What to Expect When Facing Discharge Board Based on the Refusal of COVID-19 Vaccine
You may be wondering what your legal rights are with regard to submitting to the military’s vaccine mandate. Make no mistake, due process of law applies to you. For enlisted members with over 6 years on active duty, and regular commissioned officers with more than 5 years on active duty, you will be entitled to a board to contest your discharge. If you have less than these years, of course, you may submit your discharge rebuttal matters in writing, which may include attachments, such as letters from family, friends, colleagues, and anyone else you deem invaluable.
In any case, should you have the requisite years, these so-termed “vaccine” boards, like other separation boards, will entitle you to call good military character witnesses, including experts, and to offer other convincing retention evidence.
The four primary exemptions to imposing the vaccine mandate upon you are:
- Religious accommodation
- First amendment
- Lack of informed consent
- Medical health reasons. See, Army Directive 2021-33 (Approval and Appeal Authorities for Military Medical and Administrative Immunization Exemptions)
Regulations & Documentation
Secretary of the Army Christine Wormuth recently stated “unvaccinated Soldiers present risk to the force and jeopardize readiness. We will begin involuntary separation proceedings for Soldiers who refuse the vaccine order and are not pending a final decision on an exemption.” Indeed, Army Regulation (AR) 600-20, para. 5-4 mandates that the command “[c]ounsel the Soldier [or Officer], in writing, that he or she is legally required to be immunized; that if the Soldier continues to refuse to be immunized that he or she will be legally ordered to do so, and that failure to obey the order may result in UCMJ and/or administrative action for failure to obey a lawful order (UCMJ, Article 92) as deemed appropriate by the commander.”
What does Article 92, UCMJ say? It is a offense which is triggered when a service member fails to obey an order or regulation. By analogy, however, when the member is charged with violation of a lawful order, the legality of the order is an “issue of law” that must be decided by the military judge, not the court-martial panel. Article 51(b), UCMJ, 10 U.S.C. § 851(b) (2000); United States v. New, 55 M.J. 95, 105 (C.A.A.F. 2001) As an aside, which will be referenced later, one should still confirm the vaccination was FDA approved at the time it was offered, and presumably rejected.
Interestingly, AR 40-562, which mandates vaccinations, is not punitive, and thus cannot, as presently drafted, support a Article 92, UCMJ violation. See, United States v. BM1 Daly, CGCMS 24437 (2010) Instead, commands will alternatively rely upon AR 600-20 which reads “[i]mmunizations required by AR 40–562 or other legal directive may be given involuntarily.”
Exceptions for COVID Vaccine in the Military
Next, let’s drill down on the applicable exceptions to the vaccine mandate. Specifically, Department of Defense (DoD) Instruction 1300.17 “[e]stablishes DoD policy in furtherance of the Free Exercise Clause of the First Amendment to the Constitution of the United States, recognizing that Service members have the right to observe the tenets of their religion, or to observe no religion at all.” The religious tenet here is that both the Pfizer and Moderna cell lines, referred to as “HEK-293” are derived from the kidney of a fetus aborted in the 1970s.
On or about 10 February 2022, the U.S. Air Force granted nine such exceptions to the vaccine mandate based upon religious grounds. Similarly favorable, recently a federal court in USN Seals 1-26 v. Biden, 2022 US Dist. LEXIS 2268, upheld a preliminary injunction against the DoD which prevented several U.S. Navy Seals from being involuntarily discharged. They convincingly averred, and the court found, violations of both the Religious Freedom Restoration Act and the First Amendment. Specifically, these Navy Seals raised “opposition to abortion and the use of fetal cell lines in the development of the vaccine.” Id.
In stark contrast, however, several other federal courts have routinely denied such requests for preliminary injunctions respectfully asserted against the DoD because final action had yet to be taken. See, e.g., Church v. Biden, 2021 US Dist LEXIS 215069. As Church held, the vaccine mandate claims were not ripe. Indeed, despite the anomaly in USN Seals 1-26, this “ripeness” problem will likely repeat as adverse exemption decisions must first be appealed within the DoD apparatus.
Is FDA Approval for COVID Vaccines in the Military Required?
Beyond requesting a religious accommodation, or a medical exception based upon myocarditis (inflammation of the heart muscle) and pericarditis (inflammation of the lining outside the heart), uniformed members may seek confirmation that the command is not otherwise providing the recipient a non-FDA approved vaccine. For example, the federal court in John Doe #1 # 14 et al v. Austin, 2021 US Dist LEXIS 236327 recently addressed this profound issue. By way of background, the FDA website currently reads:
“Emergency uses of the vaccine have not been approved or licensed by FDA, but have been authorized by FDA, under an Emergency Use Authorization (EUA) to prevent Coronavirus Disease 2019 (COVID‑19) in individuals 5 years of age and older.”
Without getting overly technical, on August 23, 2021,the FDA approved the Pfizer-BioNTech COVID-19 Vaccine (known as Comirnaty) for the prevention of COVID-19. About 5 months later, on January 31, 2022, the FDA then approved the Moderna COVID-19 Vaccine (known as Spikevax) for the prevention of COVID-19. In sum, to be clear, Comirnaty and Spikevax are both FDA approved.
According to news publications and recent court opinions, however, the “purple” capped Pfizer-BioNTech COVID-19 Vaccine in not FDA approved. The court in Austin insightfully discerned, by implication, that the “purple” capped vile contained so-called “excipients” like “coatings, binders and capsules” which “may affect the safety” of the vaccine. See United States v. Generix, 460 US 453 (1983) As a result, it is possible that episodes of myocarditis and pericarditis have been assumingly reported following the administration of this non-approved Pfizer-BioNTech COVID-19 Vaccine. Even so, the Austin court ultimately denied a preliminary injunction against the vaccine mandate, but inexplicably did so without holding a “evidentiary hearing.” As such, a causal nexus between the non-approved vaccine and myocarditis and pericarditis was arguably not properly developed. In short, the litigants (and the courts) will continue to fight it out.
Based upon the apparent use of multiple COVID-19 vaccines (some of which are FDA approved, and others not) commands Army-wide should be rightly obligated to inform uniformed members about the “specific type” of vaccine they intend on administering, or, perhaps more salient here, what explicit vaccine they wanted to give you at the time it was turned down. Again, based on descriptive literature, if the vaccine’s cap was “purple”, it was not FDA approved, while it if was gray, it was FDA-approved. As such, any clarification request, is merely required as part of “informed-consent” under 21 U.S.C. § 360bbb-3(e)(1)(A).
The U.S. Supreme Court has coincidingly yet to issue a full opinion on the matter of mandating vaccines, the winds do subtly suggest that requiring federal employees either to get vaccinated or undergo weekly COVID-19 tests, and wear face masks, may presumably go too far in the plurality of these justices’ eyes. National Fed. of Independent Businesses v. Department of Labor, 211 L.Ed. 2d 448 In sum, National Fed. held OSHA could not mandate that certain employees vaccinate, as to do so, exceeded its statutory authority.
This is a historic time in our nation’s history, and you’re serving to protect our rights remains both appreciated, and worthy of a reciprocal legal system that ensures that you are not irreparably harmed. You have likely served a lot of years in the Armed Forces, and while COVID-19 remains a significant dilemma in our nation, the rights of service members to practice their religious faith, by way of illustration, is assuredly likewise of tantamount importance.
These opinions are merely the product of the author and should not be construed in any other manner. Court & Carpenter PC highly recommends you speak to a legal and medical professional about your specific case, as every case is factually unique.