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“It is not a legal order if it does not serve a government purpose, if it is unconstitutional – such as an order to incriminate you, or if it orders you to commit a crime,” said the lawyer for military justice Eugene Fidell, who is a lawyer. to Feldesman Tucker Leifer Fidell and Assistant Professor at New York University School of Law.
Once the FDA approves the available vaccines, “there is no defense” the order would be unconstitutional, noted Fidell, who also expects a presidential waiver to carry the same level of authority. .
“I think it would be supported. And the people who refuse the shots at that point will be in trouble,” he added.
But that doesn’t mean military personnel wouldn’t try to use a presidential waiver-induced warrant as a defense to refuse vaccination.
“I absolutely anticipate that the military could file a complaint and seek an injunction preventing them from having to be vaccinated,” said Carol Thompson, partner of the Federal Practice Group specializing in military law. “I think the key issue for the military is that it is still not approved by the FDA and the emergency use clearance appears to have been abused.”
If a serviceman refuses an order to be vaccinated, his commanding officer can then issue an administrative reprimand or non-judicial sanction, often referred to as NJP, Thompson explained.
Administrative reprimands are essentially written complaints that are part of a member’s permanent record and may affect promotions or career advancement. NJPs vary according to the rank, status and experience of a service member, and range from downgrading or salary reduction or suspension to honorable or non-honorable discharge. These are all punishments that would take place outside the courts.
If a service member refuses an administrative reprimand or an NJP, he could demand to be tried by court martial, which Thompson described as a civil charge similar to a misdemeanor. If the service members are tried and sentenced by a court martial and the sentence triggers an appellate review, the case is taken to the Criminal Appeal Court of the respective branch, such as the Criminal Appeal Court of the United Kingdom. army or the Marine-Marine Court of Criminal Appeal. .
If they are tried and convicted by the court of appeals, the case goes to the United States Armed Forces Court of Appeals. If a member is found guilty by this court, he or she will likely receive an honorable misconduct discharge, a misconduct discharge, or, in the case of an officer, dismissal.
The refusal of an enlisted member to carry out a legal order is a violation of article 92 of the Uniform Code of Military Justice and the punishment includes dishonorable discharge or misconduct (an officer would be dismissed), two years in detention and forfeiture of all wages and allowances, Fidell said, noting that resignations could also occur.
The Anthrax Precedent
In 1998, the military rolled out its anthrax vaccination program, although the vaccine was not approved by the FDA until 2002. An airman’s refusal to take the vaccine is now the main case – United States vs. Washington – for refusals of vaccines in the army. He went to the United States Armed Forces Court of Appeals, where the program was upheld and Airman Christopher Washington was found guilty of willfully disobeying a lawful order given by an officer superior and sentenced to discharge for misconduct and confinement for two months.
There is precedent for a serviceman to seek a preliminary injunction in a federal district court before being vaccinated. Thompson highlighted the 2003-2004 John Doe # 1 v Rumsfeld case, where Judge Emmet Sullivan issued an order preventing the military from taking the anthrax vaccine. Sullivan ultimately decided that the military could not require the military to receive the vaccine.
Anthrax vaccine is only required for troops deployed to high-risk locations, such as the Korean Peninsula, and other designated units.
However, a key distinction between the two anthrax vaccine cases and any potential cases of refusal of a Covid-19 vaccination is that the anthrax cases dealt with a serious infectious disease that is not contagious. .
James Klimaski, who practices military law and is the director of Klimaski & Associates, PC, said military personnel who refuse a required vaccination are unlikely to stay in the military long-term.
“It will not work. They can try to quit, whatever it is, but they won’t stay in the military, ”he said. Regarding a potential choice between vaccinations or frequent testing, Klimaski noted that the option is more favorable for agencies where remote work is more common.
“It might work for the Department of Agriculture or Commerce, or something or whatever that has people working from home anyway.” But in the army, no, ”he said.
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