The ill-advised COVID-19 vaccine mandate for US military members was repealed by the FY2023 National Defense Authorization Act (NDAA). The Defense Department policy came under significant attack by critics because religious and medical waivers were either not applied at all or not applied in a uniformly defensible manner. But it took an act of Congress, literally, to bring about some sense to the attempt to address the virus pandemic in the military – and those who resisted inoculation aren’t out of the woods yet.
John Kirby, spokesman for the National Security Council, still pushed the Biden administration’s position even after the president acknowledged the pandemic was over – while battling a bout of post-vaccination COVID-19 in quarantine. Kirby told Fox News' Fox & Friends having to be vaccinated was a valid military requirement until Congress said it wasn't. So, nearly 20,000 men and women in uniform were discharged. Even those service members who took a stand on religious or medical grounds and weren't booted out of the military may not be in the clear. Micaela Burrow, writing for The Daily Caller, explained:
"The Biden administration has officially rescinded the military COVID-19 vaccination mandate, but ongoing litigation will continue and unvaccinated servicemembers may still be subject to discipline and discharge, experts explained to the Daily Caller News Foundation. The Pentagon has 30 days to determine how to implement the mandate repeal."
Despite straightforward direction to stop requiring US soldiers, sailors, Marines, airmen, and Guardians to be vaccinated for the SARS-CoV-2 coronavirus, service members not already discharged, but facing disciplinary actions, may still be at risk. There is nothing slower or more ponderous than the administrative machinery of the Pentagon when directed to change its policies. One would think a simple message from the secretary of defense to all military commands and defense agencies – saying, "The mandate that all military members be vaccinated for COVID-19 is hereby rescinded. All nonvoluntary COVID-19 vaccinations will cease immediately." – would have been enough.
The Mandate May Be Over but Troops Still at Risk
That sort of language covers the repeal of the mandate. However, no such language addresses non-judicial, administrative punishment for troops having refused the vaccine but who were not immediately discharged. Letters of Reprimand still hang over many. "A Letter of Reprimand (LOR) is an administrative warning, or censure, given to a Soldier [Sailor, Airman, Marine, or Guardian] for failure to comply with established standards or policies. A LOR may be filed either locally or in your permanent personnel file," reads the US Army definition. The other services' definitions read similarly. Additionally, a LOR is a statement of "unfavorable information." Unfavorable information is the kiss of death for any service member wishing to make the military a career.
Since the FY2023 NDAA does not include those military members previously discharged, or with administrative punishment in the works, the Department of Defense may believe the intent of Congress does not apply. Consequently, those already discharged with "General Discharges," (less than honorable) are also left without recourse in the recent authorization legislation. What does the Pentagon do with these folks? No one should be surprised if the 30 days the secretary of defense has to implement the NDAA language comes and goes with little or no action.
First, the Pentagon will ask for relief from the 30-day requirement to accomplish the administrative tasks surrounding the legislative language, like what the phrase "rescind the COVID-19 mandate" really means. Then the DOD General Counsel and a bevy of military lawyers will work tirelessly to find a way to meet the spirit of "rescind the COVID-19 vaccination mandate" without rescinding the COVID-19 vaccine policy. At a minimum, the military will put the couple of sentences necessary to repeal the mandate into the coordination process, including all the services and defense agencies, which can be an inordinately lengthy exercise. The Defense Department can be very recalcitrant when it is directed to do something it doesn't want to do. There will be foot-dragging – count on it.
(Photo by Scott Olson/Getty Images)
Repeal of Vaccine Mandate Brings Good and Bad News
The good news is a poorly conceived and ham-handedly executed vaccine mandate is repealed. However, the bad news is conscientious service members who served honorably were booted out of the military for legitimately held religious or medical reservations about being vaccinated, and the FY2023 NDAA does not provide an opportunity for them to be rehired.
Additionally, those refusing to be vaccinated and in the process of being administratively punished could still suffer from lingering "unfavorable information" in their personnel files. Congress needs to finish the business of remediating a bad policy by passing legislation allowing the rehiring of discharged troops who want to return. Also, have DOD purge personnel records of unfavorable information resulting from refusal to be vaccinated for COVID.
The views expressed are those of the author and not of any other affiliation.
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