The change to the NDAA, then, won’t help the past or the future, unless we continue to act in the present. That’s why there’s still a judicial fight to be had. The battle does not end with the threat of separation, but only with stopping any continued punishment of these service members, complete restoration of all these men and women have lost, and the promise that this will never happen again.
Op-Ed: The NDAA Won’t Stop Biden’s Back-Door Military Vaccine Separations
Originally published in Center Square
This past week, many rejoiced that a National Defense Authorization Act (“NDAA”) that eliminates the COVID-19 military vaccine mandate was signed into law. That mandate resulted in the separation or threat of separation of thousands of service members who chose not to take the COVID-19 vaccine because of their sincerely-held religious beliefs.
But Army Master Sergeant Rob Galey was not rejoicing. Although the same week that the NDAA was signed we filed a lawsuit on his behalf, he received word from his unit that they were proceeding with a General Officer Memorandum of Reprimand (GOMOR) in his record which will trigger separation from service anyways, subverting the intent of Congress in ending the mandate. This action reveals a back door administrative mechanism the Biden Administration can use to separate religious service members going forward and the continued need to fight this overreach in court.
Master Sergeant Galey is an Army infantryman with over 16 years of military experience. He deployed eight times to combat zones in Iraq and Afghanistan. He joined the military because his Christian faith compels him to live a life of service. Then, like many when the Biden Administration mandated the COVID-19 vaccine, Master Sergeant Galey respectfully requested a religious accommodation so that he would not have to take a vaccine due to the vaccine’s testing and production process. The Biden Administration’s leadership denied his requests, and one superior – who didn’t even know him – questioned the sincerity of his beliefs.
Now, after the signing of the NDAA, the Master Sergeant and many other service members have been told the battle is over. The text of the bill states, “Not later than 30 days after the date of the enactment of this Act, the Secretary of Defense shall rescind the mandate that members of the Armed Forces be vaccinated against COVID-19…”
Here’s the problem: while rescinding the mandate may remove the immediate threat of separation from service for some, the damage that has been done already essentially ensures Master Sergeant Galey’s administrative separation. That’s because a GOMOR on ones’ record – a counseling entry usually reserved for severe criminal misconduct – will normally result in his separation under the Quality Management Program. This program routinely scrubs a soldier’s permanent record for derogatory entries, like a GOMOR, and automatically flags them for administrative separation. Absent judicial relief, Master Sergeant Galey and other faithful service members will continue to be separated from the service through back-door administrative means.
Thousands of service members who objected to taking the vaccine have already lost their jobs in the military without honorable discharges. According to Pentagon public affairs guidance, over 8,000 service members have been separated for declining the vaccine. These numbers would be far higher were it not for principled federal judges who certified class actions and enjoined separations in the Navy, Air Force, and Marine Corps. Some of these separations occurred within several years of retirement, resulting in the loss of tens of thousands of dollars in retirement income and medical benefits for their families. For all of these service members, the NDAA provides cold comfort for the trampling of their religious liberties, the loss of their jobs, and the non-honorable characterizations of service they received. There’s no provision in the NDAA to compensate them for what they’ve lost.
Moreover, those who have fought and avoided separation have faced adverse personnel actions that have crippled their career advancement. Master Sergeant Galey’s spotless record now contains negative counseling entries in his service record book, a bar on his participation in any training or schools, cancellation of his orders, and a lateral demotion from his role in leadership. Each of these actions individually would make his promotion more difficult – together with the GOMOR they essentially ensure he has a limited future in the military. The NDAA provides little assistance to the loss of promotion opportunities suffered by those who only sought to exercise their faith.
James Baehr is Special Counsel and Founder of the Pelican Institute for Public Policy’s Center for Justice, a public interest law firm that fights for freedom and opportunity in Louisiana and the Fifth Circuit.