What Happens to Service Members Who Refuse the COVID-19 Vaccine?

For those who have served in the military, the DoD’s mandatory COVID-19 vaccination rollout has been exactly what you would expect—a cluster of misinformation and intimidation tactics resulting in service members being harassed and threatened to take the vaccine, discouraged from submitting religious accommodation requests, and berated by leadership if they dare to question the vaccine mandate.

With the deadlines to be fully vaccinated quickly approaching, some service branches have already released guidance on how they intend to punish those who refuse to take the vaccine. These punishments may include, at least for the Navy, relief for cause, administrative reprimands, and mandatory separation processing.

MJA has successfully helped servicemembers fight unjust separation actions. If you have been notified of administrative separation or court-martial for refusing the COVID-19 vaccination and want to fight for your career, contact us today for your free consultation.

DEADLINES FOR THE U.S. MILITARY TO BE FULLY VACCINATED

The military branches have imposed varying deadlines on when service members must be fully vaccinated:

Air Force: Active-duty Airmen and Guardians must be fully vaccinated by November 2, 2021, while Air National Guard and Air Force Reserve personnel have until December 2, 2021.
Army: Active-duty Soldiers must be fully vaccinated by December 15, 2021. Reserve and National Guard units must be fully vaccinated by June 30, 2022.
Navy: Active-duty Sailors must be fully vaccinated against COVID-19 no later than November 28, 2021, and Ready Reserve Navy service members no later than December 28, 2021 (See NAVADMIN 225/21).
Marine Corps: Active-duty Marines must be fully vaccinated against COVID-19 no later than November 28, 2021, and reservists no later than December 28, 2021 (See MARADMIN 533/21 for the deadlines specific to each vaccine).

A service member is considered “fully vaccinated” two weeks after completing an approved COVID-19 vaccination series.

COVID CONSOLIDATED DISPOSITION AUTHORITY (CCDA)

On October 13, 2021, the Chief of Naval Operations announced in NAVADMIN 225/21 that the Chief of Naval Personnel will serve as the Navy’s COVID Consolidated Disposition Authority (CCDA), the central authority for adjudication of vaccine refusals.

The CCDA will be the designated show cause authority for officers and separation authority for all enlisted Sailors who refuse the COVID-19 vaccine, except those serving in an Entry Level status.

In the Marine Corps, the general court-martial convening authority (typically the first Commanding General in the Marine’s chain of command) will be the initial disposition authority for cases arising from COVID-19 vaccine refusals. Adverse administrative or judicial proceedings may be initiated by Commanders, Commanding Officers, or Officers in Charge when a Marine has refused to take the vaccine.

PUNISHMENT FOR SAILORS REFUSING THE COVID-19 VACCINATION

Sailors, for example, who refuse the COVID-19 vaccination without a pending or approved exemption “shall be processed for administrative separation” per NAVADMIN 225/21. This is an automatic requirement meaning that the Navy WILL try to boot out anyone who refuses to take the vaccine. Administrative processing may be by notification procedures for Sailors with less than 6 years of service or a separation board hearing for Sailors who have served over 6 years.

Under the new rules, a service member “refusing the vaccine” is one who has: “(1) received a lawful order to be fully vaccinated against COVID-19; (2) is not or will not be fully vaccinated on the date required by the order; and (3) does not have a pending or approved exemption request.”

In addition to initiating administrative separation processing, the CCDA retains the authority to remove a refusing Sailor’s professional qualifications including warfare qualifications, additional qualification designations (AQD), Navy Enlisted Classifications (NEC), or sub-specialties, except where the removal authority is otherwise authorized by law or Executive Order.

Local commanders have the authority to temporarily reassign Navy service members who refuse the COVID-19 vaccine based on operational readiness or mission requirements and are prohibited from allowing Sailors who refuse the vaccine to promote, advance, reenlist, or execute orders (except separation orders) until the CCDA has completed disposition of their case.

While most COVID-19 refusals are expected to be handled through administrative separation processing, the Vice Chief of Naval Operations retains the authority to impose nonjudicial punishment (NJP) or court-martial.

UNDERSTANDING THE ADMINISTRATIVE SEPARATION PROCESSING

Officers who refuse the COVID-19 will become the subject of a report of misconduct and WILL BE required to show cause for retention on the basis of Misconduct, Moral or Professional Dereliction, and Substandard Performance. The least favorable characterization of service an officer may receive will be General (under honorable conditions), unless inclusion of another basis for misconduct warrants an Other than Honorable (OTH) separation.

Enlisted Sailors who refuse the vaccine will be notified of administrative separation under MILPERSMAN 1910-142, Commission of a Serious Offense, plus any additional basis known at the time of processing. The least favorable characterization of service will also be General (under honorable conditions), unless the command includes another basis which warrants an OTH.

Enlisted service members who are separated will not be eligible for involuntary separation pay and will be subject to recoupment of any unearned special or incentive pays. Further, while separation processing is pending, Sailors who refuse the vaccine will be withheld promotion/advancement and receive adverse documentation in their military records to include adverse fitness reports and enlisted evaluations.

SENIOR MILITARY LEADERS TO BE PUNISHED FIRST

The Navy has decided that the most effective way to encourage vaccination is to threaten unvaccinated senior leaders with relief and a detachment for cause (DFC) if they do not immediately comply.

NAVADMIN 225/21 states that an “unvaccinated senior leader without a pending or approved exemption calls into question the Navy’s trust and confidence regarding their ability to ensure unit readiness or to maintain good order and discipline.”

According to the same message, however, over 98 percent of active-duty U.S. Navy service members have already completed or initiated a COVID-19 vaccination series. With such a high compliance percentage, it’s difficult to see how a senior leader’s delayed compliance with the vaccine mandate would have any impact on unit readiness.

Regardless, NAVADMIN 225/21 firmly requires that senior leaders “begin vaccination immediately.” Under the new guidance, Commanding Officers must notify senior leaders refusing the vaccine, in writing, that they have five (5) calendar days to initiate corrective action. If the senior leader does not begin a vaccination series or request an exemption within those five days, Commanders MUST relieve the senior leader and initiate detachment for cause.

NAVADMIN 225/21 defines a “Navy senior leader” as a “flag officer or flag officer select; an officer serving as a commander, deputy commander, commanding officer, executive officer, chief of staff, chief staff officer, or officer in charge; or an enlisted member serving as a command master chief, chief of the boat, senior enlisted advisor, or command senior enlisted leader.”

TERMINAL LEAVE EXEMPTION

The only silver-lining to NAVADMIN 225/21 is the “terminal leave” exemption. Thankfully, Navy service members who begin terminal leave on or before the vaccine mandate deadlines are administratively exempted from vaccine requirements.

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