On August 24 Secretary of Defense Lloyd Austin issued a memorandum directing all the secretaries of the military departments to begin full vaccination of all service members.  As a result, the military lawyers at JAG Defenders have received numerous inquiries from military service members regarding (1) the legality of such a mandate; (2) potential exemptions to the mandate; and (3) consequences if a military member were to refuse to comply with the mandate.

Each of these concerns will be discussed in further detail below.

The Legality of Mandatory COVID-19 Vaccinations in the Military

In the military, mandatory vaccination orders are presumed lawful if either: (1) the vaccine has been FDA-approved; or (2) if the vaccine has been granted Emergency Use Authorization (EUA) and the President waives the “informed consent” process.

The PFIZER BioNTech vaccine received full FDA approval on 23 August 2021.  The MODERNA and the JANSEN vaccines are still administered under a EUA.   Secretary Austin’s memorandum specifically limits mandatory vaccination to those with full FDA approval.  At this time this is limited to the PFIZER BioNTech vaccine.  President Biden has not yet waived informed consent for the other vaccines.   Once the FDA fully licenses or approves a vaccine, there is virtually no basis upon which the legality of a mandatory vaccination order can be raised.

Exemptions to Mandatory COVID-19 Vaccinations

There are however exemptions to the vaccine mandate. Service members with legitimate medical reasons, as well as administrative reasons such as religious objections, can REQUEST an exemption.  THESE ARE NOT AUTOMATIC.   Each service has put forth regulations detailing the exemption request process and potential consequences.   The process for each service can be very different and the process also varies by reason (medical vs religious etc.).

Medical exemptions must be reviewed and validated by appropriate health care professionals and are divided into temporary medical exemptions and permanent medical exemptions. Temporary exemptions are for up to one year and cover situations such as pregnancy, acute illness, and temporary immune suppression.  Permanent exemptions are granted indefinitely and apply to conditions such as HIV permanent immune-compromised service members such that vaccination could endanger a person’s health

Administrative exemptions are usually controlled by a service member’s unit commander and include (1) Exemptions from immunizations due to the service member being subject to separation or retirement within 180 days; (2) Separation of civilian employees and contractor personnel within 30 days; and (3) Religious exemptions.

Vaccination exemptions for religious reasons are granted in accordance with service-specific policies to accommodate the religious beliefs of a military service member. Religious exemptions are command decisions made with medical, judge advocate, and chaplain input.

Religious exemption requests must comply with the provisions of the relevant branch of the servicemember requesting religious accommodation.  In the Army, religious accommodation policy can be found at Army Regulation 600–20;  In the Marine Corps and Navy, religious waivers are decided on a case-by-case basis by the Chief, Bureau of Medicine, and Surgery;  For the Air Force, permanent religious waivers are not granted the MAJCOM commander is the designated approval and revocation authority for exemptions  For the Coast Guard, CG–122 is the designated approval and revocation authority for religious immunization exemptions. USCG requests must be forwarded through the appropriate chain to Commandant CG–122 via CG–112. ***Please note that on August 30 the Coast Guard issued Military Religious Accommodation COMDTINST 1000.15 which changed CG-122 to CG-133. All requests should be forwarded through CG-1121 to CG-133.

Medical and administrative exemptions can also be found in Joint Instruction (AR 40-562, BUMEDINST 6230.15B, AFI 48-110_IP, CG COMDTINST M6230.4G) Immunizations and Chemoprophylaxis for Prevention of Infectious Disease.

Refusal to Comply With Mandatory COVID-19 Vaccination Order

Each of the services has set a deadline for all service members to either be fully vaccinated or receive an exemption.

For the AIR FORCE and SPACE FORCE, the deadline for all Airmen to be fully vaccinated was 2 November 2021 for Air National Guard and Air force reserve the deadline is 2 December 2021.

For the ARMY the deadline for all Soldiers to be fully vaccinated is 15 December 2021.

For the NAVY and MARINE CORPS, the deadline for all active duty Sailors and Marines to be fully vaccinated is 28 November 2021 for all reservists the deadline is 28 December 2021.

The CONSEQUENCES FOR REFUSAL CAN BE SEVERE.  Though the details differ from service to service to service they include NON-JUDICIAL PUNISHMENT (NJP); A service member’s refusal to carry out an order to be vaccinated would likely violate Article 92 of the Uniform Code of Military Justice (“UCMJ”), Failure to Obey Order or Regulation.  The consequences of NJP include reprimands, written complaints that go in a service member’s permanent file and can significantly affect career advancement and promotions. Other punishments vary with rank and can range from a reduction in rank to a loss of pay or a discharge. ADMINISTRATIVE SEPARATION, In the Navy and Marine Corps processing, is MANDATORY for vaccine refusals. In all services, this is a possibility and those service members separated for a vaccine refusal face the possibility of separation with a GENERAL DISCHARGE the loss of benefits, the recoupment of unearned specialty pay, bonus pay, and education benefits. Other potential consequences include LOSS OF PROMOTION, REMOVAL FROM PROMOTION LISTS, LOSS OF ORDERS, LOSS OF SCHOOL SELECTION, LOSS OF COMMAND/LEADERSHIP POSITIONS and RENLISTMENT REFUSAL.

At this time none of the services has issued guidance regarding a potential COURT-MARTIAL for vaccine refusal.  HOWEVER, it cannot be entirely ruled out as a possibility.  Depending on the charge(s) and circumstances the potential consequences of conviction at court-martial are DIRE.  Including dismissal, dishonorable discharge, prison time, and forfeiture of pay and allowances.

Experienced, WORLDWIDE Military Law Attorneys

If you have ANY concerns or questions about being vaccinated. If you plan on seeking an exemption.  Or if you plan on refusing the COVID-19 vaccine, contact the experienced military law attorneys at JAG DEFENDERS today for a free consultation. Do not go this alone!  We are here to answer your questions concerning the possibility of exemptions in your situation.  Our experienced military lawyers are available to defend you should you be subject to punishment for declining the COVID-19 vaccine.

Call us today at 833-JAG-DFND