Separation proceedings for officer convicted of refusing coronavirus vaccine
A military judge convicted First Lieutenant (1LT) Mark Bashaw, but did not punish him, in the first known COVID court-martial on April 29, 2022. Even though the judge declined to dismiss 1LT Bashaw, the Army has initiated separation proceedings. According to Stars and Stripes, 1LT Bashaw's company commander recently began the process to terminate 1LT Bashaw’s service due to the failure to get vaccinated.
Stars and Stripes provides some background to 1LT Bashaw’s refusal in their piece. It writes that he “has taken a strong religious stance against receiving the coronavirus vaccine, ” but does not lay out the basis for the religious objection in much detail. The article also notes that the Army denied 1LT Bashaw's request for a religious exemption from the vaccine.
The inability to receive religious exemptions for the COVID vaccine has been common for military members. Earlier this year, a federal district court in Texas granted an injunction blocking the separation of navy seals who had their religious exemptions denied, finding the Naval process was discriminating against those with religious objections. The Supreme Court later lifted the injunction. Nonetheless, it appears the threat of protracted litigation has the Navy temporarily halting separations where personnel has made a request for a religious exemption.
One necessary component to the request for a religious exception is the sincerity of the religious belief. A key question when it comes to the sincerity of determining the religious beliefs of military members is the extent to which one has refused vaccines in their military career. That is, if the objection is to the coronavirus vaccine in particular, but the military member has been taking all other required vaccinations, then it should be a relatively easy case to find the belief is not a sincere religious one.
The last time there was much opposition to a military vaccine mandate was the anthrax vaccine, although the level of opposition to that vaccine appears to have been much lower. Military Times says that an estimated 350 servicemembers refused the anthrax vaccine from 1998 to 2000. The United States Naval Institute writes that as of May 9, 2022, over 3,800 servicemembers have been separated for refusing to take the coronavirus vaccine.
Given the exponential uptick in vaccine refusals from anthrax to coronavirus, and given the culture and media landscape in today’s U.S. it just seems that the opposition to the coronavirus vaccine has been boosted, in large part, by contemporary political battles. Resistance to personally receiving the vaccine is strongly correlated with party affiliation. Refusing the coronavirus vaccine, to many, does not appear to be a religious awakening.
Returning to 1LT Bashaw, the Stars and Stripes article linked above does not clarify whether 1LT Bashaw consistently refused vaccines on religious grounds through his 16-years of service. Regardless, however, 16-years of service will likely help 1LT Bashaw in his upcoming proceeding.
Officers who have served less than 5 years, like most 1LTs, do not get the benefit of an Army Board composed of three officers from outside the chain-of-command. That Board will hear his case, consider the evidence, and then make a recommendation on separation. If that Board votes for retention, the Army cannot separate 1LT Bashaw. For officers with less than 5-years of service, decisions to separate go through the chain-of-command without an independent hearing before being forwarded on to the Commanding General, Human Resources Command. So with that board of three officers, if any two of them are sympathetic to the arguments put forward by 1LT Bashaw, then he will be retained in service.
Speaking of contemporary political issues, of potential interest in this entire matter, according to the Army Times article from May 3, 2022, Colonel (COL) Yevgeny Vindman appears to be the responsible Staff Judge Advocate for the unit that court-martialed 1LT Bashaw. As you may recall, COL Vindman was dismissed from the National Security Council in February 2020, after President Trump's first impeachment. An IG report later determined the Trump White House retaliated against COL Vindman.
Josh Grubagh, Guest Commenter.
Josh is currently an Army Reserve JA and has his own civilian practice in Connecticut.
Disclaimer: Posts are the authors' personal views and do not reflect the position of any organization or government agency.
-Current Term Opinions
Joint R. App. Pro.