Punishment looms for U.S. troops who refuse COVID shot

August 13, 2021

It’s not mandatory…yet. But in the next few weeks, U.S. troops might be ordered to get the COVID vaccine. Or else.

This week, Pentagon spokesman John Kirby said the FDA could fully approve the vaccine made by Pfizer before mid-September.

“We have every expectation that once the vaccines are made mandatory the troops are going to do the right thing,” Kirby told reporters at a Pentagon news conference. “But, without speaking to the future, it’s treated, certainly, like any lawful order, and there could be administrative and disciplinary repercussions for failing to obey that order.”

Kirby also said service members will be “properly counseled” about the potential risks to their personal health and their unit’s readiness should they refuse the vaccination.

“Commanders have a range of tools, short of using the UCMJ [Uniform Code of Military Justice] available to them to try to help individuals make the right decisions,” Kirby said.

Military law expert Anthony Kuhn, a managing partner at the Tully Rinckey law firm, said “There’s no directive yet that spells out what commanders have to do.”

Kuhn told Task & Purpose commanders have several options for dealing with troops who refuse mandatory COVID-19 vaccines including issuing them a letter of reprimand or taking other administrative action; using nonjudicial punishment to push them to get vaccinated; referring troops to an administrative separation board for failure to obey an order; or even referring service members to courts-martial, as happened in the past when troops refused to get vaccinated for anthrax.

Attorney Mark Zaid represented several airmen, sailors, and Marines who were court-martialed for refusing to be vaccinated for anthrax. The Defense Department accused them of failing to obey a lawful order under Article 92 of the Uniform Code of Military Justice.

“All avenues of punishment will be available to the different services, to include imprisonment and the ending of their military careers,” Zaid said. “Unlike with the anthrax vaccine, we’re in the midst of a pandemic so I envision DoD will act swiftly and harshly with legal action against refusers.”

Butch Bracknell, a retired Marine lieutenant colonel who served as a legal advisor for the 1st Marine Division, said a limited number of troops may be able to claim medical or religious exemptions.

However, because the Department of Defense is treating COVID-19 vaccination as a readiness issue, medical exemptions may result in medical separation.

And regarding religion, Courts will look at the legitimacy of the religion, including whether it has governing texts, a holy book, and a history, according to Bracknell.

“You can’t make up a religion saying, ‘I am now a worshipper of sunflowers and these are the tenants of my faith,’” Bracknell said. “You just can’t make up some s—t.”

Hoo boy. Some people may feel the “readiness issue” is some made-up s-t too, but oh well.