Thu, Sep 22, 2022 10:08 AM
By Bethany Blankley, The Center Square
A Department of Defense Office of Inspector General report has found that officials in the U.S. military who issued widespread denials of religious exemption requests by service members who refused to take the COVID-19 shots violated federal law.
Acting Inspector General Sean O'Donnell sent a memo to Secretary of Defense Lloyd Austin while the department continued to defend its position in court and as branches of the military sought to dishonorably discharge, punish and even evict from their housing service members who were in noncompliance with the vaccine mandate Austin issued last August.
O’Donnell’s June 2 memo also surfaced after federal judges have increasingly issued blistering rebukes of military leaders when granting class action status for plaintiffs in lawsuits filed in several states.
The memo was issued after the OID performed an audit of the U.S. military branches’ processing of COVID-19 exemption requests for active-duty service members to determine if they were in compliance with federal law and U.S. military regulations. The OIG found that they weren’t.
O’Donnell told Austin he was writing to inform him of “potential noncompliance with standards for reviewing and documenting the denial of religious accommodation requests of Service members identified through complaints submitted to my office.”
He said the DOD’s hotline received dozens of complaints from service members and his office found “a trend of generalized assessments rather than the individualized assessment that is required by Federal law and DoD and Military Service policies.”
He points out that blanket denial memorandums given to service members from the Air Force and the Navy didn’t “reflect an individualized analysis, demonstrating that the Senior Military Official considered the full range of facts and circumstances relevant to the particular religious accommodation request.” Instead, they included “similar, if not identical, wording,” following an example like one given in the Air Force: “I disapprove your request for exemption from vaccinations under the provisions of AFI 48-110, paragraph 2-6.b.3.”
The Religious Freedom Restoration Act of 1993 prohibits the government from substantially burdening a person’s exercise of religion unless it “demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest,” O’Donnell argues.
U.S. Military code requires officials to review each request individually, “considering the full range of facts and circumstances relevant to the specific request,” O’Donnell wrote. “The means that is least restrictive to the requestor’s religious practice and that does not impede a compelling governmental interest will be determinative.”
He also said, “the volume and rate at which decisions were made to deny requests is concerning.”
An average of 50 denials were issued a day, the OIG’s office found, in a more than 90-day period.
“Assuming a 10-hour workday with no breaks or attention to other matters, the average review period was about 12 minutes” for each appeal submitted by a service member, he notes, which he says is “insufficient.”
The OIG’s findings were consistent with those of a federal judge in a lawsuit filed by the Orlando-based religious freedom organization, Liberty Counsel, in Navy SEAL 1 v. Biden (now Austin).
In February, Judge Steven Merryday ordered each branch of the military to report the status of religious exemptions filed every 14 days beginning January 7, 2022. By February 4, of the 24,818 religious exemption requests received, only four were granted.
Liberty Counsel Founder and Chairman Mat Staver said, "The Biden administration and the Department of Defense are violating federal law by denying the religious free exercise rights of service members from the COVID shot mandate. Our service members swear an oath to defend the U.S. Constitution. Their oath to defend the Constitution and their willingness to give their lives for our freedom must not be illusory. The abuse must end.”
U.S. District Court for the Middle District of Georgia Judge Tilman Self, III, also said earlier this year that the Air Force’s claim that it was providing a religious accommodation process, “proved to be nothing more than a quixotic quest for Plaintiff because it was ‘by all accounts, . . . theater.’”
Self calculated the percentage of religious exemption requests the Air Force granted was 0.24%.
In another case, the Sixth Circuit Court of Appeals handed the Biden administration another blow when it upheld a ruling by a federal district court judge who granted class certification for all members of the Air Force.
“The Department of Defense’s Covid vaccine mandate is deleterious to readiness and the military’s ability to fight and win wars,” they argue. “The vaccine provides negligible benefit to the young, fit members of our Armed Forces, and the mandate’s imposition is clearly affecting the Department’s ability to sustain combat formations and recruit future talent.”
Austin has not issued a public response to the memo or replied to the requests of the members of Congress. He and his administration maintain the mandate is imperative for mission readiness and have steadfastly defended their position in court. His administration has also argued that federal district judges don’t have jurisdiction to rule on military cases, an argument they’ve consistently lost.