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The Recission of the COVID-19 Vaccine Mandate and Its Impacts on Service Members

Military Law

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The passage and signing of the 2023 National Defense Authorization Act required prompt action on the part of the Department of Defense (DoD) to rescind its COVID-19 vaccine mandate. Service members have been left in limbo over the last two weeks while questions lingered about the impact the new policy would have on their careers. On January 10, 2023, some of their questions were answered when the DoD published its official policy memo, “Recission of August 24, 2021 and November 30, 2021 Coronavirus Disease 2019 Vaccination Requirements for Members of the Armed Forces.”

The new policy prevents the U.S. Armed Forces from separating current service members “solely on the basis of their refusal to receive the COVID-19 vaccination if they sought an accommodation on religious, administrative, or medical grounds.” Additionally, the policy instructs the Secretaries of the Military Departments to end all ongoing reviews for service members who are still pending a decision on an administrative, medical or religious exemption to the COVID-19 vaccine mandate.

With that being said, other departmental policies and procedures regarding immunizations will remain in effect. The departments still maintain the authority to take into consideration a service member’s immunization status when making decisions regarding deployment, assignment, and other operational decisions.

For the thousands of service members who had their requests denied and were issued reprimands, the new policy calls for the removal of that bad paperwork. However, questions still linger for those who received a reprimand and were barred from favorable personnel actions, such as promotion, and for those officers who were two-time non-selects for promotion to the next higher grade as a result of that bad paperwork.

The policy also provides guidance for the thousands of service members who were already separated over COVID-19 vaccine refusal and directs them to apply to their respective Military Department’s Discharge Review Boards if they received a characterization of service of Under Other Than Honorable Conditions. Questions still linger for these individuals regarding their ability to reenlist following separation when the sole basis for their separation was a failure to become vaccinated. Those individuals seeking a change to their RE code must petition their respective branch’s Board for the Correction of Military/Naval Records.

If the past several years have proven anything, it is that service members seeking relief following the denial of a religious, administrative, or medical exemption request will likely face an uphill battle fraught with resistance. No matter how the vaccine mandate has impacted a service member, it is important to seek experienced counsel who can advise you of the options available to you, such as backdated promotion actions, requests for special selection boards, and requesting a change to your discharge characterization or re-enlistment code.

Eric Duncan is a senior associate in Tully Rinckey PLLC’s Buffalo office, where he focuses his practice on military law. Prior to joining Tully Rinckey, Eric served in the Infantry of the United States Marine Corps. After transitioning from military service, Eric completed law school, where he conducted research into veteran groups and resources and worked as a founding member of the Veterans Legal Practicum at the University at Buffalo School of Law. Eric takes pride in defending our nation’s men and women in uniform. He can be reached at (888) 529-4543 or at info@tullylegal.com.

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