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Service members who were kicked out of the U.S. military for refusing the Covid vaccines could be allowed back in uniform if the vaccination mandate is lifted, according to two U.S. military and two senior defense officials.
On Tuesday, the House and the Senate released language to be included in the National Defense Authorization Act that would require the Defense Department to lift the mandate. The NDAA, the annual bill that authorizes the military’s budget, must be passed before the end of the year, and Democratic leaders let Republicans include the language to ensure its passage.
Pentagon leaders are discussing whether service members who were separated can rejoin if the NDAA is signed into law, the four officials said. They said that requests to rejoin would most likely be handled case by case but that if service members left under good circumstances — meaning they did not leave via “other than honorable” discharges — they might be allowed to sign back up.
Defense Secretary Lloyd Austin ordered in August 2021 that all active-duty National Guard and reserve service members be vaccinated for Covid or face separation. The NDAA language would direct Austin to rescind his order. It is very unusual for Congress to intervene and overturn a standing lawful order, two senior defense officials said, noting they could not immediately recall any precedent.
After Austin issued his mandate, thousands of active-duty service members were separated for refusing Covid vaccination. (Members of the National Guard who refused vaccination were not allowed to participate in drills or training, meaning they lost pay and were marked absent without cause.)
In many cases, the official reason for separation was failing to follow a lawful order. But if enlisted service members who were separated have no other bar to re-enlistment, still meet the age and fitness standards and want to rejoin, they could be allowed back in if the mandate is repealed, said a U.S. military official and a defense official. The officials said that enlisted service members might not be able to get back in at the same pay grades or ranks but that such decisions would be made case by case.
Officers would most likely be held to a different standard, the two officials said. If they left for failing to obey a lawful order, even if it is no longer a lawful order, they might not be allowed to reinstate their commissions.
Pentagon leaders are concerned about how the change could affect military readiness, said two senior defense officials, both of whom are not confident the majority of troops would continue to get vaccinated without the mandate.
Service members often live and work in close quarters like ships and barracks, making infectious diseases more worrisome. The lack of a vaccination mandate would most likely affect troop deployability and readiness, the officials said. Not only would illness make some troops nondeployable, they said, but some countries will not admit people who refuse to be vaccinated, so unvaccinated troops could not necessarily participate in exercises or be stationed overseas.
Pentagon deputy press secretary Sabrina Singh declined Wednesday to provide specifics about how revoking the mandate could affect troops and operations, including whether unvaccinated troops would be deemed deployable.
“We don’t comment on pending legislation,” she said, adding that she would not get into “hypotheticals.” Austin supports keeping the vaccination mandate, she said, and when she was pressed, she said repealing the vaccination mandate would affect readiness.
Singh said that 691 service members, Defense Department civilians and dependents have died from Covid.
The vast majority of active-duty service members are vaccinated — only about 2% have not gotten both doses of a vaccine — but ending the mandate would mean new recruits would not need to get vaccinated.
Some military officials are also concerned the case could provide a road map for disgruntled troops to protest in the future, the two senior officials said. If there is a politically charged issue, they would have proof that they can lobby their members of Congress and get a lawful order overturned, even if military leaders and the secretary of defense disagree.
Rep. Greg Murphy, R-N.C., a longtime opponent of the vaccination mandate, said, “While this repeal will bring relief to many in our U.S. Armed Forces, we must go further to re-enlist those who were discharged for not taking the vaccine and hold the Biden administration accountable for this damaging, politically targeted ploy at the expense of America’s heroes.”
Courtney Kube is a correspondent covering national security and the military for the NBC News Investigative Unit.
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