COVID vaccination in the military could go from voluntary to mandatory, but Kentucky Congressman Thomas Massie introduced H.R. 3860 to stop it. A recent update to HQDA EXORD 225-21 ‘COVID-19 Steady State Operations’ allegedly states, “Commanders will… prepare for a directive to mandate COVID-19 vaccination for service members…pending full FDA licensure.”

EXORD is issued by the chairman of the Joint Chiefs of Staff under the authority and direction of the Secretary of Defense to implement a decision by him or the President. The Secretary of Defense is Lloyd J. Austin III, former commander of U.S. Central Command (CENTCOM) and the Joint Chiefs chairman is Army General Mark Milley, who has recently been in the news for his comments on Critical Race Theory (CRT) and is the highest-ranking military officer. Milley serves as military advisor to the President, Secretary of Defense, and National Security Council.

Army Times claims to have obtained a portion of the HQDA EXORD 225-21 document but does not provide it and does not name a source. Major Jackie Wren, labeled an Army spokesperson, is quoted as saying, “As a matter of policy we do not comment on leaked documents. The vaccine continues to be voluntary… If we are directed by DoD to change our posture, we are prepared to do so.

Pentagon Press Secretary John Kirby responded to a mandatory vaccine question at a press briefing Tuesday:

Right now it’s being used under Emergency Use Authorization, which makes it a voluntary vaccine. Should the FDA [Food and Drug Administration] approve it, then I am certain that Pentagon leadership will take a look at what our options are going forward, including the potential option of making mandatory… I think there’s been — there’s been some preliminary discussions at senior levels within the department to think about what the next logical steps would be, if and when FDA approval comes in… It is still under emergency use authorization and it is still a voluntary vaccine.

He noted that almost 69 percent of DoD personnel have received at least one dose and says that’s “not bad,” but “we’ve got work to do, clearly—we’d like to see that percentage continue to climb.

We want to keep encouraging our people and their families to get the vaccines. They’re safe, they’re effective, and it’s really the best incentive to protect you, your families, and your teammates…

Military Times had reported last week that a plan for mandatory vaccines as a condition of Veterans Affairs (VA) employment was being considered—and that Secretary of Veteran’s Affairs Denis McDonough “emphasized” that “increasing the number of vaccinated employees” is “critical for plans to fully resume operations at VA hospitals and offices“—even though COVID deaths among VA patients had slowed to zero or near it by May.

Congressman Massie wrote Saturday that he’d been contacted by voluntary servicemen who said they’d quit if a COVID jab becomes mandatory, so he introduced H.R. 3860, “To prohibit any requirement that a member of the Armed Forces receive a vaccination against COVID-19.

At a June 27 ‘Town Hall’ event, Vice Admiral John Nowell spoke about the Navy’s way forward related to the Covid-19 vaccine. He said the individual and his crew become safer when taking the vaccine and that he and his entire family have taken the jab.

I believe that when it’s formally approved [by the FDA], which we expect pretty soon, we probably will go to that,” he said, “…it’s Emergency Use Authorization, so unlike the flu vaccine, which we do make mandatory in the Navy [along with other vaccinations], that’s not something that we can do.

Nowell said 10% of cases coming in are the Delta variant, though the testing methodology is not discussed. He said that there is “real concern” about the variant because “it’s more resistive[sic].” He said prevention efforts should be focused on “having more folks that are protected” and “get[ting] more folks vaccinated and then immunized.

…I believe that the body of evidence is out there to support it being safe… now, regardless of whether they take the vaccine or not, if you’re in the military, then we’re responsible for your health care… and then once you get out and through the V.A. [Veteran’s Administration]… the V.A. is still responsible for that. But I would ask folks to thoughtfully reconsider if they have declined the vaccine. But I do understand that it’s their decision...”

Unexplained illnesses suspected to be linked to new drugs used on servicemembers during the Gulf War resulted in a new federal law 10 U.S.C. § 1107 that “prohibits the administration of investigational new drugs, or drugs unapproved for their intended use, to service members without their informed consent.” In 1999, President Clinton’s Executive Order (EO) 13139 required that the DoD obtain informed consent individually. Existing law still allows the consent requirement to be waived by the President, and Clinton’s EO states that waivers of informed consent be granted only “when absolutely necessary.” FDA-approved drugs, including vaccines, have no such restriction.

In 1998, a mass inoculation program of service members and civilian employees by the DoD began. The vaccine contained Anthrax Vaccine Adsorbed (AVA), which the National Institutes of Health (NIH) had licensed for use against anthrax in 1970. The drug was administered without informed consent and without a Presidential waiver. A case won by anonymous service members and civilian employees of the DoD against recently deceased Donald Rumsfeld and other administrators said the drug was experimental and that mandatory administration was therefore illegal.

Doe vs. Rumsfeld

Doe v. Rumsfeld was tried in the D.C. District Court in 2003. Plaintiffs were National Guardsmen and civilian contract employees of the Department of Defense (DoD). They had already taken or were told to take a vaccination for anthrax without consent, so they sued the Defendants; the Secretary of Defense Donald Rumsfeld, the Secretary of Health and Human Services Tommy Thompson, and the Commissioner of the Food and Drug Administration Mark McClellan.

The military members’ argument said the vaccine was an experimental drug unlicensed to be used as a vaccine for the purpose claimed. They showed that the product insert had an adverse reaction rate that had been recently revised from 0.2% to 5-35% while also upgrading pregnancy risk. They requested that the court ‘enjoin’ or stop the DoD from administering the drug, which they saw as dangerous and experimental, without informed consent. The defense argued that such a request was an attempt to undermine a key component of military readiness and defense against battlefield use of biological weapons.

An application to the FDA by AVA’s manufacturer was pending at the time of the court’s ruling. That unfinalized plan for licensing was based on aerosol projections of B. anthracis spores that were said to be a potentiality in biological warfare environments. There was, however, no indication on the label nor the product insert of whether the method of anthrax exposure it was intended to protect against was cutaneous or airborne. Because it was unspecified, communications between the Secretary of Defense’s office and the FDA discussed and landed on an interpretation that the drug could be used on the military without consent as a measure against both.

The court disagreed and ruled that the DoD could no longer ‘inoculate’ without informed consent:

…the involuntary anthrax vaccination program, as applied to all persons, is rendered illegal absent informed consent or a Presidential waiver…

The opinion came from Judge Emmett Sullivan, who also presided over the criminal case against General Michael Flynn.

The U.S. Department of Health and Human Services (HHS) recommended immunization schedule lists seventeen drugs or drug combinations as recommended vaccines for adults. It maintains a page specific to vaccines military members.