The COVID-19 pandemic prompted unprecedented public health responses globally, and the U.S. military was no exception. Implementing a vaccine mandate among its ranks was seen as essential to maintaining operational readiness and protecting the health of service members.
During the nearly year and a half that the vaccine was mandatory, thousands of troops unsuccessfully sought medical or religious exemptions from the vaccine, including 8,945 soldiers, 10,800 airmen and guardians, 4,172 sailors, and 3,717 marines.
However, the mandate, which significantly impacted military personnel policies, was eventually rescinded. Given the repeal of the vaccine mandate, those who faced discharges due to their refusal are now eligible for legal recourse, including seeking a discharge upgrade and possibly seeking backpay and reinstatement.
The Rise and Fall of the COVID-19 Vaccine Mandate in the U.S. Military
In August 2021, the Pentagon announced that all active-duty military personnel would be required to receive the COVID-19 vaccine (see the August 24, 2021, memorandum). This directive came shortly after the Food and Drug Administration (FDA) approved the Pfizer-BioNTech COVID-19 vaccine. The decision aimed to protect the health of the military forces and ensure readiness without the interruptions that quarantine and outbreaks would necessitate.
The mandate required troops to be vaccinated or face potential consequences, including possible discharge for those who refused without a permitted exemption (medical or religious). The mandate was fully enforced across all branches, with deadlines set for completion of the vaccine series.
The mandate was met with mixed reactions. While many in the military complied, a small but vocal segment opposed it, citing personal health concerns, religious beliefs, and freedoms. Legal challenges arose, and some service members sought exemptions, which were granted in limited cases.
The controversy primarily centered around personal autonomy versus collective health benefits. This tension reflected broader national debates, but the stakes were uniquely tied to readiness and national security within the military.
By January 2023, the political landscape had shifted with the new Congress, and pressures mounted to reassess the necessity and impact of the mandate. Critics argued that the mandate was no longer justified given evolving circumstances, including higher population immunity levels, the availability of treatments, and changes in public health guidelines concerning COVID-19.
In response to these developments and legislative pressure, including stipulations in the annual defense policy bill, on January 10, 2023, the Department of Defense officially rescinded the vaccine mandate. See the January 10, 2023 memorandum. The decision was part of broader efforts to normalize COVID-19 protocols in line with civilian practices and to address the ongoing controversy that some argued was affecting recruitment and retention.
Impact of the Repeal of the Vaccine Mandate
The repeal of the COVID-19 vaccine mandate in the U.S. military marked a significant shift in military health policy and had profound implications for service members, particularly those affected by the mandate before its rescission. The decision altered the landscape of ongoing military vaccination policies and opened up discussions about the rights of those disciplined or discharged for non-compliance.
Here, we explore how the repeal impacts service members in terms of discharge upgrades, reinstatement, and potential back pay.
A. Discharge Upgrades
Many service members who refused the COVID-19 vaccine faced various administrative discharges, including general and other-than-honorable (OTH) conditions, depending on the circumstances and the individual’s service record. These discharges can significantly impact a veteran’s life, restricting access to benefits like the GI Bill, VA home loans, and, sometimes, civilian employment opportunities.
With the mandate’s repeal, there is a strong basis for affected service members to seek discharge upgrades. The argument is twofold:
- Equity and Fairness: Those discharged solely based on non-compliance with a vaccine mandate that is no longer in effect may view their punishment as disproportionate or no longer justified, pushing for a reassessment of their cases.
- Legal and Administrative Precedents: The repeal can also be used to argue that the policy change reflects a shift in the military’s stance toward the necessity of the COVID-19 vaccination, which could be leveraged in favor of upgrading discharges related to the mandate.
As of May of 2024, few discharge upgrade cases regarding COVID-19 refusal cases have been decided. Those cases that have been settled, however, are encouraging. For example:
- In AFDRB Case FD-2023-00309, the applicant was discharged with a General Discharge for Misconduct (Minor Infractions). The applicant’s service record included multiple reprimand letters. His misconduct included failing to receive the COVID-19 vaccine and failing to comply with weekly COVID-19 testing procedures. After reviewing the matter, the Board found the discharge was inequitable and, therefore, changed the characterization of service to “Honorable,” the narrative reason for separation to “Secretarial Authority,” and the reentry code to “3K.”
- Likewise, in AFDRB Case FD-2023-0020, the applicant was discharged with a General Discharge for Misconduct (Minor Infractions). The applicant’s record of service included an Article 15 and a Letter of Reprimand. Her misconduct included refusing to receive the vaccine despite medical counseling regarding it. After reviewing the matter, the Board found the discharge was improper and inequitable and, therefore, changed the characterization of service to “Honorable,” the narrative reason for separation to “Secretarial Authority,” and the reentry code to “3K.”
- Finally, in AFDRB Case FD-2023-00464, the applicant was discharged with a General Discharge for Misconduct (Serious Offense). The applicant’s service record included an Article 15 and a vacation of suspended non-judicial punishment. His misconduct included willfully disobeying the order to receive the COVID-19 vaccine. After reviewing the matter, the Board found the discharge was improper and inequitable and, therefore, changed the characterization of service to “Honorable,” the narrative reason for separation to “Secretarial Authority,” and the reentry code to “3K.”
Notably, none of the cases above included allegations of misconduct for anything other than refusing to comply with the COVID-19 mandate. It should be noted that if a service member’s service record consists of events that would establish that their discharge was based on events other than their refusal to take the COVID-19 vaccine or other aggravating factors exist, their discharge would be evaluated accordingly. In short, the Board would examine whether the applicant would have received the same discharge under current policies.
B. Reinstatement and Back Pay
In addition to seeking a discharge upgrade, servicemembers can also seek reinstatement and possibly backpay.
- Reinstatement: Those who were discharged might seek reinstatement, especially if they had exemplary service records before their discharge over vaccine refusal. The process for reinstatement will likely involve legal proceedings and negotiations.
- Back Pay: There might also be the possibility of claiming back pay for the time the service member was out of service. As of January 2023, the Pentagon made clear that they were not currently considering providing back pay to service members who were discharged after refusing the COVID-19 vaccine when it was mandated; however, some members of Congress have asserted that they will act to add language to the 2024 National Defense Authorization Act to provide back pay and restore full benefits for those who were discharged. Thus, backpay may be available shortly.
How the Discharge Upgrade Process Works
Upgrading a military discharge begins with an application to the Discharge Review Board (DRB) or the Board for Correction of Military Records (BCMR). This process can be complex and detail-oriented, requiring thorough preparation and precise documentation, including:
- Personal statements
- Witness statements
- Relevant medical records
- Evidence of good conduct before and after service
- Legal briefs and arguments focusing on the unjust or incorrect nature of the original discharge
For more information, read our Complete Guide to Military Discharge Upgrades.
Moving Forward
For those impacted by discharge due to refusing the COVID-19 vaccine, it’s important to remember that you have options. A discharge upgrade can significantly improve your quality of life and future opportunities. If you believe your discharge was unjust or improperly handled, consulting with a military law firm could be a decisive step toward rectifying your military record.
If you’re considering seeking an upgrade to your military discharge, we at the National Security Law Firm are here to help. Our team of experienced military lawyers understands your challenges and can guide you through each step of the process. Contact us today to discuss your case and explore your options for a brighter future.
Why National Security Law Firm?
Service members considering discharge upgrades or reinstatement should consult with experienced military discharge upgrade attorneys to navigate this complex and evolving area of law effectively. This approach will help them understand their rights and provide a clear strategy for moving forward under the new policy regime.
At the National Security Law Firm, we specialize in discharge upgrades. We understand the nuances of military law and the complexities surrounding vaccine mandate refusals. As such, we are equipped to review your discharge case and advocate for an upgrade based on several factors, including:
- Equity and Propriety: We can often argue that the discharge was neither equitable nor proper, especially if it disproportionately affects your post-service life.
- Changing Policies and Public Perception: As public health policies and perceptions evolve, new grounds may exist to challenge or appeal your discharge.
- Procedural Errors: If there were any errors in how your discharge was processed, this could provide a valid angle for an appeal.
Navigating the discharge upgrade process can be daunting. A military law firm can provide guidance and effectively represent your interests. Lawyers with experience in military law can craft a compelling case for why your discharge should be reevaluated. They can also help manage the extensive paperwork, ensure deadlines are met, and present a strong argument to the review boards.
At National Security Law Firm, we aim to provide transparent and reasonably priced legal services to our clients for discharge upgrades. More importantly, we pride ourselves on providing our clients with experienced and high-quality legal representation.
Call us today for a free consultation to speak with an attorney regarding your discharge upgrade.
Additional Resources
Complete Guide to Military Discharge Upgrades
