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Air National Guard board finds military's shaky COVID vax mandate unlawful, as West Point holds out

The unanimous decision by the Air National Guard board sets a precedent for future tests of the Pentagon's teetering vaccine mandate.

Published: September 23, 2022 9:07pm

Updated: September 24, 2022 11:31pm

In a unanimous decision similar to the Navy's in the spring, an Air National Guard administrative separation board voted to retain a service member who refused to comply with the military's COVID-19 vaccine mandate, while West Point found an unvaccinated cadet guilty of misconduct. 

On Wednesday, an Air National Guard administrative separation board voted 3-0 to retain Technical Sergeant (TSgt) Jacob Byers after finding he didn't commit misconduct by refusing to follow an order to take the COVID vaccine. 

The Air National Guard administrative separation board determines whether to retain or separate a service member. 

The board found that the vaccine order was unlawful for the same reason as did the Navy administrative separation board, namely that the mandate was for the experimental COVID vaccines approved under FDA emergency use authorization (EUA). The military has not made fully FDA-approved versions of the vaccines available to military members. The Coast Guard, however, has claimed that it has the Pfizer Comirnaty vaccine, which is fully approved by the FDA. 

During the board hearing, which went from Monday through Wednesday, Byers' military attorney presented a whistleblower report sent to Congress regarding the Comirnaty vaccine. 

The whistleblower report alleges that the Comirnaty vaccine available at some military clinics is not actually the fully-approved FDA version of Pfizer's vaccine, but, rather, the EUA version. The military can only legally force service members to receive vaccines that are fully approved by the FDA, the lawyer argued. 

Byers was on active duty for eight years before joining the Air National Guard, where he had a full-time, active-duty position in the Active Guard Reserve (AGR). He was removed from that position in February after receiving a letter of reprimand in December for refusing the vaccine. 

Following removal from his AGR position, Byers returned to his previous, full-time, position as a dual status federal technician. He was then served with involuntary discharge papers. In May, he resigned from his federal technician position because he was afraid of being discharged and losing the full-time job. Byers then took a civilian job while remaining in the Air National Guard. 

R. Davis Younts, an Air Force Reservist and Judge Advocate General's Corps (JAG) lawyer who represents Byers, was unable to defend his client before the board in his military capacity because the Air Force wouldn't allow him to travel as he's unvaccinated. Instead, Byers' case was presented before the board by another military lawyer, with whom Younts shared the information previously used at the Navy administrative separation board regarding the vaccine distinctions. 

"The Air Force did not and could not prove that an FDA approved vaccine was available," Younts told Just the News on Thursday. "According to the JAG legal advisor at the Board this was the first Air National Guard Board. TSgt Byers will be retained in the Air Force."

Because this was the first case regarding the COVID vaccine mandate to come before an Air National Guard board, it set the precedent for following cases. 

Unlike the Air National Guard and Navy, however, the West Point administrative separation board has not accepted the distinction between the FDA's fully approved vaccines and those under the EUA. 

In a case decided on Wednesday, the West Point board — hearing its second case regarding the vaccine mandate — found the mandate to be a lawful order, just as it found in the first case. 

Younts, who represented the cadet before the West Point board, said that rather than focusing on the order regarding the vaccine, the board was more concerned about whether the cadet would follow future orders based on his religion. The cadet had submitted both a religious accommodation request and a medical exemption request regarding the vaccine mandate, both of which were denied. 

United States Corps of Cadets Senior Medical Officer Colonel Laura K. Dawson admitted that no West Point Cadet had been hospitalized as a result of COVID, Younts said. 

Under cross-examination, Dawson admitted that she didn't know whether the Comirnaty vaccine was available to cadets. Additionally, she testified that cadets could have obtained an alternative vaccine by traveling to Canada. The Canadian border, however, is closed to unvaccinated Americans and isn't expected to open to them until Sept. 30

"The Board made it clear in their findings and recommendations that a Cadet with a strongly held and sincere Christian faith was being eliminated from West Point because of his faith," said Younts. 

"Despite clear evidence of blanket denials of religious accommodation requests and the failure of the military to follow Federal law concerning providing military members with an FDA approved and fully licensed product," he added, "achieving the political goal of full compliance with the vaccine mandate appears to be more important than the Constitutional and legal Rights of Cadets."

West Point didn't immediately respond to a request for comment on Friday.

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