Court-Martial Trial Practice Blog
A servicemember can refuse to take a COVID vaccine–BUT there are potential disciplinary consequences.
Military law is clear that a servicemember can be ordered to submit to vaccinations. This happens at the beginning of enlistment when you are required to have or get certain vaccinations. This is a long-standing practice when reporting to MEPS for medical screening.
When deploying to certain overseas locations vaccinations to protect against local disease are required.
For example,
- Yellow fever
- Typhoid
- Cholera
- Hepatitis B
- Meningitis
- Whooping cough
- Polio
- Tetanus
It has been a long time since the last contentious vaccination program has been in the news and in military disciplinary actions (we have included court-martial)–remember ANTHRAX? I had my shot in 1991, as did those with me when deployed to OPERATION DESERT SHIELD/DESERT STORM (Gulf-I).
Later DoD established a service-wide program. Hundreds refused “and many paid dearly” with penalties ranging from NJP to court-martial. There are cases still in the records correction process. Todd South, Troops who refused anthrax vaccine paid a high price.” Military Times, June, 17, 2021.
The most recent court-martial for refusing the Anthrax vaccine is United States v. Mixon, decided by the Navy-Marine Corps Court of Criminal Appeals in 2012. Mixon’s appeal to the Court of Appeals for the Armed Forces was denied without comment. Mixon was supposed to deploy to Afghanistan. He cited religious reasons for refusing the Anthrax and Smallpox vaccines. He had other charges of which convicted and he was sentenced to three months in the Brig and a Bad Conduct Discharge. He pleaded guilty to disobeying the order.
One of the more significant cases on vaccine refusal is United States v. Washington, from the Court of Appeals for the Armed Forces. Washington was reaffirmed in CAAF’s case of United States v. Hayes, in 2012. Washington was sentenced to two months in the Brig and a Bad Conduct Discharge for his refusal.
In Washington, the CAAF discussed the reasoning behind compelled vaccinations including for Anthrax.
- The vaccination protects against use of Anthrax as a biological weapon.
- The requirement for an effective and cohesive fighting force in peacetime as well as war makes it necessary to protect individual health and also that of those in the same unit from life-threatening or disabling disease.
Essentially, an order to take a vaccine is lawful. We all, military defense lawyers especially, know the standard rule that disobedience of orders is done at the person’s “peril” of disciplinary action.
In deciding Washington, the CAAF noted that at the time the Air Force had imposed some form of disciplinary action in over 150 cases for Anthrax refusers.
Also noteworthy from Washington is that the traditional defenses of duress and necessity do not apply to an order’s violation of refusing the be vaccinated.
In Ponder v. Stone, the NMCCA reviewed the Navy Anthrax program. They determined that the Anthrax vaccine was an FDA-licensed product and so an “informed consent” was not required for its taking.
United States v. Kisala from the CAAF is the case in which the court holds that the Anthrax vaccine was not an experimental drug requiring consent. The court notes that the Anthrax vaccine has been an approved vaccine since 1970.
COVID, like Anthrax, can be communicated to others. Therefore, there is every reason to believe that an order to be COVID vaccinated would be considered lawful and enforceable by disciplinary action up to and including court-martial. This is a situation where the safety of those in the same foxhole is considered more important.
There is language in both Washington and Kisala that might form the basis for a challenge to a COVID vaccine order. I doubt that would be successful.
Disobedience for religious reasons does not seem to be fully developed in the case law. Although the Mixon decision suggests that disobedience for religious reasons would not be a successful defense. That said, only one Service court has addressed the issue.
Talk to an experienced military defense lawyer to discuss your case if you have refused or think about refusing a COVID vaccine.