Congress Acts to Ensure Honorable Discharges For Vaccine Refusal

The Senate has passed the FY2022 National Defense Authorization Act (NDAA) including an amendment that would prohibit any discharge but an Honorable one for service members who choose not to receive the COVID-19 vaccine. Various members of the House and Senate are all claiming credit for introducing and voting for the amendment to the two-thousand-plus pages of the Defense Bill, among them is Congressman Mark Green(R-Tennessee). Congressman Green is a West Point graduate and a U.S. Army combat veteran.

As read from the amendment; ‘‘Notwithstanding any other provision of law, a member of the armed forces subject to discharge on the basis of the member choosing not to receive the COVID–19 vaccine may only receive an honorable discharge.’’

This amendment had been strongly opposed by the Biden Administration. A statement by The Office of Management and Budget in August stated that the administration “strongly opposes” the amendment, and if implemented would, “detract from readiness and limit a commander’s options for enforcing good order and discipline when a Service member fails to obey a lawful order to receive a vaccination.”

While the worst discharges characterized as Bad Conduct or Dishonorable can only be handed down as a result of a court martial proceeding, it is at the commanding officer’s discretion to recommend a court martial for refusing to obey a direct order. In a political climate where the administration seems determined to see punitive action of some kind for those refusing to be vaccinated, turning such refusals over to the military courts for adjudication elevates it to a felony act that could include fines and prison time along with a Dishonorable or Bad Conduct Discharge.

It very much appears that commanding officers would refer all charges of vaccination refusal to the military justice system for the reason that the very worst discharge types are beyond the scope of their authority.  This was hinted at when the Navy announced that those refusing vaccination would be discharged under the least favorable characterization.  A Bad Conduct or Dishonorable Discharge has the same effect as being convicted of a felony in a civilian court. You cannot vote, or own a firearm, or even apply for a bank loan.  You cannot work for the government or receive any form of government assistance which would include attending any publically-funded college or trade school.  You would also have problems getting a job just about anywhere, and be barred from entering most foreign countries for life.

The opposition by the Biden administration to an amendment that would assure an Honorable Discharge for a charge stemming from a vaccine refusal also speaks to the likelihood that the Pentagon was preparing to treat such a refusal as a felony act.


A Brief Timeline of the Vaccine Mandate on the Military

 Defense Secretary Lloyd Austin announced a vaccine requirement for all members of the military in late August of 2021.

 By November 3rd, the Air Force announced a 97 percent vaccination rate. This date was the deadline it set for active-duty members to get vaccinated.

 Earlier this week, the Air Force announced that it had discharged 27 members for refusing to get the vaccine. So far, they are the only service branch that has discharged members for refusal but had taken a more measured approach. The Air Force policy was to offer voluntary separations to those who had refused vaccination which would generally mean Honorable Discharges.

 The Navy and U.S. Marine Corps had a deadline of  Nov. 28 for its members, and the Army was required active-duty members to be vaccinated by Dec. 15.


Wikimedia commons. Photo by James Sims

The Pentagon Promised Honorable Discharges For Misconduct

On December 15th, Rear Adm. James Waters, the Navy’s director of military personnel plans and policy, spoke to reporters saying that those refusing to receive the vaccine, “will be processed for separation on the basis of misconduct for refusing the lawful order to be vaccinated,” Waters said, but will still receive an honorable discharge.  This represents a signficant change in policy in that as recently as November 3rd the Pentagon was saying that those who refused would be getting a discharge that made them ineligible for GI Bill benefits, VA home loans, and transition assistance programs, and unemployment compensation.  The loss of these benefits comes with adverse discharges. The Pentagon also said that service members discharged for vaccination refusal would face having to refund the government for bonuses and the costs of training.  In the case of military pilots and Special Operations Forces personnel, this could amount to millions of dollars being charged back to the service member.

In a story SOFREP has been working on, we have been in contact with two attornies representing some sixty services members from all branches of the military, both officers and enlisted personnel.  They sought legal representation for assistance in filing vaccinations waivers on the basis of medical or religious reasons.

On the condition of anonymity for fear of retaliation by their commands, several of these service members spoke to us through their attornies about the nature and causes of their refusal to receive the vaccination.


Vaccine Refusals Portrayed As Political Or Anti-Science

Contrary to a media narrative that has sought to paint all refusals of COVID-19 vaccinations as expressions of pro-Trump Political views(even as Trump encouraged getting vaccinated) or as an anti-science refusal to receive any vaccines at all, a very different picture emerged from their statements.

The most common requests for a medical waiver were by expectant or nursing mothers who were concerned about the potential effects the vaccine might have on their pregnancy or nursing infant.  This seems a concern more about precaution than paranoia about vaccines.  None of the available vaccines have been tested on expectant mothers or newborn infants to date and data on giving the vaccine to older children is just now becoming available and is very limited.

Another common reason was a prior infection.  Service members who had been previously exposed to COVID-19 requested waivers on claims that natural immunity was longer-lasting and more comprehensive than that offered by any of the vaccines.  They requested that the military accept proof of prior infection as equivalent to being vaccinated since vaccinated people would also test positive for prior infection as well.  So far, the Pentagon and the federal government have refused to acknowledge naturally acquired immunity as being equivalent let alone superior to vaccination.  This is in spite of a very large study done in Israel which found natural immunity may be as much as twenty-six times more effective than the vaccine in preventing serious illness or death in subsequent exposure to the virus.

Refusals based on religious objections pointed to a very specific cause related to the use of fetal stem cells in the research used to create the vaccines.  While the Catholic church has officially approved of the vaccination for its members, many of the various Protestant sects which make up the mosaic of religious belief in this country have not.  Among the Evangelical, Pentecostal, and Orthodox Catholic churches there is a long-standing objection to receiving any medicine that involves the stem cells of aborted babies in their development or production. In giving its assent to its followers, the Catholic church approved of using the vaccine in the absence of alternatives which makes the vaccination a remedy of last resort.  Coming onto the market now are drugs used to treat COVID that holds forth the promise of virtually eliminating all fatalities connected to infection.


Wikimedia Photo: Ft Hunter Liggett


A Prior Vaccine Mandate Was Found To Be Illegal.

Service members have also objected to being compelled to take a vaccine that is operating under an emergency authorization rather than the normal testing and approval process.  These service members have taken numerous vaccinations given by the military but say these vaccines have been fully tested and approved for general use.  This is the first time a vaccine approved for emergency use has been offered along with a direct order to receive it.  They point to a case where vaccines administered to service members before they were properly approved by the FDA exposed service members to significant health hazards. They are talking about requiring all DoD personnel to take an anthrax vaccine that had not been fully or properly approved for use by the FDA in 1998.

Some 85% of service members reported adverse physical reactions to the vaccination which included six injections.  Service members began refusing and reported being threatened with court martial and discharge for refusals.  Hundreds of service members were discharged, many by court martial with adverse discharges until a federal court intervened in 2004 and made it illegal for the government to mandate the anthrax vaccine writing in the order, “Congress has prohibited the administration of investigational drugs to service members without their consent,..” At issue then was whether the FDA had violated its own rules in a rushed approval of the anthrax vaccine. These service members assert that a COVID vaccine approved by the FDA on an emergency basis meets the standard of an “Investigational” drug and requires their willing consent free from threats and intimidation.


Requests for Medical or Religious Waivers Were Not Accepted In Good Faith

The service members represented by the attornies we spoke to also claim that the military did not offer the waivers in good faith.  What they were being told was to go ahead and file for a waiver but have zero expectation of it being granted.

SOFREP reached out to each of the service branches and requested they provide us with information on how many waiver requests it had received and how many had been granted or refused.  Only the Army and Coast Guard responded answering that they did not know even as they were able to report on how many service members had been vaccinated in percentages as high as ninety-seven percent.

The Defense Department has not released numbers to the public but it has been compelled to release information to a federal judge in the middle district of Florida.

Navy Seal 1 v. Biden, a class-action lawsuit filed by attornies for the Liberty Counsel which defends religious liberties, included plaintiffs from all service branches, civilian employees and contractors. This lawsuit also makes claims that the waiver process is a ruse in violation of the Religious Freedom Restoration Act.  The government has divulged under subpoena that 16,643 waiver requests have been made but cannot offer a single case in which one had been granted.  The judge has ordered the Department of Justice which is representing the Biden Administration, the DoD, and DHS as defendants to file a bi-weekly report beginning January 7th, 2022. These reports must contain the following information.

(1) total number of religious exemption requests, the aggregate number of denials, denials where belief found sincere, appeals pending, denials where appeal time has passed and number of successful appeals,

(2) total number of medical exemptions,

(3) other exemptions granted and,

(4) number of disciplinary proceedings and actions taken after denial in an appeal.

Reasonably assuming that accuracy exists in that number of 16,643 waivers being requested since it was compelled under subpoena, there could be a like number of refusals by those who have not filed for waivers. The DoD trying to adjudicate up to 32,000 court martial cases would take years while the accused remained in the military under full pay and allowances awaiting their court dates. Many would complete their contracted service while waiting.  It would create an administrative tangle of epic proportions and added expense.

The Religious Freedom Restoration Act of 1993, which is binding on the federal government states, “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”  A COVID vaccine mandate would be considered a rule of general applicability.

The ACLU Is Mute On Religious Liberty

On the question of religious liberties, we contacted the American Civil Liberties Union to request clarification of their statement in favor of vaccination in September of 2021. In that statement, the ACLU begins by writing, “we are not shy about defending civil liberties, even when they are very unpopular. But we see no civil liberties problem with requiring Covid-19 vaccines in most circumstances.”

It goes on to argue that vaccination does not violate a civil right to, “autonomy and bodily integrity.”  The ACLU does not address religious conscience rights under the “Free Exercise” clause of the First Amendment or acknowledge that such concerns even exist. We asked the ACLU if they recognized a religious right to refusal and how they would resolve it under the religious protections of the First Amendment and the Religious Freedom Restoration Act.

After more than six weeks there has been no reply.

SOFREP contacted one of the attornies representing service members filing exemption waivers asking for reaction to the news that  Congress had acted to ensure Honorable Discharges for vaccine refusal;

“I believe strongly that the public stand made by Navy SEALs and other military members against the vaccine have made Honorable discharges a possibility.  The language in the NDAA is a significant victory when you consider the threats the military made to court-martial those who did not comply with the mandate.

 Despite the possibility of receiving an Honorable discharge a significant number of my clients and other military members will continue the fight to stay in the military and serve.

 I believe January will be a critical month in the legal battle to force the Department of Defense to fairly process religious accommodations.  The current policy of denying all religious accommodation requests is a significant factor in ongoing Federal litigation.  If the DoD continues the current policy of denying all requests it is likely that a Federal court will intervene to protect the religious rights of military members.”