By JAMES D. MUHAMMAD and THOMAS L. REMPFER
Over the past year American troops who exercised their legally protected medical rights were wrongfully sidelined over Covid vaccine mandates. Some were discharged while others had their careers stalled.
They should all be made whole.
These troops deserve fully reinstated careers, ASAP! The first step is the recent legislative action by Congress which halted the military vaccine mandate via the National Defense Authorization Act of 2023. The president signed it into law and the military stated it will “fully comply.”
American service members have been down this road before. Almost 20 years ago, the mandatory anthrax vaccine program was halted after federal courts found its licensing unlawful. Subsequently, the first-ever application of the Emergency Use Authorization, or EUA, law served as an interim fix to provide anthrax vaccine on a voluntary basis to troops until the FDA properly completed the licensure. This inaugural EUA is the intersection with Covid vaccine mandates. Unfortunately, the optional consent precedent was ignored for troops and all Americans when EUA Covid vaccine mandates began nationwide in 2021. Fortunately, most mandates were declared illegal or halted through injunctions.
The federal court only allowed optional EUA anthrax vaccine to be offered to our troops with their “prior consent.” After being taken to task in court, the military also acceded to “no penalty,” no loss of entitlement, no punishment, and guaranteed troops would “still be deployable.” The precedent is memorialized in the Federal Register. The Code of Federal Regulations further affirms this language in Title 21, Section 50.25, regarding human protection and informed consent, where “consequences” pertain to medical issues.
With anthrax vaccine, Title 10, Section 1107, of the United States Code was invoked to provide cover over 20 years ago from the illegal mandate. Similarly, Title 10, Section 1107a, should have protected our troops today from EUA COVID vaccine mandates. Title 21, Section 360bbb-3, affords the same protections for all citizens regarding the “option to accept or refuse” EUA products, which are not biosimilar or interchangeable with any approved vaccines. Ignored laws and disregarded precedents aside, the realities of COVID vaccination efficacy, while not blocking infection or transmission, raised serious doubts for Congress about the wisdom of continued mandates.
In contrast to the anthrax vaccine mandate, halted by judicial rulings, the current Covid vaccine military mandate is being repealed through unprecedented legislative action. Corrections over anthrax vaccine injustices were almost nonexistent due to the decades-long diversion caused by the anthrax letter attacks of 2001. Those attacks, perpetrated by an Army scientist responsible for the vaccine program, disrupted justice for approximately 1,000 punished troops. Ten years later, the FBI found the “motive” for the anthrax mailings was to evoke fear and to save the “failing” anthrax vaccine. The FBI took so long that neither the Congress nor the courts ever held the military accountable for the underlying legal violations.
This time around, Congress is promptly encouraging repair of the Covid vaccine injustices near real-time. The NDAA rescinds the mandate and asks military leaders to “consider such requests for correction of military records and reinstatement.”
But our experience with military correction boards represents a cautionary tale. It took us 15 and 10 years, respectively, to have our records and ranks corrected.
In Sgt. Muhammad’s case, his discharge was upgraded to fully honorable, rank restored, Good Conduct and Global War on Terrorism Expeditionary Medals backdated, and VA benefits reinstated. Col. Rempfer was awarded a lost command credit and a missed promotion. But tens of thousands more, over many decades, received no justice. The deference and delays permit the military to conduct record corrections like a military operation, granting little quarter, with over 95% of cases being denied.
Based on our two decades of experience in navigating this battlespace, we recommend proactive directives from the top of the chain of command to unilaterally alter this trust-eroding paradigm. The commander in chief, secretary of defense or service secretaries should ensure that prompt corrections and reinstatements occur. With almost 10,000 troops already discharged, leaders should swiftly craft a policy to upgrade all discharges to fully honorable, including reenlistment codes that permit return to service.
This historic juncture provides “good reason for higher authority to resurvey its own judgments,” in the words of Armed Forces Officer, published in 1950 by the Department of Defense. It’s time to reverse any adverse or withheld personnel actions. Corrections should not require troops to apply for redress. Accountability encourages decisive leadership versus requiring troops to submit individual applications or endure lengthy corrections processes designed to attrit.
If the military disregards the discretion granted by Congress, and our troops are deserted regarding record corrections, then our civilian authorities should order the institution to fix it in a timely manner. Serious consideration should also be given to correcting the historic inequities related to the anthrax vaccine program injustices.
Now that Congress has spoken, it’s time for leaders to fly high cover for our troops and direct the repairs to readiness and recruitment that our troops and citizens so justly deserve.
Sgt. James D. Muhammad, a Marine Corps veteran, and Col. Thomas L. Rempfer, an Air Force retiree, manage Hoping4Justice.org to inform public officials and our nation’s troops about record corrections.
This column first appeared at Military Times.