Secretary of Defense Lloyd J. Austin III issued a memorandum directing the Secretaries of the Military Departments to immediately begin full vaccination of all members of the Armed Forces under DoD authority. This includes those on active duty or in the Ready Reserve, including the National Guard, who are not fully vaccinated against COVID-19. Since this memo was released our office has received requests for information from Service members asking what happens if they refuse a COVID19 vaccine.  There may be Article 92 consequences for refusing vaccine.

What happens if I refuse the COVID19 Vaccine?

Some Service members are asking what will happen if they refuse a COVID19 vaccine. There may be Article 92 consequences for servicemembers refusing vaccine. 

For starters refusal to take the COVID19 vaccine may fall under one of two paragraphs in Article 92, UCMJ, Failure to Obey and Order or Regulation. One references a policy or regulation and the other a lawful order from a superior. The elements of this article are as follows.

 

(1) Violation of or failure to obey a lawful general order or regulation.

(a) That there was in effect a certain lawful general order or regulation;

(b) That the accused had a duty to obey it; and

(c) That the accused violated or failed to obey the order or regulation.

(2) Failure to obey other lawful order.

(a) That a member of the armed forces issued a certain lawful order;

(b) That the accused had knowledge of the order;

(c) That the accused had a duty to obey the order; and

(d) That the accused failed to obey the order.

What is the maximum punishment for Article 92 violation?

There are two versions of Article 92 that could apply to refusing to get the COVID19 vaccine. The first, violation or failure to obey lawful general order or regulation, could potentially result in a maximum punishment of Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years. The second, failure to obey other lawful order, could potentially result in a Bad-conduct discharge, forfeiture of all pay and allowances, and confinement for 6 months. It would depend upon which variation the government charges a service member with.

Will there be any exemptions for service members to get the COVID19 Vaccine? 

Article 92 likely applies to most cases of vaccine refusal in the military services, however, the memo states that mandatory vaccination of Service members will be subject to any identified contraindications and any administrative or other exemptions established in Military Department policy. According to the CDC, the contraindications for the COVID 19 Vaccine are as follows: 

○ Severe allergic reaction (e.g., anaphylaxis) after a previous dose or to a component of an mRNA COVID-19 vaccine (Moderna or Pfizer-BioNTech)

○ Immediate allergic reaction† of any severity to a previous dose or known (diagnosed) allergy to a component of the vaccine.

Although the SecDef memo doesn’t get specific about the types of exemptions, it does say there may be administrative or other exemptions established in military department policy. According to the SecDef’s memo, the Under Secretary of Defense for Personnel and Readiness may provide additional guidance to implement and comply with FDA requirements or Centers for Disease Control and Prevention recommendations. NBC News recently reported that exemptions for vaccines of any type are extremely rare.

What happens next?

Service members who refuse the COVID19 Vaccine or are considering refusing the vaccine should know the consequences of violating Article 92. Because we have had several inquiries on this topic, we are offering 30-minute telephone consultations for a nominal fee.  If you are looking for legal guidance on navigating the administrative actions that may accompany a violation of Article 92, please contact our office to schedule an appointment at https://www.ucmjlaw.com/contact/.