Losing the battle? Pentagon COVID-19 vax mandates tottering under legal scrutiny
"It is extremely hard for my clients to understand what the primary motivation is for the DOD to continue to push the mandate and refuse to recognize natural immunity, adverse events associated with the vaccine, and the ongoing loss of highly trained and qualified personnel," said attorney R. Davis Younts.
The Pentagon's military-wide COVID-19 vaccine mandate faces an uncertain future amid a series of successful legal challenges to the sweeping order mounted by religious objectors in federal courts and military disciplinary proceedings.
On Thursday, a district court judge in Ohio granted a temporary injunction against the COVID vaccine mandate being enforced on Air Force members seeking religious exemptions. This followed a ruling in March by a district court judge in Texas who granted a preliminary injunction against the Navy for the same reason.
In May, a Navy administrative separation board voted unanimously to retain an officer who refused to comply with the mandate because of his religious beliefs. The board was unconvinced the mandate was lawful and did not view the officer's refusal as misconduct.
The panel agreed with the officer's lawyer, R. Davis Younts, who argued at the board hearing that the mandate for the experimental COVID vaccines was not a lawful order since the military has not made fully FDA-approved versions of the vaccines available to military members.
In June, the Air Force backed away from a court-martial to try a Christian officer who refused the vaccine.
The officer, Master Sergeant Vincent White, was served an "Article 15" non-judicial punishment in April, which is an allegation of violation of a lawful order. When White declined to accept the punishment and requested a trial by court-martial instead, the Air Force rescinded the punishment, but still intends to take his case to an administrative separation board.
At the time, Younts, who also represents White, told Just the News, "It'd be a significant embarrassment and a huge blow to the Air Force to have a judge rule [the mandate] an unlawful order or have a jury find ... that it's not a lawful order."
If the vaccine order was found to be unlawful through a court-martial trial, it "would set a precedent that other military judges would be likely to follow," Younts explained.
According to the Pentagon, nearly 270,000 military members, or 13% of the total force, are not fully vaccinated, which doesn't include those who aren't vaccinated at all. About 20,000 of those not fully vaccinated have been granted temporary or permanent exemptions.
The last deadline for a military branch — the Army National Guard — to have its members fully vaccinated passed at the end of June. About 14,000 Guardsmen said they had no intention of receiving the vaccine, with about half of them seeking exemptions, mostly religious.
Earlier this month, about 40,000 Army National Guardsmen and 22,000 Reservists were cut off from military benefits as they were prohibited from participation in their military duties because they weren't vaccinated. Another 1,148 active-duty soldiers have been removed from the Army for the same reason.
These force disruptions come at a time when the military is struggling to meet its recruitment goals.
Younts warns that the vaccine mandates are harming military readiness.
"There is no question that the loss of tens of thousands of highly trained military members has an impact on the military," he told Just the News on Thursday. "Not just on readiness but also on morale. My initial clients were a large group of Navy SEALs and fighter pilots. Experts like those individuals take years to train and they are extremely difficult to replace.
"I believe that the downturn in recruiting is connected to DOD policies related to the vaccine mandate as well as the discrimination against conservative Christians who have a Biblical view of marriage.
"It is extremely hard for my clients to understand what the primary motivation is for the DOD to continue to push the mandate and refuse to recognize natural immunity, adverse events associated with the vaccine, and the ongoing loss of highly trained and qualified personnel. The continued push feels extremely vindictive and political to my clients.
"It is my hope that federal courts will grant similar injunctions for all branches of the service and that Congress will act to force the military to end a mandate that is not supported by science and is having a devasting impact on military morale and readiness."
Younts is a lieutenant colonel in the Air Force Reserves and a Judge Advocate General's Corps lawyer privately representing several military members seeking religious exemptions to the vaccine mandate. His appeal of the rejection of his own religious accommodation request for an exemption was denied, but he believes the Ohio district court judge's injunction will allow him to retire from the military.
Sen. Marsha Blackburn (R-Tenn.) has introduced legislation that would prevent federal funds from being "used to require a member of the National Guard to receive a vaccination against COVID-19." Rep. Thomas Massie (R-Ky.) introduced a similar bill in the House last month that applies to the entire military.
A Department of the Air Force spokesperson told Just the News on Friday regarding the Ohio district court judge's temporary injunction of the vaccine mandate that "The Department of the Air Force will comply with the court order."
The Facts Inside Our Reporter's Notebook
- district court judge in Ohio granted a temporary injunction against the COVID vaccine mandate
- uling by a district court judge from Texas in March who granted a preliminary injunction against the Navy
- Navy administrative separation board voted unanimously
- Air Force backed away from a court-martial trial
- nearly 270,000 military members
- granted temporary or permanent exemptions
- 14,000 of the Guardsmen said they had no intention of receiving the vaccine
- 40,000 Army National Guardsmen and 22,000 Reservists were cut off from military benefits
- military is struggling to meet its recruitment goals
- introduced legislation that would prevent federal funds
- introduced a similar bill in the House last month that applies to the entire military