Written by Spring 2023 M-VETS Student Advisor Kyle Elzey.
Background
On August 24th, 2021, following the approval of the Pfizer BioNTech vaccine by the Food and Drug Administration (FDA), the Secretary of Defense (SECDEF) issued the Mandatory Coronavirus Disease 2019 (COVID-19) Vaccination of Department of Defense (DoD) Service Members memorandum, to ensure the health and operational readiness of the Force.[1] To effectuate this intent, the memorandum directed the “Secretaries of the Military Departments to immediately begin full vaccination of all members of the Armed Forces under DoD authority on active duty or in the Ready Reserve, including the National Guard, who are not fully vaccinated against COVID-19.”[2] While the memorandum unequivocally directs the vaccination of all service members, it instructs the Military Departments to implement the requirements of the COVID-19 mandate in line with existing DoD policies and procedures, to include pre-established medical and administrative exemptions.[3] However, unlike the other 17 vaccinations administered by the DoD,[4] thousands of servicemembers would apply for religious and medical exemptions to the COVID-19 vaccination.[5] In total, 8,400 service members would outright decline the vaccination and subsequently be discharged, for failure to obey a lawful order.[6] As of December 20th, 2022, the DoD reported that 2,000,195 service members have been vaccinated against COVID-19,[7] accounting for roughly 96 percent of the Active and Reserve Forces.[8]
Recission of the COVID-19 Mandate
Unlike other vaccinations, the COVID-19 vaccine has been highly politicized due to partisan divisions, misinformation, and concerns over personal liberties.[9] Due in part to the political contention and concerns that the vaccine mandate has harmed military recruitment and retention,[10] Congress directed the DoD to repeal the COVID-19 mandate in the National Defense Authorization Act (NDAA) for Fiscal Year 2023.[11] In response, on January 10th, 2023, the SECDEF rescinded the COVID-19 mandate by memorandum, and directed that no service members currently serving in the Armed Forces should be separated based on a refusal to receive the COVID-19 vaccination if they sought accommodation on religious, administrative, or medical grounds.[12] The memo further directed that for current service members who requested such exemptions, the Military Departments should update the service member’s records to remove adverse action solely associated with the denial of the COVID-19 vaccination to include letters of reprimand.[13]
Recourse Options for Previously Discharged Service Members
While the recession provides relief to current service members pending separation for non-compliance with the mandate, it does not extend new relief to the 8,400 service members previously discharged. For service members discharged between August 24th, 2021, and August 24th, 2023, Congress precluded the DoD from awarding any characterization less than a General, Under Honorable Conditions discharge for failure to obey a lawful order to receive the COVID-19 vaccine.[14] However, service members who believe they should have received an Honorable characterization rather than a General, Under Honorable Conditions discharge can still petition their respective Discharge Review Board (DRB) for a discharge upgrade.
To have a discharge characterization upgraded by a DRB from General, Under Honorable Conditions to Honorable, the service member would need to demonstrate that the discharge was either improper or inequitable.[15] For a discharge to be found improper there must be “an error of fact, law, procedure, or discretion associated with the discharge that was prejudicial to the veteran’s rights, or (B) where a retroactive “change in policy . . . requires a change in the discharge.”[16] Based on this standard a DRB is unlikely to grant a discharge upgrade on the basis of impropriety as a refusal to obey a lawful order is a flagrant violation of military discipline and regulations, and therefore unlikely to be found in error of fact, law, procedure or discretion. Subsequently, unless further action is taken by Congress or by the DoD to retroactively extend relief to those previously discharged for refusal to comply with the vaccine mandate, a discharge upgrade request on the basis of impropriety is unlikely to result in a discharge upgrade.
However, due to inconsistencies in how discharge characterizations have been assigned for vaccine mandate non-compliance, service members may argue for a discharge upgrade on the basis of inequity. Under this standard, a discharge is considered equitable unless (A) the current discharge policies and procedures are materially different than those that led to the veteran’s discharge, (B) the discharge was inconsistent with disciplinary standards at the time of discharge, or (C) the veteran’s service record shows that relief is warranted after considering the applicant’s quality of service and capability to serve.[17] Based on this service members may claim that the disparities in discharge characterizations between the services demonstrates inconsistent disciplinary standards. For example, the Navy has to date given all its personnel who refused the vaccination an Honorable discharge characterization, whereas the Marine Corps has separated 78% of its personnel for the same offense with a General, Under Honorable Conditions characterization.[18] Therefore, service members may have a valid basis to request a discharge upgrade on the grounds of inequity, if they can demonstrate a disparity in discharge characterizations across the services, and appeal to the need for consistent application of disciplinary standards across the DoD.
[1] See Lloyd J. Austin, Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense Service Members, at 1 (Aug. 24, 2021).
[2] Id.
[3] See id.
[4] See Khaleda Rahman, Full List of Vaccines Mandated by the U.S. Military, Newsweek (Oct. 21, 2021) (identifying the 17 different vaccines the DoD already administers to service members) https://www.newsweek.com/list-vaccines-mandated-us-military-covid-1641228.
[5] See Lolita C. Baldor, Pentagon Drops COVID-19 vaccine requirements for troops. Associate Press (Jan. 10, 2023) https://www.pbs.org/newshour/politics/pentagon-drops-covid-19-vaccine-requirement-for-troops; Meghann Myers, Troops opposed to the COVID-19 vax can get a waiver, but they’re rare (Oct. 18 2021) (describing how prior to COVID-19 vaccinations, request for religious and administrative exemptions to vaccines were rare, and nascently tracked by the Services) https://www.militarytimes.com/news/your-military/2021/10/18/troops-opposed-to-the-covid-19-vax-can-get-a-waiver-but-theyre-rare/.
[6] See Lolita C. Baldor, Pentagon Drops COVID-19 vaccine requirements for troops. Associate Press (Jan. 10, 2023) https://www.pbs.org/newshour/politics/pentagon-drops-covid-19-vaccine-requirement-for-troops;
[7] See U.S. Department of Defense, Coronavirus: DoD Response (last accessed May 15, 2023) https://www.defense.gov/Spotlights/Coronavirus-DOD-Response/.
[8] See Lloyd J. Austin, Recission of August 24, 2021 and November 30, 2021 Coronavirus Disease 2019 Vaccination Requirements for Members of the Armed Forces, at 1 (Jan. 10, 2023).
[9] See Hart, P.S., Chinn, S., & Soroka, S. “Politicization and Polarization in COVID-19 News Coverage”, Sci. Comm. 42, 679–697 (Oct. 2020).
[10] See Lolita C. Baldor, Pentagon Drops COVID-19 vaccine requirements for troops. Associate Press (Jan. 10, 2023) https://www.pbs.org/newshour/politics/pentagon-drops-covid-19-vaccine-requirement-for-troops.
[11] See National Defense Authorization Act for Fiscal Year 2023, H.R.7900, 117th Cong. § 525 (2022).
[12] See Lloyd J. Austin, Recission of August 24, 2021 and November 30, 2021 Coronavirus Disease 2019 Vaccination Requirements for Members of the Armed Forces, at 1 (Jan. 10, 2023).
[13] See id.
[14] See National Defense Authorization Act for Fiscal Year 2022, S.1605, 117th Cong. § 736 (2021).
[15] See 32 C.F.R. § 70.9.
[16] See id.
[17] See id.
[18] See Greg Hadley, Nearly All Airmen Discharged Over COVID-19 Vaccine Get General Discharges, Air & Space Forces Magazine (Apr. 29, 2022) https://www.airandspaceforces.com/nearly-all-airmen-discharged-over-covid-19-vaccine-get-general-discharges/.