Reinstating military members over COVID vax mandate is 'good,' accountability still needed: lawyers

President Trump's signing an executive order to reinstate military members after they were forced out over the Pentagon’s COVID-19 vaccine mandate is a “good first step,” according to lawyers who fought the mandate in court, but say more work is to be done to ensure accountability and assist the harmed service members.

The Defense Department’s COVID vaccine mandate was “illegal,” according to lawyers representing military members who refused to take the shot, many of which were denied religious exemptions. Thus, Trump’s executive order is viewed as a “good first step” to helping those service members, but other steps must be taken to help ensure such a mandate is not implemented again, one former military lawyer said.

"Will rehire every patriot"

Late Monday night, Trump signed an executive order reinstating military members who were discharged for refusing to follow the COVID vaccine mandate implemented by the Biden administration. The mandate began in August 2021 and was rescinded in January 2023 after Congress passed the National Defense Authorization Act (NDAA) that required the Pentagon to end it.

Last year, Trump said regarding the mandate, “there should have never been a [COVID vaccine] mandate. That should have never happened.” He also promised, he “will rehire every patriot who was fired from the military with…backpay. They will get their backpay.”

Trump’s executive order explains the issues he had with the DOD mandate.

“The vaccine mandate was an unfair, overbroad, and completely unnecessary burden on our service members,” the executive order reads. “Further, the military unjustly discharged those who refused the vaccine, regardless of the years of service given to our Nation, after failing to grant many of them an exemption that they should have received. Federal Government redress of any wrongful dismissals is overdue.”

According to the executive order, both the Defense and Homeland Security secretaries may “make reinstatement available to all members of the military (active and reserve) who were discharged solely for refusal to receive the COVID-19 vaccine and who request to be reinstated; enable those service members reinstated under this section to revert to their former rank and receive full back pay, benefits, bonus payments, or compensation; and allow any service members who provide a written and sworn attestation that they voluntarily left the service or allowed their service to lapse according to appropriate procedures, rather than be vaccinated under the vaccine mandate, to return to service with no impact on their service status, rank, or pay.”

The secretaries are also required to report back “on their progress in implementing this order” within 60 days.

Chiding the Biden Administration

According to the executive order fact sheet, “In spite of the scientific evidence, the Biden Administration discharged healthy service members—many of whom had natural immunity and dedicated their entire lives to serving our country—for refusing the COVID vaccine. Government redress of these wrongful dismissals is overdue.”

“Such dismissals likely had a chilling effect on recruitment, with the Department of Defense missing its collective recruiting targets by around 41,000 recruits in FY2023,” the fact sheet reads. “After the vaccine mandate was repealed in 2023, only 43 of the more than the 8,000 troops dismissed elected to return to service under the Biden Administration and Secretary Austin.”

R. Davis Younts, a lawyer who represents multiple former and current servicemembers negatively impacted by the COVID vaccine mandate, told Just the News on Tuesday that the “executive order is a really, really good first step, and consistent with what I had hoped to see.”

He explained that the order expresses the president’s intent for the DOD to follow, and thus doesn’t cover all the details. “I’m really encouraged about the talks about backpay and reinstatement for those who come back in,” and the section that covers those who were “not discharged, but forced to leave because of the mandate,” such as those who retired early or chose to not extend their contract, Younts said.

While about 8,600 service members were “kicked out because of the mandate,” the number of those who were forced to leave is “closer to 100,000," he added.

Younts said that he has a client who was being kicked out of the Army for not getting the COVID shot, but despite the passage of the NDAA, he was still separated "because he was given a written reprimand for not getting the shot.”

He explained that his clients who were kicked out of the military before the NDAA was enacted can be reinstated, as well as those of his clients who were forced out.

However, Younts added, “I have clients who are still serving but who have been passed over for promotion,” or not allowed to fly, “so their career has been essentially destroyed, even though they're still in” the military because they have “lost the opportunity for promotions and leadership.”

While Younts said that he is “super excited, and extremely grateful” for the executive order, since it "doesn't directly address those still in the military who have been passed over for promotions,” there is still “a lot of work” to be done.

"DOD decided to ignore the law"

The NDAA requiring the DOD to rescind the COVID vaccine mandate meant that the legality of the mandate was not ultimately decided in the courts, with cases either being settled or dismissed as moot because of the repeal, he explained. As a result, a similar mandate could occur again during another administration.

“The problem isn’t that there isn’t a law that covers this, it’s that the DOD decided to ignore the law,” and was “forced by bad policies to ignore the law” which “took a long time for the courts to address,” Younts said.

Thus, there isn’t necessarily a legislative fix for this issue, but there needs to be “accountability for those pushing this,” and a “need to recognize that even when the law is clear, if we have an administration that cares more about the political outcome than the law, even in our country, this is the kind of thing that absolutely can happen,” he added.

Younts, who is a retired lieutenant colonel of the Air Force Reserve and former Judge Advocate General's Corps (JAG) lawyer, also said that he believes about 10-20% of service members who were forced out will return to the military.

“This whole situation definitely created a significant breach of trust in senior military leadership, and that's going to take a while to repair,” Younts said. However, he also believes that the executive order “will have a significant positive impact on recruitment.”

Liberty Counsel is another law firm that fought the DOD’s COVID vaccine mandate.

In response to Trump’s executive order, Liberty Counsel Founder and Chairman Mat Staver said in a statement on Tuesday, “President Trump’s order to restore the many unjustly discharged people from our military is a good first step to restore trust.

“The Pentagon’s unlawful COVID shot mandate violated constitutional rights, inflicted irreparable harm on many service members, and eroded military readiness at a time when America needs a strong military. Our Armed Forces have a sacred trust to defend our nation, and our service members need to have their own trust that their leaders will never force them to choose between their convictions and service to their country.”

The DOD did not respond to requests for comment by publishing time.