If I was separated for refusing the COVID vaccine, can I be reinstated into the military?

The military separated thousands of members for refusing the COVID-19 vaccine.  Congress ordered the Secretary of Defense to rescind the vaccine mandate as part of the FY 2023 National Defense Authorization Act (NDAA).  As a result, the services can no longer, as a matter of law, separate any member who has refused to be vaccinated against COVID-19.  However, the NDAA was silent on whether the thousands of military members already separated for refusing the vaccine were entitled to any relief – reinstatement, upgraded characterization of service (Honorable), or change in reenlistment code.

As of the date of this Post (January 14, 2023), the services have provided no guidance on whether a service member separated for refusing the then-lawful order to receive the vaccine is entitled to reinstatement with or without back-pay, upgraded characterization of service (many members received General discharges), and changes to reenlistment codes (most received RE-4 codes, providing that the member was not eligible for reenlistment.

What should I do if I was separated for refusing the vaccine?

I wouldn’t do anything just yet.  I anticipate that the services will put guidance out similar to what happened after “Don’t Ask, Don’t Tell” was rescinded in ended in 2011.  However, I do not know when this will happen.  The Department of Defense was against rescinding the mandate.  That may impact the motivation to assist members separated for refusing the vaccine.  Congress is currently discussing whether to pass a law requiring reinstatement with back-pay.

If you are not motivated to wait, there are two avenues to pursue relief.  The first is applying to the service’s Discharge Review Board.  The Discharge Review Board can change the narrative reason for discharge, the characterization of the discharge, and the reenlistment code.  The Discharge Review cannot reinstate the member and/or give back-pay.  The second is applying to the service’s Board of Corrections for Military/Naval Records.  The Board of Corrections can change the narrative reason for discharge, the characterization of the discharge, the reenlistment code, and direct reinstatement with or without back-pay.  Importantly, if you apply to the Board of Corrections, you cannot later apply to the Discharge Review Board for the same relief as the Board of Corrections is seen as a superior authority over the Discharge Review Board.  to be clear, there is no guaranteed relief at this time, which is why I have advised individuals to wait at least a couple months to see if there is a guidance released regarding the matter.

Attorney Patrick Korody is a former active duty Navy JAG.  He has 18 years of military service, including his reserve service.  He practices military law worldwide and criminal defense in the Jacksonville, FL area.  He has successfully represented clients before the Discharge Review Board and Board of Corrections, including having clients reinstated into the service.

Korody Law, P.A. 118 W. Adams Street, Suite 500, Jacksonville, FL 32202 - (904) 383-7261

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