Navy says destroyer can't sail because commander won't get COVID vaccine — and his superiors want him gone

The United States Navy is refusing to deploy a guided-missile destroyer because the ship’s commanding officer is unvaccinated for COVID-19 and allegedly has disobeyed orders related to COVID.

What is the background?

The U.S. military announced a COVID-19 vaccine mandate last year that went into effect in October 2021. The policy does allow for religious, medical, and administrative exemptions.

The ship's commander initially joined a lawsuit last October requesting relief from the mandate religious grounds. The commander then dropped from that lawsuit and filed another lawsuit, along with a Marine lieutenant colonel, in U.S. district court in January alleging their First Amendment rights were violated when they were subject to reassignment for refusing to get the COVID vaccine.

Neither the ship's commander nor the ship he commands has been publicly identified.

What is happening now?

In February, U.S. District Court Judge Steven Merryday issued a preliminary injunction barring the Navy from requiring either plaintiff to receive the COVID-19 vaccine, Stars and Stripes reported. The order also prohibited military commanders from taking "any punitive or retaliatory measure" against the military officers.

The military responded on Feb. 28 by requesting an emergency stay on the injunction and condemned the court's intervention.

"The order is an extraordinary intrusion upon the inner workings of the military that presents a direct and imminent threat to national security during a global military crisis, and it indefinitely sidelines a Navy warship," the military claimed.

The Navy also claimed the ship's commander has endangered his crew and lost their confidence. Capt. Frank Brandon, commodore of Destroyer Squadron 26, claimed the ship commander disregard medical rules after experiencing COVID-19 symptoms last November. Brandon reportedly ordered the commander to get tested for COVID, which resulted in a positive test.

Thus, the Pentagon claimed Merryday's order "effectively places a multi-billion dollar guided missile destroyer out of commission" because it is "forcing the Navy to keep in place a commander of a destroyer who has lost the trust of his superior officers and the Navy at large."

"If it becomes necessary to deploy an East Coast-based surface ship in response to global events in Ukraine (or elsewhere), the Navy will not deploy the Commander’s vessel," the Pentagon said.

How did the judge respond?

Unfortunately for the military, Merryday denied the Pentagon's appeal on March 3.

According to the Navy Times, Merryday accused attorneys for the military of trying "to evoke the frightening prospect of a dire national emergency resulting from allegedly reckless and unlawful overreaching by the district judge."

Merryday also accused the military of acting "as if [Religious Freedom Restoration Act] does not exist or has no application to the military or is a matter subject to the command discretion of the military."

The question presented in this action and presented by the explicit language of RFRA is whether vaccinating Navy Commander or Lieutenant Colonel 2 over their religious objection, that is, athwart the right of each to the free exercise of religion, is “the least restrictive means of furthering that compelling governmental interest.” RFRA establishes that explicit test and places the burden of proof on the government.

Proving the obvious, that vaccination is best for “the force” and necessary for “the force,” fails to satisfy the “to the person” test required by RFRA. The military designs to avoid the “to the person” test, but the statute is unflinching.

Interestingly, attorney Mat Staver of Liberty Counsel, the organization representing the plaintiffs, said the military deployed the Navy commander for training exercises just last month.

"When [the Pentagon's response] was filed in court saying the ship is not deployable because they lost confidence in the Commander, the Commander was on board the ship out to sea for two weeks of testing and training for military readiness,” Staver told the Navy Times. “He returned to port last Friday, March 4, after the drills were completed."

Considering the commander's ship was actually at-sea for more than 75% of the days before the COVID vaccine became available, attorneys for the plaintiffs described the Pentagon's actions as "petty retaliation and contempt."