Vax refusal: A uniform approach for those in military uniform

The word “compassion” generally isn’t heard much in the halls of the Pentagon, nevermind in relation to potentially thousands of service members refusing to obey lawful orders. So it is significant that the Secretary of Defense, retired four-star Army Gen. Lloyd Austin, recently urged military commanders to be compassionate when deciding appropriate consequences for service members without exemptions who refuse the vaccination for COVID-19. Compassion is indeed warranted in this context, given the hugely fraught political and societal dynamics swirling around COVID-19 responses, and in particular the vaccines currently mandated by the Secretary of Defense through his military commanders to rightly protect the readiness of the armed forces.

But much more than compassion is needed, starting with real leadership by Secretary Austin to ensure equitable and consistent treatment of all service members, regardless of branch of service, who refuse to be vaccinated.

Austin should immediately establish department-wide policy for uniform disposition of these disobedience cases: administrative separation with general discharges, and monetary recoupment of all training and education obligations that have not yet been fulfilled. 

It is fundamentally unfair, erodes military legitimacy, and makes a mockery of the statutory “Uniform Code of Military Justice” to allow the military services to dispense different consequences — potentially some criminal — for the very same misconduct. While the Marine Corps is emphasizing administrative disposition, the Air Force is threatening criminal convictions through courts-martial.

Meanwhile, Austin isn’t exercising the strong leadership this moment demands. The Defense Department’s chief spokesman reiterated this week that the services should handle vaccination refusals on a case-by-case basis, including the use of courts-martial to convict military members for disobedience, because uniformity across the services “wouldn’t be the same way we handle the orders violations for other offenses as well.” Such superficial assessment ignores the glaring fact that COVID vaccination refusal amongst today’s troops is different from other military law violations, and in important ways. This isn’t about a Marine refusing to show up for duty, or an airwoman popping positive for cocaine (ingesting illegal drugs, for example, is often charged in the military as a disobedience offense). COVID vaccination refusal is about deeply held convictions, often created by misinformation, but genuine nonetheless.

Hence a uniform approach across the services, involving administrative consequences instead of criminal convictions through courts-martial, is proportional to the misconduct and fair, and should have been established months ago. Such uniform policy would allow the military to achieve its legitimate vaccination program’s objective of ensuring a fit, ready and effective fighting force (the vast majority of military members have complied), while treating those relatively few who refuse with compassionate, consistent consequences. The current numbers prove that deterrence achieved by criminal convictions simply isn’t needed here to ensure sufficient compliance to achieve readiness. So why allow the services to pretend otherwise? 

Though a tiny percentage of military members refused to be vaccinated against anthrax a few decades ago, with criminal convictions and jail time by way of courts-martial as a consequence for some, today’s situation is different in important ways. The level of politicization of the COVID-19 pandemic and appropriate responses to it is simply unparalleled. Nothing even remotely like this existed regarding the anthrax vaccination: Anthrax wasn’t a pandemic threatening all Americans and those around the globe; anthrax predated social media and its ability to pump out misinformation, and anthrax wasn’t hijacked by high-level politicians and cultural warriors fighting today’s pitched ideological battles.

So instead of following the anthrax playbook, military commanders should exercise compassion and empathy when implementing appropriate consequences for those refusing service members — consistent administrative consequences uniformly set by DOD-wide policy. This isn’t to argue against the truism that military disobedience is serious; of course it is. The military necessarily runs on compliance with orders, ones that often involve doing very unpleasant things. Because of such seriousness, proportionate and contextually appropriate consequences for vaccination disobedience are warranted, as is leadership to ensure fair treatment across the services.

Confidence that the military treats its members fairly — and resorts to criminal consequences for military-unique crimes only when necessary — will assist future recruiting and hence serve our national security interests. And those in uniform today who volunteered to serve our nation deserve nothing less than such just treatment by their leaders.

Rachel E. VanLandingham is professor of law at Southwestern Law School, Los Angeles, a retired U.S. Air Force Lt. Col. and current president of the National Institute of Military Justice.