Written by Fall 2021 M-VETS Student Advisor Chapman Good.
The DOD’s Vaccine Mandate has caused quite a stir over the past several months. This writer would like to leave the politics up to the politicians and focus on what this means for our service members across the country.
The Secretary of Defense instituted the Mandate on August 24, 2021. It applies to “all members of the Armed Forces under DoD authority on active duty or in the Ready Reserve, including the National Guard…”[1] The Mandate requires that every member of the armed forces receive a Covid-19 vaccine by a certain deadline.[2] The allowed vaccines are only those that have been approved for use by the FDA. As of November 8, 2021, that includes the Pfizer-BioNTech, Moderna, and Johnson & Johnson vaccines.[3] And, in case you are thinking that this might not apply to the United States Coast Guard because they don’t fall under the DoD, you would be correct. However, the Coast Guard issued a similar mandate on August 26, 2021.[4]
For those service members that are concerned about getting the Covid-19 vaccine there are some exemptions available. First, a medical exemption. A service member can receive a temporary (less than 365 days) or a permanent medical exemption if they meet the right criteria and can get it approved by their branch of service.[5] For temporary exemptions, a service member can essentially get a doctor’s note from a DoD medical provider.[6] If a service member’s health conditions require a permanent exemption, they will need to get that approved by a member of their branch of service (unless they are a member of the Air Force), usually by a fairly senior doctor (no less than an O-5, and more often a General Officer).[7]
There are also two categories of administrative exemptions: those for service members pending separation or retirement, and those for service members with religious objections. The exemption for pending separation or retirement can be granted by the service member’s unit commander.[8],[9] The religious exemption has to go a bit higher. The Army requires the Army Surgeon General to sign off; the Air Force, a major commander; the Space Force, a major commander; the Marine Corps, the Deputy Commandant for Manpower & Reserve Affairs; the Navy, the Chief of Naval Personnel. If a service member is denied, the is also an appeals process in place to a higher authority. Needless to say, with a list like that, a religious exemption may be hard to come by.[10]
But, just because the odds are long, doesn’t mean you shouldn’t try. The Marine Corps just granted two religious exemptions, out of the 3,212 it has processed as of January 13, 2022.[11] The other services have yet to grant a religious exemption, but that doesn’t mean they won’t.[12] Additionally, there are federal court cases across the country dealing with this issue. As of this writing, at least two federal judges have made rulings on the Mandate. One ordered the Navy to remove the restrictions it placed on 35 Navy Seals that are suing to seek an exemption. The other judge threw out the case of an Army Sergeant and Marine Staff Sergeant because there exists an appeals process internal to the military.[13] All that is to say that the path forward for religious exemptions may be difficult, but not insurmountable.
What happens if a service member refuses? I’m glad you asked. According to the Congressional Research Service, that service member can be subject to administrative action, non-judicial punishment, and/or court-martial. As mentioned above, if a service member’s request for exemption is denied, they can appeal to a higher authority inside the military.
[1] See Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense Service Members, August 24, 2021 at 1.
[2] The deadlines have been moved several times as the services attempt to adjust to changing circumstances.
[3] See The Military’s COVID-19 Vaccination Mandate, Congressional Research Service, November 8, 2021 at 1.
[4] Ibid at 2.
[5] Id.
[6] Ibid at 3.
[7] Id.
[8] Except for the Coast Guard, which requires an exemption granted by the Chief of Military Personnel Policy
[9] Id.
[10] Id.
[11] Marines Grant First Religious Exemptions in Military for Covid-19 vaccine mandate, Oren Libermann, January 13, 2022. Found at https://www.cnn.com/2022/01/13/politics/military-covid-vaccine-religious-exemption-marines/index.html.
[12] Several of the services have only processed a fraction of the requests they have received. Id.
[13] Judge Tosses Lawsuit Over Military Vaccination, Michael Karlik, January 16, 2022. Found at https://www.coloradopolitics.com/coronavirus/judge-tosses-lawsuit-over-military-vaccination-mandate/article_9bc73c12-7595-11ec-a3c9-df07fa828581.html.