Once vaccines for the novel coronavirus (COVID-19) become mandatory, U.S. service members could face a range of punishments including administrative separation and court-martial for refusing to get inoculated, legal experts said.
Defense Secretary Lloyd Austin plans to ask President Joe Biden by mid-September for a waiver that would allow the Defense Department to make COVID-19 vaccines mandatory for U.S. troops, but service members could be required to be vaccinated sooner than that if the U.S. Food and Drug Administration fully approves one of the three COVID-19 vaccines within the next few weeks.
Pentagon spokesman John Kirby noted on Tuesday that the FDA could fully approve the vaccine made by Pfizer before mid-September.
“We have every expectation that once the vaccines are made mandatory the troops are going to do the right thing,” Kirby told reporters at a Pentagon news conference. “But, without speaking to the future, it’s treated, certainly, like any lawful order, and there could be administrative and disciplinary repercussions for failing to obey that order.”
The Defense Department will also make sure that service members who have reservations about getting a COVID-19 vaccine are “properly counseled” about the risks to their personal health and their unit’s readiness that they would incur by not getting vaccinated, Kirby said.
“Commanders have a range of tools, short of using the UCMJ [Uniform Code of Military Justice] available to them to try to help individuals make the right decisions,” Kirby said.
At the moment, it is unclear exactly what punishments troops could face if they refuse to get vaccinated because the military does not yet have a policy for mandatory COVID-19 vaccines, said Anthony Kuhn, a managing partner at the Tully Rinckey law firm.
“There’s no directive yet that spells out what commanders have to do,” said Kuhn, who is also chair of Tully Rinckey’s nationwide military law practice group. “So at this point, it would come down to the discretion of the commander.”
Commanders have several options for dealing with troops who refuse mandatory COVID-19 vaccines including issuing them a letter of reprimand or taking other administrative action; using nonjudicial punishment to push them to get vaccinated; referring troops to an administrative separation board for failure to obey an order; or even referring service members to courts-martial, as happened in the past when troops refused to get vaccinated for anthrax, Kuhn said.
Typically, service members who face nonjudicial punishment are not court-martialed for the same offense, Kuhn said. And in most – but not all – cases, service members can refuse nonjudicial punishment and request a court-martial.
“Then the command would have to determine whether or not they want to court-martial the individual,” Kuhn said. “But there’s a lot of money and a lot of resources that are spent on a court-martial, so the commands are less likely to do that.”
“I would hope that those leaders are stronger leaders and instead of trying to make an example out of somebody that they would actually have some empathy and push the administrative response, but we know that is not always going to be the case,” he continued. “Some people will be court-martialed.”
Attorney Mark Zaid represented several airmen, sailors, and Marines who were court-martialed for refusing to be vaccinated for anthrax. The Defense Department accused them of failing to obey a lawful order under Article 92 of the Uniform Code of Military Justice.
Troops who refuse mandatory COVID-19 vaccines will likely also face courts-martial for the same offense, said Zaid, who represented Task & Purpose in a Freedom of Information Act lawsuit to force the Navy to release emails to and from the USS Theodore Roosevelt’s captain during last year’s COVID-19 deadly outbreak aboard the aircraft carrier.
“All avenues of punishment will be available to the different services, to include imprisonment and the ending of their military careers,” Zaid said. “Unlike with the anthrax vaccine, we’re in the midst of a pandemic so I envision DoD will act swiftly and harshly with legal action against refusers.”
Service members who challenge the legality of the military’s mandatory COVID-19 vaccination program are almost certain to lose, but the Defense Department will likely recognize a limited number of medical and religious exemptions, said Butch Bracknell, a retired Marine lieutenant colonel who served as a legal advisor for the 1st Marine Division.
Some troops may have medical conditions that would prevent them from getting a COVID-19 vaccine, Bracknell said. Those troops could face medical separation because the Defense Department is treating COVID-19 vaccination as a readiness issue.
“If you’re going to do your entire enlistment as an admin specialist at a recruiting district in New Jersey, maybe the readiness concerns aren’t as high as if you were a corporal operator on your second – or sergeant operator – on your second enlistment at MARSOC [United States Marine Forces Special Operations Command],” Bracknell said.
Troops who request a religious exemption from getting a vaccine would have to prove that being vaccinated would violate their sincere, closely held beliefs, he said.
Memes are already being posted on social media showing troops how they can apply for a religious accommodation so that they can opt out of getting vaccinated for COVID-19.
Kirby confirmed that troops will be able to request a religious exemption from getting vaccinated for COVID-19, but they will also have to talk to a military physician to ensure they are making an “informed decision.”
“The commander, then, must counsel the individual that non-compliance with immunization may – it may – adversely affect deployability, assignment, or international travel,” Kirby said.
While barracks lawyers insist troops can invent a faith that opposes COVID-19 vaccines, Bracknell explained that any request for a religious exemption would go through rigorous scrutiny to determine if the religion in question is legitimate and why a service member’s faith is opposed to this particular vaccine.
Courts will look at the legitimacy of a religion, including whether it has governing texts, a holy book, and a history, he said.
“You can’t make up a religion saying, ‘I am now a worshipper of sunflowers and these are the tenants of my faith,’” Bracknell said. “You just can’t make up some s—t.”
However, the Defense Department has granted religious exemptions in the past for faiths such as Wicca, he said.
But even troops who argue their religion prohibits them from being vaccinated for COVID-19 will have to demonstrate that they have opposed getting other vaccines in the past, Bracknell said.
“Did you also not take the smallpox vaccine?” Bracknell said. “Did you also not take the Hep B? Show when you’ve been opposed to this in the past and how did this all of a sudden become a part of your closely held religious belief. Is it limited to this vaccine? Because if it’s limited to this vaccine, that’s a bad argument, right.
“All those other vaccines are fine, but this vaccine, which is regulatorily indistinguishable from those others – once the FDA approves it, just like the others; or the president grants a waiver, just like the others; it puts it on the same standing as all the other vaccines – show me why this one is different,” he continued. “I can’t think of a way that they can do that.”
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