DOD STARRS Authors Vax

Status of Vaccine Refusers & DoD/Service Policies

By Tracey Meck, Colonel, USAF (Ret)

Newsletter Editor and Chief

The FY 23 NDAA rescinded the COVID-19 vaccine mandate in the DoD. Accordingly, on January 10, 2023 the Secretary of Defense issued a letter rescinding the August 24 and November 30 2021 letters that established the vaccine requirement for the armed forces.

In spite of the mandate’s rescission, the memo stated that the DoD would “continue to promote and encourage COVID-19 vaccination for all service members.”

The letter went on to give commanders some leeway by stating vaccination enhances operational readiness and protects the force and “commanders have the responsibility and authority to preserve the Department’s compelling interests in mission accomplishment.”

As part of this, Secretary Austin stated commanders could consider vaccination status when making decisions on deployments, assignments and other operational decisions.

There was no acknowledgement of the now well documented health risks associated with the vaccines and boosters.

Secretary Austin’s memo said no currently serving member of the armed forces could be separated solely on the basis of their refusal to be vaccinated if they sought an accommodation on religious, administrative or medical grounds.

He also directed adverse actions be removed from personnel records if such actions were solely for their refusal.

As for discharged service members, the only remedy offered was that they could petition to have their discharge characterization raised to General (under honorable conditions) if their discharge was worse.

By the end of February, procedures were announced that gave the more than 8,100 already discharged service members a path to rejoin if they chose to. Basically, they must follow pre-existing standard procedures that anyone with a break in service must follow to re-join.

So what has happened in the lives and careers of those adversely affected by the DoD mandate?

Those who refused the vaccine but did not request an accommodation can still be discharged and those already discharged can be denied upgrades to their discharge characterization.

Gilbert Cisneros, Under Secretary of Defense for Military Personnel, sent a letter to lawmakers in D.C. stating that military officials “continue to review cases on an individual basis to determine appropriate action” for currently serving troops who did not get vaccinated and did not request an exemption.

There are approximately 16,000 of these cases pending. During a recent hearing the letter was discussed and Cisneros explained that the cases were proceeding regardless of the mandate being rescinded because the service members had disobeyed a “lawful order” at the time.

Note: The question of the lawfulness of the order has yet to be addressed in court. Those who contend the order was unlawful base their assertion on the fact that the DoD guidance directed the use of fully approved vaccines. The only fully approved vaccine, Comirnaty, was never manufactured nor distributed, hence the only vaccines available to service members were under Emergency Use Authorizations (EUA). The only time a EUA vaccine can be mandated for military personnel is if the Secretary of Defense requests and receives a waiver from the President—which did not happen.

STARRS’ affiliated attorneys would like to know about service members who were punished for “disobeying a lawful order” and wish to challenge the legality of that order and those punishments. If that describes you or someone you know, let STARRS know: Contact STARRS

The Commandant of the U.S. Coast Guard sent a letter dated February 28 to Rep W. Greg Steube (R-FL), informing him that the seven USCGA cadets that were disenrolled and four others who voluntarily left due to the vaccine mandate have been notified they are eligible for readmittance. We have not heard if any have made a final decision, but some have indicated a reluctance because they are concerned how they will be treated if they return to the USCGA.

Summaries of individual situations submitted to STARRS; some positive, some confusing:

A parent of a USAFA sophomore who refused the vaccine said “She is on the Superintendent’s list, been allowed to travel for club water polo and with her Astro majors for a trip. She is also serving in a leadership role in her squadron. So as far as being unvaxed, she is doing okay.”

A family member posted an encouraging update about a joint spouse military couple who had requested accommodations. The wife’s General Officer Memorandum of Reprimand (GOMOR) was removed in early January and separation action against her husband was halted. Both were “placed back in good standing” and she was awaiting orders to be reassigned to the base where her husband is stationed—an action that had been on hold since July 2021. They are working on their overdue promotions to 1LT, hopefully with effective dates when they would been promoted had it not been for the mandate.

Service members provided STARRS with copies of welcome letters dated in February stating that vaccines were still required for some training courses including Silver Flag courses (contingency operation courses for AF civil engineering personnel) and a graduate flight course at Fort Rucker.

This article is from the April 2023 STARRS SITREP Newsletter

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