Further, I do not think it is an appropriate role for the AOG to encourage disobedience of even an unlawful order.  That should not be the role of the AOG, for a number of reasons.

The AOG could advise AFA leadership that a significant number of AOG members think an order is illegal or inappropriate IAW the requirements in the Articles and Bylaws that the AOG collect and inform AFA leadership about AOG members’ opinions.  This is allowed/required by the AoI and Bylaws, but encouraging disobedience is not.

Also, I think the statement “Thus, encouraging disobedience, disregard, or resistance to orders by those subject to the UCMJ would be entirely inappropriate for the AOG” is a non sequitur following the preceding sentences. Whether encouraging disobedience of an order is a proper role for the AOG has nothing to do with whether courts say it is lawful for training or admissions to be based on race.

• All service academy superintendents endorsed DEI in July of 2023, (Lt Gen Clark at USAFA)
  • USAFA cadets got 16+ hours of DEI training—training mandated by Congress.

COVID Vaccines:

• Executive Order 14043 22 Nov 2021 mandated federal employees be administered the vaccine

• SecDef order of 24 Aug 2021 applied to all military personnel

• Mandatory vaccination has been permissible since 1777 when George Washington ordered smallpox vaccinations.

This statement is misleading by omission.  Yes, General Washington ordered smallpox vaccinations, and they were successful. But unlike regarding the anthrax and the military’s COVID vaccine mandates, there were no laws (statutes, regulations) or court decisions regulating/limiting the authority of the military to mandate that soldiers take a vaccine.  General Washington had no limitation on his authority to mandate the vaccine.

A federal judge (partisan Democrat) issued an injunction shutting down the military’s anthrax vaccine mandate/program based on its finding that the vaccine had not been approved by the FDA as required by law.

In addition, I counted eight separate federal court decisions issuing or upholding injunctions against the military based on court findings that the COVID vaccine mandate violated the federal Religious Freedom Restoration Act.

In addition, the Secretary of War has issued a memorandum stating that the COVID vaccine mandate was “illegal as implemented.”

In addition, POTUS Executive Orders say the COVID vaccine was unfair and unjust.

These authorities show the military violated laws the military was required to obey, when the military required thousands of military members to take the COVID vaccine or punished them if they did not, in violation of their statutory rights (including the right to take the vaccine after giving informed consent).

Recognition of those facts is why the military is providing remedies to service members harmed for refusing to take the COVID vaccine, IAW POTUS Executive Orders and SOW orders. 

• Although various courts have held the various vaccine mandates as implemented to be unenforceable (principally on the failure to consider fairly requests for exemption on religious or moral grounds), none has held it to be unconstitutional.

Even if it was constitutional, it likely was illegal, in my opinion, because of violations of statutes stated in a lawsuit (pleadings available on request) filed in federal district court in Charleston, SC, by another AFA graduate, Lou Michels (who had obtained the injunction shutting down the anthrax vaccine mandate) and me.

Lawsuits were filed making reasonable claims that the COVID vaccine had not been approved as required by law, as occurred regarding the anthrax vaccine, but no court to my knowledge decided the merits of those claims.  The failure to have decided does not mean the claims were not valid.

• In 2023 Pres. Biden rescinded vaccine mandate, but the executive order included the following language announcing that the rescission would not create . . .
  • • “any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.”
      • This language was intended to preclude lawsuits, class actions or other recourse on the part of federal employees who were adversely affected by the mandate while it was in effect.

SecDef Austin, not President Biden, is the authority who rescinded the COVID vaccine mandate in a 10 Jan 23 letter—only because Congress mandated the government do so in the FY 2023 NDAA.  STARRS, listening to the input of graduates and cadets, was part of the “collective we” that communicated a list of significant concerns to members of Congress and the media.  Those concerns drove Congress to act.

We would have welcomed the AOG to have been a part of those organizations standing up for our military community.  Our communication with the USAFA Supe on this issue was also only to communicate those concerns we were hearing from our constituents and keep him appraised of the different court orders that were coming down all declaring the government itself was breaking the laws of our land (The Religious Freedom Restoration Act and the laws on the books regarding mandating “informed consent” in the way they were implementing the mandate).

We communicated these concerns as two JAGs still serving the USAF told us the JAG Corps had essentially been muzzled—speaking up against the mandate was not allowed and leadership might not be getting updates/ground truth.

Those conversations most often began with words like “Gen Clark—we know you are not the decision maker here, but did you know….”  Some in the know have shared with us that Gen Clark broke the tie in an Academy Board vote to determine if unvaccinated cadets should be expelled of not.

All 16 cadets were allowed to stay and eventually graduated.  Perhaps our interaction with him helped saved those careers?

At no time was there any encouraging disobedience, disregard, or resistance to orders by those subject to the UCMJ as is implied herein.

This is the type of activity – keeping AFA leadership informed – that clearly the AOG could (and should) be participating in if we want to support our graduate community and cadets.     

• 23 April 2026 SecWar promulgated a directive to the Service Correction Boards to expedite handling of applications by servicemembers adversely affected by mandate  (see attached)

Role of AOG w/r/t COVID 19 and DEI

• Since both the vaccine mandate and the requirement for DEI training were lawful orders,  It has not been determined by any court that the COVID vaccine mandate was lawful.  Lawyers who obtained the injunction shutting down the military anthrax vaccine mandate because it was unlawful say/think the COVID vaccine mandate also was unlawful.  Maybe it was and maybe it was not.  both stemming from the commander in chief and in the case of DEI training, from the U.S. Congress as well.

The AOG must not encourage disobedience or resistance regardless of our opinion on their soundness or advisability.  Issues are being wrongfully CONFLATED.  The issue of whether the vaccine order was lawful is separate from what the AOG should do about the order, if anything.

mks_highlight color=”#ffff7c”] I know of no one who thinks the AOG should encourage disobedience or resistance to any military order, whether lawful or not.[/mks_highlight]

In my opinion, it is not the proper role of the AOG to encourage disobedience of an order or to “tell the  Superintendent what to do.”

What the AOG could do, and what would be appropriate for the AOG to do, would be to keep AFA leaders informed for AFA graduates’ perspectives/views about that issue and other issues, and to promote a professional dialogue among AFA graduates about AF issues, as required by the Articles of Incorporation of the AOG.

• This includes joining in or supporting litigation in which the Air Force, the Academy, DoD, etc. is the defendant or respondent, since it would put the AOG in an adversarial position.

I agree. All of the words/analysis above are arguing for positions that no one I know advocates the AOG take.  The AOG should not advocate disobedience of any order and should not sue or be in an adversarial relation with the AF, the AFA, DoD, etc.

What the AOG BOD should do is exactly what the Articles of Incorporation and Bylaws say the AOG should do about keeping AFA leadership informed of AFA graduates (or was it AOG members?) perspectives/views about the AFA and to promote a professional dialogue among AFA graduates (or was it AOG members?).

• “[B]y swearing an oath to the Constitution, military officers are not pledging allegiance to a vague idea—they are pledging fidelity to the actual, living document, including its amendments and the laws passed under its framework. Orders issued in accordance with this system are lawful and must be followed. It is not for military officers to decide which laws are valid or desirable. In a democracy, if the people dislike a law, they elect officials to change it. That’s the process. To bypass that system is not to defend the Constitution; it’s to abandon it.”  Smith, Jason  The Dangerous Appeal of Military Insubordination | Lawfare  August 5, 2025, National War College

Again, no one I know has advocated that the AOG encourage disobedience of an order. Therefore, why is this paragraph being quoted?

• The AOG is on-site at a federal installation, occupying buildings and utilizing infrastructure support at the sufferance of the Superintendent:
  • 10 U.S.C. §2246:  Superintendent authorized to permit support of AOG provided . . “it does not compromise the integrity or appearance of integrity of any program of the military department concerned, or any individual involved in such a program;”
  • In implementing and enforcing DEI and vaccine mandates, the Superintendent was following lawful orders, so AOG taking a position contrary to those orders would unquestionably “compromise the integrity or appearance of integrity of the programs.”

WHY IS THIS MEMO ARGUING THAT THE AOG SHOULD NOT ENCOURAGE DISOBEDIENCE OR COMPROMISE THE INTEGRITY/APPEARANCE OF INTEGRITY OF ANY PROGRAM OF THE MILITARY DEPARTMENT CONCERNED, WHEN NO ONE HAS ADVOCATED DOING ANY OF THAT?

Again, what is being advocated is that the AOG follows its Articles of Incorporation and Bylaws by keeping AFA leaders INFORMED of AOG members’/AFA graduates’ views/perspectives and promoting a professional dialogue about AFA related matters.

What Can We Do?

• Because Sec Hegseth has not given blanket amnesty, but has used the Service Boards for Correction of Military Records as an adjudicative mechanism, we have an opportunity to help
  • AFBCMR established under 10 U.S.C. §1552, requires submission of DD Form 149
  • Process can be lengthy (years!) cumbersome, and frustrating
  • AOG could reach out to various chapters to find graduates experienced in processing AFBCMR applications to help cadets/graduates through the process

Starting last August I arranged for my former law client, Matthew Lohmeier, UnderSecretary of the Air Force, to have requests for remedies due to the COVID vaccine mandate or DEI to be processed on an expedited basis by the AFBCMR.  A GS-14 is assigned to take cases I provide to her.  I have provided her many, and she keeps me informed of their status.

At my peak I had 209 cases of former or current members seeking remedies at all academies and in all services.  I now have about 160, of which about 70 are Air Force cases.  I literally cannot get to them fast enough.  I need help to help them.

The AOG could and would provide a great service if the AOG informed AOG members that help is needed to help AF members, including AFA graduates, seeking remedies due to the COVID vaccine mandate and/or DEI, and invite AOG members wanting to help to inform the AOG or me of that fact.

I have the cases and the process set to expedite them, but I do not have the people power needed to handle them timely.  Being a lawyer or former JAG is helpful, but investigations and fact gathering could be done by non lawyers.

• More broadly, AFBCMR has been broken for a considerable period of time   ABSOLUTELY AGREE – the AOG could help raise awareness of the problem through kindred political organizations, such as the BOV, Air Force Association, MOAA, and STARRS.

AGREE that the AOG can help raise awareness of the problem with other non profit organizations.  In fact, an AOG bylaw requires the AOG to work with non profits having missions/values consistent with that of the AOG.

I do NOT AGREE that the Air Force Association, MOAA and STARRS are “political.”  STARRS is a 501C3 non profit that, according to its AFA grad tax attorney with an LLM in Tax from NYU, cannot support or oppose a political candidate or party but can support or oppose a political idea consistent with its purpose/mission.

Advocating for changes to AF, SP, AFA policies internally within the military is not a violation of the IRS or Hatch Act prohibitions against being political.

Further, a 501C3 can lobby with legislators for legislation supporting its mission/purpose, within parameters.

The provision in the AOG’s Articles of Incorporation prohibiting the AOG from supporting or opposing a political “idea” is unnecessary, overly broad, applied inconsistently, and the only such provision in any Colorado non profit’s AoI and probably in the US.

• Reforms to the AFBCMR would be a tangible and significant assistance to graduates and cadets alike, while at the same time being entirely apolitical and non-adversarial.

AGREE.  But I go further.  The AOG can, and should, be ADVOCATES for AFA graduates/AOG members on a case by case basis.

Regarding the above, for example, the AOG BOD could ADVOCATE that targeted amnesty be provided to military members, that remedies be expedited, and other improvements.

The BOD can and should exercise judgment about what is and is not appropriate to advocate, and how, but not reflexively reject any idea on the ground that it is a “political idea.”   That can be done through the ECC committee and in conjunction with other entities like the BOV, AFA, MOAA and STARRS.

As an example of how the AOG could help its members, I got the AOG BOD to pass a resolution asking President Trump to restore the promotion to M/Gen of  B/Gen Terry Schwalier, my law client and former Commander at Khobar Towers, Saudi Arabia, when it was blown up.  My production of that signed resolution visibly impressed the Air Force Assocation, MOAA, the SC Republican Party and other organizations, and induced them to pass similar resolutions. While that effort did not succeed during President Trump’s first term, for various reasons, it still might. 

The point is that the AOG BOD has a lot of political capital that I was able used with that BOD resolution to benefit an AFA grad and that garnered a lot of gratitude from a lot of AFA grads and others in the process. 

The AOG BOD could expend its capital in a similar matter on other issues, on a case by case basis, thereby improving outcomes/processes and its standing among AOG members.

As another example of what the AOG could do, the Secretary of the Air Force has appointed me as one of five members to work with the BOV to enable the BOV to advise the Secretary of the AF, the Armed Services Committees and the President on how to improve the AFA cadet discipline/honor/disenrollment systems.  This is an unprecedent opportunity to propose reforms/changes to these systems, about which the BOV has received many complaints. 

I think the AOG should solicit input from AOG members/AFA graduates on what changes, if any, should be made. Somebody out there might have a good idea.  Further, comments by the BOD might be very persuasive.  The AOG BOD should participate in this.

I believe AOG members would support and feel better about the AOG if it perceived the AOG was advocating for cadets and AFA graduates instead of mostly, as many now perceive, building buildings, sponsoring social events like tailgates, giving awards and raising money.