One of the most controversial issues of 2021 is the debate about COVID-19 vaccinations, and many are polarized around the proper response to the virus. With the recent FDA approval, many following the issues from the legal standpoint are bracing for the ripple effects in military justice. Many in uniform are seeking guidance about what to expect, their obligations, and potential legal consequences of decisions they are facing. The information below is designed to assist service members in understanding the changes. This information is not legal advice.
Q. Are service members being required to get the COVID-19 Vaccine?
A. On 24 August 2021, the Secretary of Defense (SecDef) issued a memorandum directing the Service Secretaries of each Branch of the Armed Forces 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 Nation Guard, who are not fully vaccinated against COVID-19.
Q: If I already tested positive for COVID-19, do I still have to get vaccinated under the SecDef memo?
A: Yes. Even if you previously were infected with COVID-19, you are not considered “fully vaccinated.” You must still obtain full vaccination per the memorandum.
Q: What does it mean for me to be fully vaccinated?
A: Service members are considered fully vaccinated two weeks after completing the second dose of a two-dose COVID-19 vaccine or two weeks after receiving a single dose of a one-dose vaccine.
Q: Which COVID-19 vaccine is mandatory?
A: You will only be required to use COVID-19 vaccines that receive full licensure from the Food and Drug Administration (FDA), in accordance with FDA-approved labeling and guidance.
Q: What if I was already vaccinated with a COVID-19 vaccine that did not receive FDA approval?
A: If you already obtained a voluntarily immunization with a COVID-19 vaccine under FDA Emergency Use Authorization or World Health Organization Emergency Use Listing before or even after the SecDef memo, you are considered fully vaccinated.
Q: Is there any way for me to be exempted from taking a mandatory COVID-10 vaccination?
A: Potentially, yes. There are two types of immunization exemptions. The first is medical and the second is administrative.
Q: How can I obtain a medical exemption?
A: The only way to obtain a medical exemption is to receive one from your health care provider. Health care providers will determine a medical exemption based on your health and the nature of the immunization under consideration. Please see AR 40-562, para. 2-6a for details for Army personnel. These medical exemptions can be temporary (up to 365 days) or even permanent. If you have already an underlying health condition you may be a candidate a medical exemption. (AR 40-562, para. 2-6a).
Q: How can I receive an administrative exemption?
A: Administrative exemptions include those specifically listed in AR 40-562, as well as for religious exemptions. Religious exemptions must comply with the requirements for religious accommodations described in AR 600-20, para. P-2b, and DoDI 1300.17 (Religious Liberty in the Military Services), September 1, 2020. Understand that the Surgeon General is the decision authority exemptions based on religious accommodation requests, which includes any based on immunization. AR 600-20, para. 5-6e(1)(b). In order to obtain an exemption for religious accommodation, Soldiers may make their request for exemption by processing the request through their respective chains of command.
Q: If I am approved for an exemption will this limit my ability to PCS, go TDY, and travel?
A: It may. The member will be subject to travel restrictions of other countries that may already limit admittance according to vaccination status.
Q: Can I refuse to obtain a COVID-19 immunization?
A: Any member may decide to refuse to obtain a COVID-19 immunization, but in doing so, that member should expect administrative and legal consequences, many of which may jeopardize the member’s ability to remain in service. For example, if anyone refuses to obtain the COVID-19 immunization and does not have a valid exemption, that member should expect for thecommander or someone with authority over the member to order you to obtain the COVID-19 immunization. That person may even give the member a specific date, time, and place to obtain the COVID-19 immunization. If the member refuses to obey the order, the refusal may result in punitive or adverse administrative action. These potential actions include letters of reprimandand / or the offering of non-judicial punishment / Article 15 / CAPTs Mast. If the member refuses the non-judicial punishment, the member could face court-martial for violation of a lawful order.Court-martial conviction would trigger the maximum punishment of reduction to E-1, loss of all pay and allowances, confinement for up to six months, confinement up to two years, or confinement up to five years (depending on how charged), and even a bad conduct or dishonorable discharge. If the member refuses the COVID-109 vaccination, the member could also face administrative separation. Separation from service with less than a full Honorable discharge jeopardizes entitlements including but not limited to the GI Bill and Veterans Assistance with education.
Q: I am considering the refusal of an order to obtain the COVID-19 vaccination. I would like to discuss the potential legal ramifications if I do refuse. Do I have the right to speak to a lawyer?
A: If you have already refused to submit to the COVID-19 vaccination and received an order to obtain it, and then your command processes you for a specific punitive or administrative action, you may be authorized to seek advice from Legal Assistance (for responses to letters of reprimand) or Trial Defense Services or Defense Service Offices (NJP / Article 15 / CAPTs Mast, administrative separations, or courts-martial). Legal Assistance attorneys will not assist with submitting an exemption.
Q: I feel unsure about trusting the advice of a military attorney in uniform about whether I should refuse to obtain the COVID-19 vaccination. Can I consult with and / or hire a private civilian lawyer?
A: Any service member who would like to discuss potential repercussions to their career, is always permitted to consult with and to hire private civilian counsel.
Q: Is the Law Office of Jocelyn C Stewart willing to consider being privately hired to consult with service members who are deciding whether to obtain the COVID-19 vaccination or who have already decided they will refuse to obtain the COVID-19 vaccination?
A: We are not. To be clear, the Law Office of Jocelyn C Stewart respects the views and opinions of all service members on this incredibly personal journey. However, in keeping with our mantra of ensuring that we are being hired to help service members where we can do the “most good,” and having reviewed the applicable historical case law, this is not an area where we will be representing service members.
Q: What is the legal framework that supports the military’s authority to require a vaccination where the member does not want to take it?
A: In Jacobson versus Massachusetts, the U.S. Supreme Court confronted the propriety of a conviction from the failure of Jacobson to obtain the smallpox vaccination. In their ruling which upheld Jacobson’s conviction, the Court wrote:
“The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.” Id. at 26
“Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members. It is to be observed that when the regulation in question was adopted smallpox, according to the recitals in the regulation adopted by the board of health, was prevalent to some extent in the city of Cambridge, and the disease was increasing.” Id. at 27
“The state legislature proceeded upon the theory which recognized vaccination as at least an effective, if not the best-known, way in which to meet and suppress the evils of a smallpox epidemic that imperiled an entire population.” Id. at 30-31
The Court affirmed Mr. Jacobson’s conviction for refusing to be vaccinated.
More recently, service members challenged the military’s requirement to obtain the anthrax vaccination. Those who refused and were prosecuted, likewise did not win on appeal.