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Can military members be discharged for refusing to take the vaccine?

On Behalf of | Oct 11, 2021 | Military Law |

If there’s anyone who does not know: COVID has been a major news story for almost 2 years now. Beginning in early 2020 in Wuhan. China, the virus quickly spread to the United States and throughout the world. Every country has been in a varying state of panic ever since.

Most recently, in early September, Joe Biden issued an executive order for all private companies with 100 employees or more, and all federal workers and those who contract with the federal government to be vaccinated. This mandate includes the Department of Defense and any of its subsidiary organizations.

What are your rights?

If you are a military member who is opposed to taking the vaccine, you need to know your rights.

It is important to note that COVID-19 vaccination has been a hotly debated topic since the beginning of this pandemic. There are reasons for people to get the vaccine and reasons to refuse it. The focus here is not on whether someone should get the vaccine; we are focusing on your rights as a military servicemember if you happen to be opposed to taking the vaccine.

On the surface, it looks like you could be in some trouble if you refuse the vaccine. Under the Uniform Code of Military Justice (UCMJ), this could fall under Article 92: Failure to Obey an Order or Regulation. Biden’s vaccine mandate could be considered a direct order from the country’s Commander-in-Chief. Thus, refusal to comply could fall directly under Article 92.

Failure to comply could lead to a court martial or, at minimum, administrative separation.

Other possibilities

For military members who do not want to take the vaccine, a couple of options exist. First, doctors can issue medical exceptions for patients who would likely be harmed by taking the vaccine. Second, there are religious exceptions available, though time will tell whether the current administration will honor these exemptions.

Another possibility involves the constitutionality of the vaccine mandate. Simply put: Article 92 creates a positive duty to obey orders from appropriate authorities. If the mandate is found to be unconstitutional, it is thus beyond a president’s scope of authority to issue. As such, it not considered the type of order a military servicemember is required to obey under Article 92.

If you are a servicemember opposed to taking the vaccine, the most important thing you can do is talk with an experienced military law attorney about your rights and options. This is still a very unsettled area of law, so time will tell how the law develops. In the meantime, you need to protect yourself and your rights.