The military has lifted its vaccine mandate but won’t automatically reinstate troops who defied it

At issue: Should ex-troops continue to face consequences for refusing the vaccine order, even though the order has been rescinded?

By Desiree D'Iorio, American Homefront ProjectFebruary 14, 2023 11:25 am

From the American Homefront Project:

Though the military is now allowing troops to serve even if they refuse the COVID vaccine, it’s less clear what will happen to about 8,400 people who were discharged for refusing it — or who left voluntarily.

Congress overturned the Pentagon’s vaccine mandate in December, reversing a policy Defense Secretary Lloyd Austin put in place in 2021.

Department of Defense spokesperson Sabrina Singh said mandate or not, the Department’s recommendation is simple.

“Even though we have rescinded the vaccine mandate, we’re going to continue to encourage our service members, our civilians, to take the vaccine,” Singh said. “It’s free, it’s easy, it will save your life.”

Singh said the Pentagon will not automatically reinstate people who refused the shot while the mandate was in place. It also won’t give them back pay.

“If they wanted to rejoin the military, they would have to follow the process, just like anyone else who would want to join for the very first time,” Singh said.

For advocates and some congressional Republicans who argued the vaccine should have been optional all along, the repeal doesn’t go far enough.

“On the one hand, it stops the mandate going forward,” said Mat Staver, co-founder of the Liberty Counsel, a Christian ministry organization that advocates for religious freedom. “But on the other hand, there are people that have been discharged and/or are currently in the military under punishment, and that has to be resolved.”

Staver said the mandate was unconstitutional from the start because it infringes on the religious and free speech rights of service members. The U.S. Supreme Court last year upheld the Navy’s right to re-assign sailors who refuse the vaccine, with Justice Brett Kavanaugh writing that the courts should defer to the judgment of military commanders.

But Staver has filed additional lawsuits on behalf of former service members who applied for a religious exemption but were denied.

“Those that have been separated for any reason whether they have religious or non-religious objections to these mandates should be allowed to return with back pay,” Staver said.

The Pentagon has skirted questions on the precedent set by active duty troops who refuse a lawful order that is later overturned. But some observers worry about the message the military would send if it allowed those troops to come back without any consequences.

“The order was lawful at the time, and if you decided not to follow it then you do so at your own peril,” said Robert Sanders, a retired Navy lawyer who now teaches national security at the University of New Haven in Connecticut.

He said unvaccinated troops could create a long-term readiness problem.

“If we want to voluntarily send folks to other countries, there may be a requirement for them to be vaccinated,” Sanders said. “And if we can’t send a whole unit that’s vaccinated, or we have key members in the unit that aren’t vaccinated, mission ability and readiness can fail.”

Currently, around 98% of the armed forces have gotten the shots. But now that the vaccine is no longer mandatory, it’s not clear whether that almost perfect record will hold.

In General Austin’s memo announcing the repeal of the vaccine mandate, he stood by the requirement, saying it left a lasting legacy and boosted the military’s readiness during a public health crisis.

This story was produced by the American Homefront Project, a public media collaboration that reports on American military life and veterans.Funding comes from the Corporation for Public Broadcasting.

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