George Mason University Antonin Scalia Law School

COVID-19 and the Department of Defense: Response, Pushback, and New Policy

Written By Spring 2024 M-VETS Student Advisor Nicholas J. Bishop.

In response to the COVID-19 global pandemic, on 21 August 2021, the Secretary of Defense issued a memorandum directing senior Pentagon leadership, commanders of the combat commands, and defense agency and Department of Defense field activity directors to take necessary steps to ensure the immunization of all servicemembers against the COVID-19 virus.[1]

The Secretary’s memo directed that all servicemembers were to obtain the status of “fully vaccinated,” and defined “fully vaccinated” as starting “two weeks after…” injection with “the Pfizer-BioNTech vaccine, a COVID-19 vaccine subject to an FDA EUA (Moderna or Johnson), or a COVID-19 vaccine approved on the World Health Organization’s Emergency Use Listing.”[2] Medical, administrative, and religious exemptions were made available.[3] Part of the Secretary’s defense of the mandatory vaccination policy included a stipulation that “[m]andatory vaccinations are familiar to all of our Service members, and mission-critical inoculation is almost as old as the U.S. military itself.”[4]

The Secretary is not incorrect in his assertion: pursuant to DoD Instruction 6205, the Department of Defense has long enocuraged up to 90% inoculation for certain diseases, such as influenza.[5] Prior to any form of basic training, all Servicemembers must receive a bevy of different mandatory vaccinations: “The Department of Defense… requires 17 vaccines to protect members of the military from infectious diseases, including: influenza, measles, mumps, smallpox, and diphtheria.”[6]

However, unlike influenza or other vaccines, the COVID-19 vaccine received severe push-back from servicemembers over the mere 15 month period it remained effective.[7] Why did this vaccine caused uproar where other similar mandates go largely unnoticed as an issue?

The answer is simple: politics. For perhaps the first time in history, the questions surrounding an infectious disease became not issues of practical consideration and public health, but political talking points for both left and right to rally around.

Public trust in the government fell to near-historic levels in 2019, recovered only slightly between 2020 and 2021, and have fallen off a cliff again through to the present year.[8]

The perception of many uniformed men and women was that the mandate was the political invention of some other side in a vast political culture war: as Meghann Myers of Military Times succinctly summed up, “[m]ore than 17,000 service members balked at taking the shots, citing safety fears linked to the vaccine’s speedy development and spurred by misinformation about messenger ribonucleic acid technology, as well as concern over fetal lines used in formulation and testing. The more the controversy raged in the news, the more troops asked to skip the shots.”[9]  The most publicized pushback comes from a series of lawsuits alleging substantially the same thing: that the military’s failure to grant religious exemptions to the COVID-19 vaccine mandate violated their First Amendment Rights.[10]

In a memorandum last year, Secretary of Defense Lloyd Austin explained that “[s]ection 525 of the NDAA (National Defense Authorization Act) for FY (Fiscal Year) 2023 requires me to rescind the mandate that members of the armed forces be vaccinated against COVID-19 issued in my August 24, 2021 memorandum … I hereby rescind that memorandum.”[11]

Pursuant to the new guidance, “[n]o individuals currently serving… shall be separated on the basis of their refusal to receive the COVID-19 vaccination if they sought an accommodation on religious, administrative, or medical grounds.”[12]

“The Secretaries of the Military Departments will further cease any ongoing reviews of current Service member religious, administrative, or medical accommodation requests solely for exemption from the COVID-19 or appeals of denials of such requests.”[13]

If a Servicemember was already separated from their respective Service due to a refusal to take the COVID-19 vaccine, the Secretary’s guidance provides that such former Servicemembers “may petition their Military Department’s Discharge Review Boards and Boards for Correction of Military or Naval Records to individually request a correction to their personnel records, including records regarding the characterization of their discharge.”[14]

Politics and misinformation certainly played a role in the reaction to the DoD’s COVID-19 mandate, and it played a role in the mandate’s repeal. It seems likely then that politics will also mean very few take their former services up on the offer to either rejoin or update their records following separation: “… since the repeal, only 19 soldiers have rejoined the Army, while 12 have returned to the Marines, according to service spokespeople. The numbers are even smaller for the Air Force and Navy, where only one and two have rejoined, respectively, the services said.”[15]

At the end of the day, whether right or wrong, many Servicemembers feel that they were separated on behalf of a half-baked vaccine for which their Services did little to assuage mounting concerns, and it appears unlikely any of the Services will regain the numbers lost to the mandate. Only time will tell if future recruitment efforts can make up for the deficit.

[1] Austin, Lloyd Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense Service Members, SECDEF (2021).

[2] Id. at 2.

[3] Id.

[4] Id. at 1.

[5]See DoD Instruction 6205.02, “DoD Immunization Program.”

[6] Newsweek, Full List of Vaccines Mandated by the U.S. Military, (2021) (Quoting Representative Mike Rogers, Armed Services Committee).

[7] Lieberman, Orin, Only 43 of more than 8,000 discharged from U.S. military for refusing COVID 19 vaccine have rejoined, CNN,

[8] Pew Research, Public Trust In Government, (Accessed 10 May 2024).

[9] Myers, Meghann, The Fallout of the Military’s COVID-19 Vaccine Mandate, Military Times, The fallout of the military’s COVID-19 vaccine mandate ( (2023).

[10] Myers, Meghan, Could the Supreme Court strike down the military’s vaccination mandate?, Military Times,

[11] Austin, Llyod, Recission of August 24, 2021 and November 30, 2021 Coronavirus Disease 2019 Vaccination Requirements for Members of the Armed Forces, SECDEF (2023).

[12] Id. at 1.

[13] Id.

[14] Id. at 1.

[15] Lieberman, Oren, Only 43 of More Than 8,000 Discharged From US Military for Refusing Covid Vaccine Have Rejoined, CNN, Only 43 of more than 8,000 discharged from US military for refusing Covid vaccine have rejoined | CNN Politics (2 October 2023).