Flouting Congress, DOD, Army maintains military COVID vax mandate on Guard, Reserves

"The DOD's continued politicization of the COVID vaccine and their disregard for the law will have consequences," Rep. Austin Scott warned.

Published: January 6, 2023 5:56pm

Updated: January 9, 2023 5:00pm

The U.S. Army is continuing to enforce the military's COVID-19 vaccine mandate on the National Guard and Reserves, despite the recent abandonment of the controversial and legally shaky order by Congress and the Pentagon itself.

On Dec. 23, President Biden signed the National Defense Authorization Act (NDAA), the $858 billion defense spending bill repealing the mandate. On Dec. 29, the Defense Department followed suit, rescinding the mandate that has frayed military morale and resulted in the discharge of over 8,000 service members who refused the vaccine.

In rescinding the vaccine mandate, the DOD acknowledged the NDAA requires the Defense Secretary to rescind his Aug. 24, 2021 memo issuing the sweeping order.

Last week, however, the Army issued a new guidance, FRAGO 35, which reads: "The FY2023 NDAA does not address the Secretary of Defense's directive regarding COVID-19 vaccination for members of the National Guard and Ready Reserve (Annex AAAA). Commands will continue to adhere to Annex AAAA and to paragraphs 3.D.21-3.D.23 unless and until Annex AAAA is superseded or rescinded by the Secretary of Defense."

Annex AAAA, according to FRAGO 35, is a Nov. 30, 2021 memo from the Secretary of Defense that requires all National Guard members to be vaccinated, as there were "members of the non-federalized National Guard who remain unvaccinated."

However, the November memo mentioned that the August memo already required "full vaccination of all members of the Armed Forces under DoD authority on active duty or in the Ready Reserve, including the National Guard, who are not fully vaccinated against coronavirus disease 2019 (COVID-19)."

The FRAGO 35 guidance also notes that service members won't be removed from the Army for the sole reason of being unvaccinated.

"Commands will immediately suspend processing and initiating involuntary enlisted separation and officer elimination actions that are based solely on a soldier's refusal to comply with the DOD COVID-19 vaccination order," the guidance reads. "Commands will continue to adhere to other previously published policies regarding the Army's response to COVID-19 pending further guidance."

Rep. Austin Scott (R-Ga.), who serves on the House Armed Services Committee, said in a statement to Just the News on Friday: "The DOD's continued politicization of the COVID vaccine and their disregard for the law will have consequences. I look forward to working with my colleagues to fix this issue for our reservists and National Guard personnel."

Sen. Marsha Blackburn (R-Tenn.), who introduced the measure in the NDAA repealing the vaccine mandate, told Just the News on Monday, "Every single branch struggled to hit its recruitment goals last year, including the U.S. Army, which fell 15,000 soldiers short. Repealing Biden's COVID vaccine mandate on the military will help boost those numbers and keep servicemembers be focused on bolstering our national defense -- not political mandates. We expect all branches to be treated equally and follow the direction of Congress under the 2023 National Defense Authorization Act."

Military attorney R. Davis Younts, who has represented service members in lawsuits challenging the military vaccine mandate on religious freedom grounds, also denounced the Army's interpretation of the mandate's repeal.

"The Army's decision to interpret the NDAA language as not applying to the Guard and Reserve is deeply troubling and a strong indication, that without further Congressional action, the DoD will continue coercive efforts to vaccinate or separate military members," Younts told Just the News on Friday.

"There is no rational legal justification for this interpretation and it is inconsistent with clear Congressional intent, which was to end the mandate for all military members," he continued. "The Army appears to be more concerned with purging Christians, than with following the Constitution or federal law. From the beginning of the mandate, the DoD and the Army have ignored federal law, this latest policy guidance is further evidence of a lack of respect for the authority of Congress."

The Army and Defense Department didn't respond to requests for comment on Friday.

In a statement to the Daily Caller News Foundation, a DOD spokesperson said, "The Department is pausing all actions for all service members related to the COVID-19 mandate, to include separation," adding that the department is in the process of developing new policy within the 30-day window alloted by the NDAA.

An Army spokesperson told the Daily Caller News Foundation that FRAGO 35 was sent to units on Dec. 29 and repeated the statement from the DOD and the guidance about ending separations solely over the mandate.

On Dec. 21, the U.S. District Court in the Northern District of Texas ruled against the Army's vaccine mandate for 10 service members seeking religious exemptions.

Texas District Court Judge James Wesley Hendrix granted a preliminary injunction sought by six Army soldiers and four Army West Point cadets who were denied Religious Accommodation Requests (RAR) for exemptions.

The injunction prevents the Army from taking any disciplinary, punitive or separation measures against the service members in the lawsuit. However, the court ruling doesn't prevent the Army from considering vaccination status of the service members with regard to "making deployment, assignment, and other operational decisions." 

Noting that while "the Army does not dispute ... its ongoing obligation to accommodate its soldiers' religious freedom, including compliance with [the Religious Freedom Restoration Act]," the judge found that the service "has failed to prove that its ongoing imposition of the COVID-19 vaccine mandate, which indisputably burdens some soldiers' sincerely held religious beliefs, serves a compelling interest through the least restrictive means available."

Following the court decision, Liberty Counsel, a religious freedom nonprofit involved in legal challenges to the vaccine mandate, said that despite the NDAA's repeal of the mandate, "the Department of Defense must be permanently enjoined from retaliating against the service members who submitted a request for religious accommodation, and all service members who were punished, demoted or discharged must be reinstated and their records corrected."

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