Appendix in Support of Response in Opposition to Partial Stay — Austin v. U.S. Navy SEALs 1-26 (No. 21A477)

Summary

This appendix supports the respondents' opposition to a partial stay in No. 21A477 in the Supreme Court, Lloyd J. Austin, III, Secretary of Defense, et al. v. U.S. Navy SEALs 1-26. It collects declarations by Navy Diver 2, Navy SEAL 16, Navy SEAL 18, U.S. Navy Special Warfare Combatant Craft Crewman 4, Commander Robert A. Green, Jr., Lieutenant Commander Erik V. De Sousa, Lieutenant Daniel Franklin and Texas lawyer Brian J. Ferguson, with exhibits from Document 134 (Case 4:21-cv-01236-O, filed 02/28/22). Navy Diver 2 says that after a Page 18 counseling for not being vaccinated, the diver stayed four months in Mississippi picking lint out of Velcro and passing out gear, then reported for duty in Hawaii on March 10, 2022. It ends with a Navy letter disapproving a request for a waiver of immunization requirements as "the least restrictive means available" for military readiness.

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Record facts

Full text

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No. 21A477

Sn the Supreme Court of the Anited States

LLOYD J. AUSTIN, III, IN HIS OFFICIAL CAPACITY
AS SECRETARY OF DEFENSE, ET AL.,

Applicants,
v.
U.S. NAvy SEALS 1-26, ET AL.,
Respondents.

APPENDIX IN SUPPORT OF RESPONSE IN
OPPOSITION TO PARTIAL STAY

HEATHER GEBELIN HACKER
Counsel of Record

ANDREW B. STEPHENS

Hacker Stephens LLP

108 Wild Basin Rd. South

KELLY J. SHACKLEFORD
JEFFREY C. MATEER
HIRAM S. SASSER, ITI
DAVID J. HACKER
MICHAEL D. BERRY

First Liberty Institute Suite 250

2001 W. Plano Pkwy. Austin, Texas 78746

Suite 1600 (512) 399-3022

Plano, Texas 75075 heather@hackerstephens.com

(972) 941-4444

Counsel for Respondents
la

No. 21A477

Sn the Supreme Court of the Anited States

LLOYD J. AUSTIN, III, IN HIS OFFICIAL CAPACITY
AS SECRETARY OF DEFENSE, ET AL.,

Applicants,
v.
U.S. NAvy SEALS 1-26, ET AL.,
Respondents.

DECLARATION OF NAVY DIVER 2

KELLY J. SHACKLEFORD HEATHER GEBELIN HACKER
JEFFREY C. MATEER Counsel of Record

Hirao S. SASSER, III ANDREW B. STEPHENS
Davip J. HACKER Hacker Stephens LLP
MICHAEL D. BERRY 108 Wild Basin Rd. South

First Liberty Institute Suite 250

2001 W. Plano Pkwy. Austin, Texas 78746

Suite 1600 (512) 399-3022

Plano, Texas 75075 heather @hackerstephens.com

(972) 941-4444

Counsel for Respondents
2a

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury as follows:

1. I am over the age of eighteen and am competent to make this declaration.

2. I underwent extensive training to become a Navy Diver. I completed dive
school in early August 2021, graduating at the top of my class. Because I did so well, I was
given my choice of permanent duty assignments and I received my orders to report to my
ultimate permanent duty station in Hawaii after I completed additional training at another
school in Mississippi for four weeks.

3. After completing that school on September 24, 2021, I was waiting in line to
have my orders to PCS (permanent change of station) stamped and I was given a Page 18
counseling for not being vaccinated. I told my command that I intended to file a Religious
Accommodation request (and in fact did), but my command said that didn’t matter, I would
not be permitted to PCS, and that I would be stuck where I am until my final fate with the
Navy is determined.

4, I remained in Mississippi (where I was only supposed to be for four weeks)
for four months. As a result, I could not do any Diver duties, as the Mississippi base is a
landlocked location and there are no other Divers there. I had been working in supply and
my assigned responsibilities were to pick lint out of Velcro and pass out gear. I was also
assigned to take temperatures of individuals entering the building.

5. A few weeks after our lawyers filed a motion for order to show cause, I was
informed in late February that the Navy was permitting me to execute my PCS orders to

Hawaii.
3a

6. I arrived in Hawaii on March 9, 2022 and reported for my first day of duty on
March 10, 2022. The first thing I did upon arrival on base was take a COVID-19 test.

7. I am informed that the Navy represented that I have been given submarine
duty, but that is inaccurate. My original PCS orders (which have not changed) attach me to
Seal Delivery Vehicle (SDV) 1 as my unit, but not to a submarine. My understanding of the
normal course at this duty station is that Divers must complete several weeks of systems
work before being attached to a submarine. Systems work is a non-deploying position that
involves maintenance of equipment and other responsibilities. While engaged in systems
work, I will still be diving and working on my qualifications, but I will not be deploying and
I will not be on a submarine.

8. Before arriving in Hawaii, I spoke with my master diver who informed me
that I will not be attached to a submarine while I am unvaccinated and that I will continue

to do systems work.

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is

true and correct. Executed on March 11, 2022.
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Case 4:21-cv-01236-O Document 118 Filed 02/13/22 Page5of64 PagelD 3454

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

U.S. NAVY SEALs 1-3, on behalf of
themselves and all others similarly situated;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1, on behalf of
himself and all others similarly situated; U.S.
NAVY SEALS 4-26; U.S. NAVY SPECIAL
WARFARE COMBATANT CRAFT
CREWMEN 1-5; and U.S. NAVY DIVERS
1-3,

Plaintiffs,
V.

LLOYD J. AUSTIN, II, in his official
capacity as United States Secretary of
Defense; UNITED STATES
DEPARTMENT OF DEFENSE; CARLOS
DEL TORO, in his official capacity as
United States Secretary of the Navy,

Defendants.

Case No. 4:21-cv-01236-O

DECLARATION OF NAVY SEAL 16

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury as follows:

1. I am over the age of eighteen and am competent to make this declaration.

2. I reviewed the declarations of CAPT Christopher Brown, LCDR Ronald Harrison,

and CDR Andrew Sparks in support of the Defendants’ opposition to the motion for order to show

Cause.

3. I have 20 years of service in the U.S. Navy, and 19 years as a U.S. Navy SEAL. I

enlisted in the Navy in 2002 and became a SEAL in 2003. I am a Chief Warrant Officer/W-3.

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4. I have deployed six times in support of combat operations and I have received
several awards for my service, including Joint Commendation with Valor, six Navy
Commendation Medals and two Navy Achievement Medals.

5. I have served as the Training Officer for two operational SEAL commands. I was
recently promoted to Operations Officer for my current command.

6. LCDR Harrison states that the decision to pull SEAL 13 from Advanced Special
Operations Training Course (ASOT-C) was due to Army policy. As the prior Training Officer for
Special Reconnaissance Team ONE (SRT-1), I directly managed which SEALs attended ASOT-
C. I can attest that all SEALs are rigorously screened for their ability to qualify in ASOT-C and
then function as a Special Reconnaissance Platoon Leading Petty Officer. Naval Special Warfare
gets only a handful of billets per year for this school and they are exclusively divided between the
Special Reconnaissance Teams on the west and east coasts (SRT-1 and SRT-2, respectively).
Therefore, much thought and deliberation has been given prior to each candidate attending ASOT-
C and it is critical for each SEAL candidate to graduate. ASOT-C is a long, demanding, and
challenging course and is only available to veteran special operators. Any operator removed prior
to graduation is most often because of poor performance or occasionally a self-deselection (drop-
out-request [DOR]), aka quitting. Due to the critical importance of the ASOT-C qualification,
SRT-1 and SRT2 both do their utmost to make sure that their personnel are given every opportunity
to graduate to include joining video teleconferences with the ASOT-C school house if a student is
in danger of a performance drop. During my four years serving at SRT-1, I cannot recall a single
student ever returning from ASOT-C without active communication and a mutual understanding

between SRT-1 and the ASOT-C instructor staff.

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7. CDR Sparks describes certain tasks as regular functions, but they are all typically
assigned as punitive measures for discipline. The military uses a term for these types of tasks:
“Extra Military Instruction.” EMI is an adverse consequence of an infraction. It is not necessarily
inaccurate that EMI involves normal military duties for that reason, but EMI is not routine. The
military does have unfavorable jobs and duties and must assign someone to do those duties. In the
SEAL teams, standing watch at the command quarterdeck and being assigned with escort duties
for non-command personnel are most common unfavorable jobs often assigned as EMI.
Servicemembers doing these duties knows there’s a reason they were assigned to them, as they are
usually assigned as a corrective action. Otherwise they are split evenly amongst members who do
them infrequently. For SEAL personnel, these duties are always understood as punitive measures
unless they are part of a command-wide watch-standing schedule.

8. CAPT Brown states that Plaintiffs serving in training commands are a danger to
other SEALs training for deployment. However, I know that many of the Plaintiffs, including me,
have continued to train other SEALs throughout the pandemic and are still training SEALs even
after the mandate. SEALs in training detachments work closely with the SEAL Platoons during
Unit Level Training. This is not surprising since SEALs in training detachments often have
qualifications that take years to obtain and are critical for preparing SEAL Teams for deployment.

9. CAPT Brown states that to his knowledge, “the Navy has not taken any action that
would typically be considered an adverse action (e.g., imposition of discipline, processing for
administrative separation) or that constitutes adverse administrative action under governing Navy
regulations against any Plaintiff”, But SEALs removed from milestone positions (SEAL Platoon
Lead Petty Officer and Lead Chief Petty Officer) are only removed for punitive reasons like DUIs,

poor performance, or other disciplinary reasons. At times, there are family issues that interfere

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with a SEAL filling a milestone position, but those are rare and clearly understood. Removing a
SEAL from his milestone position due to his vaccination status or Religious Accommodation
request, like some Plaintiffs have been, is clearly punitive.

10. In my 20 years of service, it is extremely rare for someone to deploy without at
least 30 days’ notice. In my opinion, CAPT Brown makes it sound like we are all on “beeper
status,” which is only for a very select few people (i.e. DEVGRU) whose alert status is known,
well-planned for, and short-lived. For non-select units, the only SEALs deployed on short notice
are usually officers and it is generally to fill a staff function in a headquarters somewhere (not
doing missions). The reality is that SEAL Teams train for extended periods of time to prepare for
specific missions and must obtain specific qualifications to be deployable for that mission.

11. The CAPT cites SWCC 4’s lesser experience (compared to the CAPT) as
detrimental to his understanding of the impacts these policies are having. But as a Non-
Commissioned Officer (NCO), SWCC 4 and the other Plaintiffs are directly responsible for the
day-to-day mission accomplishment of NSW and have firsthand knowledge of the facts on the
ground. As a Chief Warrant Officer, I have served in both the enlisted and officer ranks, and I have
been on both sides of policy decisions. In my experience, feedback from the NCOs responsible for
execution and mission accomplishment is critical for mission success.

12. The CAPT points to the close quarters environment on submarines as an example
and asserts that “transmitting a respiratory disease in these conditions can have immediate mission
impact to NSW and the Navy overall.” In 20 years of service, I have never set foot in a submarine.
Only a very limited number of SEALs in a select unit (the SEAL Delivery Vehicle Teams) are

ever on submarines. Also, there are limited number of personnel diving, and it is extremely rare to

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share a breathing device (except in training). During a mission, it would happen only in an
emergency and most SEALs have never done an underwater operation.

13. It is also common knowledge that even before COVID-19, during the first month
on a ship or submarine, a large number of sailors become ill with both respiratory and digestive
illnesses. It is expected and is dealt with accordingly. Further, as the CAPT acknowledges, “we
execute ROM periods when NSW assets embarked on ships, transit national boundaries, operate
with partner forces, or have close contact with infected personnel.” Therefore, all personnel are
tested before being deployed or sequestered aboard ships or submarines, regardless of vaccination
status. The presence or absence of unvaccinated personnel does not change that.

14. Defendants have also suggested that unvaccinated personnel present a danger to
mission completion because somehow those individuals are more likely to contract COVID-19 or
develop a severe case, and some missions make medical evacuation difficult. The vast majority of
SEALs, if any, are not at high risk of contracting a serious case of COVID-19 because they are
young and have a high level of physical fitness. But in the unlikely chance a member were to test
positive and he needed to get to a higher level of care, there is nowhere we deploy where this is
not possible. The risk of normal injuries from our duties are greater than the risk of COVID-19. It
is common for SEALs or support personnel to be injured or become sick before, after, or during
deployment. Even training activities are far more dangerous than COVID-19. Recently, a
Commanding Officer of an East Coast SEAL Team died after fast roping during a training exercise.

15. Under current conditions, it is also very unrealistic to assume that vaccinated
servicemembers will not be exposed to COVID-19 (or unvaccinated people other than Plaintiffs)
in their daily lives, or that vaccinated servicemembers will not contract COVID-19, with or without

the presence of the Plaintiffs. Recently, my detachment had 75 people travel out-of-state for a

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three-month training exercise. Almost immediately after arrival, one week of training was lost due
to over 15 people becoming infected or close contact with COVID-19, despite the fact that

everyone was fully vaccinated and most were boosted.

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and

correct. Executed on February 13, 2022.

/s/Navy SEAL 16
NAVY SEAL 16

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

U.S. NAVY SEALs 1-3, on behalf of .
themselves and all others similarly situated;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1, on behalf of
himself and all others similarly situated; U.S.
NAVY SEALS 4-26; U.S. NAVY SPECIAL
WARFARE COMBATANT CRAFT
CREWMEN 1-5; and U.S. NAVY DIVERS
1-3,

Plaintiffs, Case No. 4:21-cv-01236-O
Vv.

LLOYD J. AUSTIN, Hf, in his official
capacity as United States Secretary of
Defense; UNITED STATES
DEPARTMENT OF DEFENSE; CARLOS
DEL TORO, in his official capacity as
United States Secretary of the Navy,

Defendants.

DECLARATION OF NAVY SEAL 18

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury as follows:

1. I am over the age of eighteen and am competent to make this declaration.

2. I reviewed the declaration of Captain Christopher Brown in support of the
Defendants’ opposition to the motion for order to show cause.

3. | Tama Chief Warrant Officer-3 with over 25 years of service in the U.S. Navy, and
24 years in Naval Special Warfare (NSW) as a U.S. Navy SEAL. I served 18 years as an enlisted
SEAL, rising to the rank of Senior Chief Petty Officer (E-8) before being commissioned as an

officer in 2015.

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4, I have served in many tactical and leadership positions in the SEAL Teams and
been responsible for leading troops in combat and training NSW personnel in all aspects of Special
Operations. I have served in operational, training, and leadership positions at SEAL Team ONE,
Naval Special Warfare Development Group, and currently at Naval Special Warfare Group EIGHT
Training Detachment. I have deployed eleven times in support of combat operations, and I have
worked closely with, trained, and been in combat with partner forces of host nations. I received
several awards for my service, including the Bronze Star with Valor (three times), Defense
Meritorious Service Medal, Joint Service Commendation Medal with Valor, Navy Commendation
Medal (twice), and the Army Commendation Medal.

5. Captain Brown states that to his knowledge, “the Navy has not taken any action
that would typically be considered an adverse action (e.g., imposition of discipline, processing for
administrative separation) or that constitutes adverse administrative action under governing Navy
regulations against any Plaintiff.” But Plaintiffs removed from billets experienced adverse, career
degrading action. Removal from certain billets prevents those Plaintiffs from achieving required
milestones for promotion consideration. Also, Plaintiffs that were removed from positions, even
while still technically in the same billet, experienced adverse, career degrading action. Frequently,
in other matters, removal from a position is the first and sometimes only disciplinary action
employed.

6. While certain units within NSW may be required to be on short notice recall, none
of the Plaintiffs belong to such a unit. Outside of unusual situations, there are relatively few
examples of personnel needing to be surged forward on short notice, even in times of war. It is
definitely not the norm. NSW units plan deployment cycles years in advance and structure the

tactical leadership and personnel rotations accordingly. Task units have a long-term, relatively

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predictable training and deployment rotation schedule. Before deployment, SEAL Teams must
train to ensure they have the particular qualifications and small unit skills required for their
mission. The SEAL Teams and NSW units that the Plaintiffs are assigned to do not possess the
manning or logistical support, nor are they designed for instant recall at a moment’s notice to be
deployed forward. Occasionally, in extreme situations, a unit may need additional support due to
unforeseen circumstances. Often times, this is because a deployed unit is lacking a critical
qualification or skill set that they need to be considered operational. Ironically, these are some of
the same qualifications, leadership positions, and skill sets that were denied plaintiffs via
supposedly “non-adverse administrative actions.” Some qualifications take years to obtain. If
mission readiness were a top priority, the Navy would not allow a COVID-19 vaccination mandate,
especially given the low risk of serious illness or death to individuals in their 20s and 30s in peak
physical condition, to cause the loss of significant numbers of highly trained, specialized NSW
personnel. In any case, currently, the same COVID-19 mitigation procedures referenced by
Captain Brown would apply regardless of vaccination status, so it is no special burden to apply
them in accommodating unvaccinated personnel with sincere religious objections.

7. The Captain cites SWCC 4’s lesser experience (compared to the Captain) as
detrimental to his understanding of the impacts these policies are having, while overlooking the
fact that as a Non-Commissioned Officer (NCO), SWCC 4 and the other Plaintiffs are directly
responsible for the day-to-day mission accomplishment of NSW and have firsthand knowledge of
the negative effects of these policies. The Plaintiffs and their peer group are at the hands-on,
working end of all the Navy’s policies and taskings. They are responsible for physically executing
the mission and policy directives produced by NSW leadership. As such, they experience both the

intended and unintended consequences of these policies. NCOs have firsthand knowledge and

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understanding of the operational impacts these adverse actions have to the mission, morale, and
careers that is often lost on senior leaders as it filters down through the ranks and is actually put
into practice.

8. As a Chief Warrant Officer, I have served in both the enlisted and officer ranks,
and I have been on both the planning/directing and receiving/implementing side of policy
decisions. Throughout my 25-year career, I have witnessed numerous policies that have had to be
modified, rewritten, or even scrapped after implementation when they were deemed to be flawed
or unworkable based on the direct feedback from the NCOs responsible for execution and mission
accomplishment. The declarations of SWCC 4 and others is one of those situations, as his firsthand
experience is lost on senior leadership who are buffered by layers of command structure which
obscure their situational awareness to the facts on the ground.

9, The Captain points to the close quarters environment on submarines as an example
and asserts that “transmitting a respiratory disease in these conditions can have immediate mission
impact to NSW and the Navy overall.” While every SEAL is expected to be able to do every
mission, in practice, typically only a limited number of SEALs (the SEAL Delivery Vehicle
Teams) specialize and disembark on submarines. Second, it is well-known among sailors that
during the first month on a ship or submarine, a large number of sailors often become ill with both
respiratory and digestive illnesses. It is expected and is dealt with accordingly. Further, as the
Captain acknowledges, “we execute ROM periods when NSW assets embarked on ships, transit
national boundaries, operate with partner forces, or have close contact with infected personnel.”

Therefore, all personnel are tested before being deployed or sequestered aboard ships or

submarines, regardless of vaccination status. Unvaccinated personnel cannot spontaneously

develop COVID-19 any more than vaccinated personnel can. The Navy cannot possibly isolate

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anyone completely from unvaccinated people in their daily lives. COVID-19 outbreaks have
frequently occurred among the fully vaccinated. Recent outbreaks in NSW and aboard ships have
been almost entirely in the vaccinated cohort to my knowledge. And as the Captain acknowledges,
ROM periods are an ongoing COVID-19 mitigation measure, regardless of the vaccination
mandate.

10. Captain Brown uses Kuwait as an example of a partner nation that restricts
unvaccinated travel. However, Kuwait recently made a booster shot mandatory. See
https://kw.usembassy.gov/covid-19-information/. The booster is not mandatory for U.S. Military,
so a significant number of servicemembers are non-compliant with Kuwait’s restrictions.

11. Defendants have also suggested that unvaccinated personnel present a danger to
mission completion because somehow those individuals are more likely to contract COVID-19 or
develop a severe case, and some missions make medical evacuation difficult. But the physical
danger of our missions and the likelihood of injury, as well as the undeveloped locations of some
of our missions, far outweighs the risk of a 20—-30-year-old in peak physical condition developing
a severe case of COVID-19 on deployment. Regardless, because of the high risk of injury, we have
medical support wherever we go and are always prepared to deal with injury or illness. Routine
NSW mission risks include everything from gunshot wounds, blast injuries, parachute accidents,
dive injuries, aircraft emergencies, and vehicle rollovers to animal bites, swimming or diving in
polluted waters, and breathing toxic chemical fumes. I submit that COVID-19 is probably the least
dangerous medical risk SEALs could be expected to encounter on a deployment.

12. The Defendants quote military wide or Navy wide COVID-19 hospitalizations and
deaths, but to my knowledge have not revealed official numbers from the NSW community

specifically. The Navy is the most obese service in the military with a rate of 22% according to a

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2019 DoD study and CDC data has shown that obesity is a leading co-morbidity for COVID-19.
However, SEALs, SWCCs, EOD Technicians, and Divers make up a tiny fraction of the Navy and
are among the most healthy and fit people on earth. NSW personnel are required to be stronger,
faster, and tougher than average military personnel due to the extreme, no fail nature of our
missions. As such, SEALs, EOD, and Divers are required to pass a higher level “Dive Physical”
than other personnel, which involves a higher level of medical screening. Personally, I have never
witnessed or heard of anyone from the Plaintiffs’ peer group being evacuated or hospitalized due

to COVID-19.

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and

correct. Executed on February 13, 2022.

NIWY SEAL 1%
NAVY SEAL 18

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

U.S. NAVY SEALs 1-3, on behalf of
themselves and all others similarly situated;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1, on behalf of
himself and all others similarly situated; U.S.
NAVY SEALS 4-26; U.S. NAVY SPECIAL
WARFARE COMBATANT CRAFT
CREWMEN 1-5; and U.S. NAVY DIVERS
1-3,

Plaintiffs, Case No. 4:21-cv-01236-O
Vv.

LLOYD J. AUSTIN, III, in his official
capacity as United States Secretary of
Defense; UNITED STATES
DEPARTMENT OF DEFENSE; CARLOS
DEL TORO, in his official capacity as
United States Secretary of the Navy,

Defendants.

DECLARATION OF U.S. NAVY SPECIAL WARFARE COMBATANT CRAFT
CREWMAN 4

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury as follows:

1. I am over the age of eighteen and am competent to make this declaration.
2. I have served in the Navy for 10 years.
3. I reviewed the declarations submitted in support of the Defendants’ motion to stay

pending appeal and I submit this declaration in response.
4. Many of the Plaintiffs are not currently at deployable commands.
5. All 35 Plaintiffs, including those of us at deployable commands, are not subject to

overnight deployment. Only Tier 1 elements or members of certain task forces (which no Plaintiff

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is a member of), are that quickly deployable. Even in those situations, those individuals have a
certain idea of when they may be asked to deploy.

6. The idea that any of the 35 of us could be asked to leave on such short notice is far-
fetched, except for during total all-out war.

7. Weare stationed at teams that operate on a 24-month cycle, which is broken up into
four six-month cycles. This allows us to build our lives around the timeframe for deployments and
gives us ample opportunity to prepare.

8. With respect to our integration with Fleet assets while on deployment, while Naval
Special Warfare (NSW) does sometimes call upon outside support, that is not done frequently. For
large-scale exercises, civilian contractors are often involved.

9. Also, the use of these forces generally entails minimal close contact—in other
words, there is no need to board the vessel, and if so, it is only for short durations. If boarding is
required on surface assets (i.e. large fleet ships), we are given a designated space for our personnel,
equipment and we keep to ourselves because of the general nature of NSW work and the
corresponding clearance level associated with the missions (i.e. Secret/Top Secret level). As a
result, the vast majority of active-duty members and personnel on board the Fleet either do not
hold the required clearance and/or do not have the need to know that we are there. Moreover, other
personnel would not be allowed in our occupied spaces.

10. We generally have no need for NSW personnel to mingle through compartments of
the ship. The only two spaces that would be closely shared, if any, would be the galley and the
gym. But we generally pack our own gyms and it’s not uncommon for us to work out of what we
call a fly-away kit (a ISU full of workout equipment only for our use). If that were a concern, it

would be easy enough to work with the ship to have certain times for certain individuals and

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mitigate any risk or concerns of cross-pollination. As the newest NAVADMIN (07/22) recognizes,
there will be COVID-19 outbreaks on ships regardless of vaccination, so NSW would likely take
these measures anyway.

11. Additionally, aside from eating, masks can be worn by everyone on ships as they
have been over the last couple years.

12. To the extent the image that is portrayed is that we are constantly onboard fleet
assets, and that when we are onboard we mingle throughout their space, that is not consistent with
my personal experience. When we are onboard we are generally left alone and more often than
not, the ship is briefed by senior leadership to leave us to our business and pretend we are not there.

13. While attached to my current team, I stood up a Troop that deployed during the
early stages of the pandemic, as I discussed in the declaration I filed in December.

14. We deployed to the Middle East. Our Unit Level Training began when COVID-19
first hit the United States. There were no treatments or vaccines at the time, nor much information
about the virus, its transmissibility, or its effects. Through the measures of symptomatic testing,
masking when appropriate, and social distancing, we were able to complete all phases of training
over 12 months.

15. For three weeks before we left, we did blanket testing so that if anyone was positive,
they had time to quarantine for 14 days before departure.

16. Our training included multiple Inter-Fleet Operations and large-scale military
exercises with various kinds of fleet assets that were focused on a real-world operation that my
Troop was set to conduct on deployment. We were able to conduct all rehearsals without any

hiccups or setbacks from COVID-19 before a vaccine was mandated or even available.

22-10077.2742
19a

Case 4:21-cv-01236-O Document 100 Filed 01/31/22 Page18o0f18 PagelD 2889

17. My Troop then went on to conduct a successful multi-theater deployment with
almost 50% of the members unvaccinated. Again, COVID posed no threat or setbacks to our ability
to be combat-ready and effective, even though the variant circulating at that time was much more
serious than the current variant.

18. From my personal experience, as well as my experience having completed my
entire 24-month deployment cycle during the worst of the COVID-19 pandemic, I do not believe
there would be increased operational risk by the 35 Plaintiffs in this lawsuit being unvaccinated.

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and

correct. Executed on January 31, 2022.

/s/ Special Warfare Combatant Craft Crewman 4
Special Warfare Combatant Craft Crewman 4

22-10077.2743
20a

UNDER SECRETARY OF DEFENSE
4000 DEFENSE PENTAGON
WASHINGTON, D.C. 20301-4000

DEC 2 0 2021

PERSONNEL AND
READINESS

MEMORANDUM FOR SENIOR PENTAGON LEADERSHIP
COMMANDERS OF THE COMBATANT COMMANDS
DEFENSE AGENCY AND DOD FIELD ACTIVITY DIRECTORS

SUBJECT: Force Health Protection Guidance (Supplement 23) Revision 3 — Department of
Defense Guidance for Coronavirus Disease 2019 Vaccination Attestation, Screening
Testing, and Vaccination Verification

This memorandum rescinds and replaces reference (a),! and provides updated guidance
for implementing additional force health protection and workplace safety measures directed by
the White House Safer Federal Workforce Task Force (reference (b)) to reduce the transmission
of the virus that causes coronavirus disease 2019 (COVID-19).

In accordance with references (b), (c), and (d), DoD civilian employees were required to
be fully vaccinated by November 22, 2021, subject to exemptions as required by law. For
purposes of this guidance, “DoD civilian employee” includes foreign nationals employed by
DoD outside the United States to the maximum extent possible while respecting host nation
agreements and laws. It also includes DoD civilian employees who are engaged in full-time
telework or remote work. Additional information about the requirements for DoD civilian
employees can be found in Attachment 1.

DoD contractor personnel and official visitors must attest to being fully vaccinated and, if
not fully vaccinated, present the results of a recent negative COVID-19 test as a condition of
physical access to DoD buildings and DoD-leased spaces in non-DoD buildings in which official
DoD business takes place (referred to jointly in this memorandum as “DoD facilities”). For
purposes of this physical access requirement, “contractor personnel” are those individuals issued
a credential by DoD that affords the individual recurring access to DoD facilities, classified
herein as “credentialed recurring access” (CRA) (e.g., Common Access Cardholders). “Official
visitors” are non-DoD individuals seeking access, one time or recurring, in association with the
performance of official DoD business (e.g., to attend a meeting), but who do not have CRA. The
COVID-19 vaccination status for all individuals with CRA and official visitors will be
determined in accordance with Attachment 2.

Thesé vaccination and physical access requirements do not apply to personnel receiving
ad hoc access to DoD facilities (e.g., delivery personnel, taxi services); to individuals who have
access to the grounds of, but not the buildings on, DoD installations (e.g., contract
groundskeepers, fuel delivery personnel, household goods transportation personnel); to personnel
accessing DoD buildings unrelated to the performance of DoD business (e.g., residential
housing); or to personnel accessing DoD facilities to receive a public benefit (e.g., commissary;

1 References are listed in Attachment 10.
21a

exchange; public museum; air show; military medical treatment facility; Morale, Welfare, and
Recreation resources).

In accordance with reference (e), Service members (members of the Armed Forces under
DoD authority on active duty or in the Ready Reserve, including members of the National
Guard) are required to be fully vaccinated against COVID-19. Service members’ vaccination
status will be validated utilizing their Military Service-specific Individual Medical Readiness
(IMR) system. Ifa Service member has been vaccinated against COVID-19 outside the Military
Health System, that Service member must show official proof of his or her COVID-19
vaccination status to update the IMR system. Once the applicable mandatory vaccination date
has passed, COVID-19 screening testing as described in Attachment 7 is required at least weekly
for Service members entering a DoD facility who are not fully vaccinated, including those who
have an exemption request under review, or who are exempted from COVID-19 vaccination.
Service members who are not on active duty and who also are DoD civilian employees or DoD
contractor personnel must follow the applicable requirements in this memorandum for DoD
civilian employees or DoD contractor personnel, as the case may be. Service members not on
active duty must comply with any other applicable DoD or DoD Component guidance. Service
members who are actively participating in COVID-19 vaccine clinical trials begun prior to
November 22, 2021 are exempted from mandatory vaccination against COVID-19 until the trial
is complete in order to avoid invalidating such clinical trial results.

Individuals are considered fully vaccinated 2 weeks after completing the second dose of a
two-dose COVID-19 vaccine or 2 weeks after receiving a single dose of a one-dose COVID-19
vaccine. Individuals must be vaccinated with vaccines that are either fully licensed or authorized
for emergency use by the Food and Drug Administration (FDA) (e.g., Pfizer-
BioNTech/COMIRNATY, Moderna, Johnson & Johnson/Janssen vaccines); listed for
emergency use on the World Health Organization Emergency Use Listing (e.g.,
AstraZeneca/Oxford); or approved for use in a clinical vaccine trial for which vaccine efficacy
has been independently confirmed (e.g., Novavax). Those with previous COVID-19 infection(s)
or antibody test results are not considered fully vaccinated on that basis for the purposes of this
memorandum.

All medical and other information collected from individuals will be maintained in a
manner meeting the privacy requirements in Attachment 9.

The Secretaries of Military Departments and the Director of Administration and
Management for all other DoD Components will publish any necessary supplemental
instructions and ensure that all contract and associated funding implications are considered.

DoD Components should engage with DoD civilian employee unions as they develop
supplemental guidance and otherwise satisfy any applicable collective bargaining obligations
under the law at the earliest convenience, including on a post-implementation basis.

This memorandum and other COVID-19 guidance memoranda are centrally located at:
https://www.defense.gov/Spotlights/Coronavirus-DOD-Response/Latest-DOD-Guidance/.
22a

Please direct any questions or comments to the following email address: dha.ncr.ha-

support.list.policy-hrpo-kmc-owners@mail.mil.

Gilbert R. Cisneros, Jr.

Attachments:

1.
2.

3.

ATTACHMENT 1: Vaccination Requirements for DoD Civilian Employees
ATTACHMENT 2: Requirements for DoD Contractor Personnel, Official Visitors, and
Others Seeking Access to Facilities

ATTACHMENT 3: DD Form 3175 — “DoD Civilian Employee Certification of
Vaccination”

ATTACHMENT 4: DD Form 3150 - “Contractor and Visitor Certification of Vaccination”
ATTACHMENT 5: DD Form 3176 — “Request for a Medical Exemption or Delay to the
COVID-19 Vaccination Requirement”

ATTACHMENT 6: DD Form 3177 — “Request for a Religious Exemption to the COVID-19
Vaccination Requirement”

ATTACHMENT 7: COVID-19 Screening Testing Requirements

ATTACHMENT 8: Requirements for Obtaining Self-Collection Kits and Self-Tests
ATTACHMENT 9: Privacy Requirements

0. ATTACHMENT 10: References
23a

ATTACHMENT 1
Vaccination Requirements for DoD Civilian Employees

1. Vaccination Requirement

a.

DoD civilian employees are required to be fully vaccinated, unless they have received
a temporary or permanent exemption. DoD civilian employees who are actively
participating in COVID-19 vaccine clinical trials begun prior to November 22, 2021,
are exempted from mandatory vaccination against COVID-19 until the trial is
complete in order to avoid invalidating such clinical trial results.

DoD civilian employees who are not fully vaccinated must comply with all DoD
requirements for individuals who are not fully vaccinated, including those
requirements related to masking, physical distancing, and travel. Weekly COVID-19
testing is required for those DoD civilian employees who are not fully vaccinated,
including those who have medical or religious exemptions. DoD civilian employees
who telework or work remotely on a full-time basis are not subject to weekly testing,
but must provide a negative result from a test performed within the prior 72 hours for
entry into a DoD facility.

DoD civilian employees are eligible to receive the COVID-19 vaccine at any DoD
vaccination site, including military medical treatment facilities. They may also opt to
receive the COVID-19 vaccine at locations other than DoD vaccination sites, such as
retail stores, private medical practices, and/or local and State public health
department sites.

New DoD civilian employees must be fully vaccinated by their entry on duty (start)
date.

i. The DoD or Office of the Secretary of Defense (OSD) Component head
concerned may approve temporary exemptions in writing for up to 60 days
after a DoD civilian employee’s start date for urgent, mission-critical hiring
needs in circumstances in which a DoD civilian employee could not have been
fully vaccinated between the time the job opportunity announcement closes
and the DoD civilian employee’s start date. This authority may be delegated
in writing to the DoD or OSD Component head’s Principal Deputy (or
equivalent) but no lower.

ii. | DoD Components must address the COVID-19 vaccination requirement in job
opportunity announcements and tentative and final offer letters. For hiring
actions currently underway, DoD Components must issue revised tentative
and final offer letters. Sample language can be found in reference (f).

DoD civilian employees are authorized official duty time to receive vaccination
doses. For DoD civilian employees who are unable to receive a COVID-19
vaccination within their duty hours, regular overtime rules are applicable.
f.

24a

DoD civilian employees are authorized administrative leave for purposes of taking a
family member to get a vaccination and for themselves to recover from vaccination.
DoD civilian employees who experience an adverse reaction to a COVID-19
vaccination should be granted no more than two workdays of administrative leave for
recovery associated with a single COVID-19 vaccination dose. DoD civilian
employees should use the time and attendance code for “physical fitness” to record
administrative leave for COVID-19 vaccination recovery time that prevents the
employee from working or for taking a family member to be vaccinated for COVID-
19. The type hour code is “LN” and the environmental/hazard/other code is “PF”.
Non-appropriated fund employers should code administrative leave related to
COVID-19 in a way that can be easily reported.

2. Verification of Vaccination

a.

DoD civilian employees who have received a dose of a one-dose vaccine, or both
doses of a two-dose vaccine, must provide proof of vaccination to their direct
supervisor. For purposes of the vaccination data submission and verification
requirements, “direct supervisor” includes an authorized human resources official.

Proof of vaccination may be submitted either in hard copy or in an electronic format.
The proof may be a photocopy or photograph of the vaccination record, if it legibly
displays the data points to be verified by the supervisor. DoD civilian employees
who are not fully vaccinated must provide proof of vaccination to their supervisor
upon receipt of each required dose. Acceptable proof includes:

1. A copy of the record of immunization from a health care provider or
pharmacy;
ii. A copy of the COVID-19 Vaccination Record Card (CDC Form MLS-
319813_r, published on September 3, 2020);
iii. A copy of medical records documenting the vaccination;
iv. A copy of immunization records from a public health or State immunization
information system; or
v. Acopy of any other official documentation containing the data points required
to be verified by the supervisor.

In addition to providing proof of vaccination to their supervisors, DoD civilian
employees also will complete Section A of DD Form 3175 (Attachment 3). DoD
civilian employees with access to milConnect (https://milconnect.dmdc.osd.mil/)
will complete the DD Form 3175 via milConnect; otherwise use of a hard copy” is
acceptable. DoD civilian employees who complete the DD Form 3175 via
milConnect do not need to email or otherwise transmit a copy of the form to their
supervisors. DoD civilian employees using a hard copy will provide the hard copy to
their supervisor. DoD civilian employees are required to complete the DD Form
3175 even if they already completed the DD Form 3150 (Attachment 4).
25a

d. Upon receiving proof of vaccination, a DoD civilian employee’s supervisor will

verify that the proof of vaccination provided contains the following data points:

i. Type of vaccine administered;
ii. Number of doses received;
iii. Date(s) of administration; and
iv. Name of the health care professional(s) or clinic site(s) administering the
vaccine(s).

In addition to verifying that a DoD civilian employee’s proof of vaccination includes
the required data points, supervisors also will complete Section B of DD Form 3175.
Supervisors with access to milConnect (https://mileonnect.dmdc.osd.mil/) will
complete the DD Form 3175 via milConnect using the DoD civilian employee’s
Employee Identification Number; otherwise use of a hard copy is acceptable.

Supervisors will retain DoD civilian employees’ proof of vaccination and DD Form
3175 (for those DoD civilian employees not using milConnect) in accordance with
their DoD Component’s recordkeeping requirements for DoD civilian employee
medical records and the privacy requirements contained in Attachment 9.
Supervisors should not ask for copies of the DD Form 3175 from those employees
who used milConnect to complete the form. Supervisors who receive completed
copies of the DD Form 3175 from DoD civilian employees who completed the DD
Form 3175 using milConnect shall destroy the copy or return it to the employee.

DoD civilian employees may not be required to use their own personal equipment for
the purpose of submitting proof of vaccination or DD Form 3175. DoD civilian
employees who submit proof of vaccination or the DD Form 3175 in an electronic
format are encouraged to use encrypted email or password protected files with DoD
SAFE file transfer (https://safe.apps.mil/).

3. Enforcement of DoD Civilian Employee COVID-19 Vaccination Requirement:

a.

b.

DoD civilian employees who refuse to be vaccinated, or to provide proof of
vaccination, are subject to disciplinary measures, up to and including removal from
Federal service, unless the DoD civilian employee has received an exemption or the
DoD civilian employee’s request for an exemption is pending a decision. DoD
Components should generally follow the recommended guidelines in reference (g),
subject to any applicable Component policy and collective bargaining agreements.

Progressive enforcement actions include, but are not limited, to:

i. A 5 calendar-day period of counseling and education;

ii. A short suspension without pay, generally 14 calendar days or less, with an
appropriate notice period. Senior Executive Service members may only be
suspended for more than 14 calendar days;

iti. Removal from Federal service for failing to follow a direct order.
26a

c. During the notice periods preceding adverse employment actions, DoD civilian
employees generally should not be placed on administrative leave. DoD Components
should require DoD civilian employees to continue to telework or report to the
worksite and follow all mitigation measures applicable to not fully vaccinated DoD
civilian employees when reporting to the worksite.

d. DoD Components will designate officials, at the appropriate organizational level, to
handle the disciplinary process to promote consistent application of disciplinary
measures. Such officials will decide each case with due regard to the facts and
circumstances of that case.

e. Supervisors should contact their servicing human resources and legal offices to
discuss options available to address individual situations regarding enforcement of
this requirement.

f. For employees who have not yet attested to vaccination status; are not vaccinated and
did not submit an exemption request, or have not begun vaccination following denial
of an exemption request, Components are generally encouraged to continue with
robust education and counseling efforts as the first step in an enforcement process,
with no subsequent enforcement actions beyond that education and counseling and, if
warranted, a letter of reprimand, until the new calendar year begins in January 2022.

g. DoD Components are encouraged to identify an occupational health office, medical
office, or other resource with which a DoD civilian employee may consult during the
period of counseling and education.

4. Exemptions to DoD Civilian Employee COVID-19 Vaccination Requirement:

a. Exemption Requests and Decision-Making Procedures. DoD civilian employees may
request an exemption on the basis of a medical condition or circumstance or a
sincerely held religious belief, practice or observance. Because all DoD civilian
employees must now be vaccinated against COVID-19 as a condition of employment,
exemptions will be granted in limited circumstances and only where legally required.
The Secretaries of the Military Departments and the Director of Administration and
Management for all other DoD Components will oversee Component implementation
of the following decision-making procedures.

b. Personnel.

i. Decision Authorities. Management official(s) will be designated to serve as
Decision Authorities to make decisions concerning requests for exemption
from the COVID-19 vaccination requirement, in consultation with the
organization’s servicing legal office. Decision Authorities will be at an
appropriate level within the organization to consider the impact, if any, that
granting a request will have on the DoD Component operations and to
promote similar cases being handled in a consistent manner, with due regard
27a

for the facts and circumstances of each case. Each employee’s request must
be considered on its own merits.

i. Subject Matter Experts. DoD Components may identify subject matter
experts in areas such as human resources (HR), equal employment
opportunity (EEO), medicine, and religious matters to serve as advisors to
assist Decision Authorities. Such advisors may provide individual advice, as
needed by the Decision Authority, but may not be used to develop a group or
consensus recommendation or decision.

iil. Administrative Support. DoD Components will provide appropriate personnel
and other resources to administratively support the Decision Authorities,
including support necessary to assist the Decision Authorities with preparing
written products.

c. Employee Notice. DoD Components will inform DoD civilian employees how to
make a request for an exemption and notify them that requests must have been
submitted no later than November 8, 2021, absent extenuating circumstances, to be
considered timely. A DoD civilian employee’s failure to submit a timely request for
exemption is not a basis to deny a request but may be relevant in evaluating the
request.

d. Employee Responsibilities. To make a request for exemption from the COVID-19
vaccination requirement, DoD civilian employees must submit a request to their
direct supervisor. For purposes of submitting this exemption request, “direct
supervisor” includes an authorized human resources official. The employee must
provide an official statement which describes the medical or religious reason the
employee objects to vaccination against COVID-19. Generally, such requests must
be in writing. DoD civilian employees may use DD Form 3176 (Attachment 5) or
DD Form 3177 (Attachment 6) to submit their requests. DoD civilian employees who
make oral requests may be provided a sample written request format and/or be
interviewed to develop the basis for the request. While the use of the DD Form 3176
and DD Form 3177 is optional for DoD civilian employees, when DoD civilian
employees make a request, they must provide the following information:

i. Medical Exemption Requests.

e A description of the medical condition or circumstance that is the basis for
the request for a medical exemption from the COVID-19 vaccination
requirement;

e Anexplanation of why the medical condition or circumstance prevents the
employee from being safely vaccinated against COVID-19;

e Ifitis a temporary medical condition or circumstance, a statement
concerning when it will no longer be a medical necessity to delay
vaccination against COVID-19; and

e Any additional information, to include medical documentation that
addresses the employee’s particular medical condition or circumstance,
which may be helpful in resolving the employee’s request for a medical
exemption from the COVID-19 vaccination requirement.
il.

28a

Religious Exemption Requests.

e A description of the religious belief, practice, or observance that is the
basis for the request for a religious exemption from the COVID-19
vaccination requirement;

e A description of when and how the DoD civilian employee came to hold
the religious belief or observe the religious practice;

e A description of how the DoD civilian employee has demonstrated the
religious belief or observed the religious practice in the past;

e An explanation of how the COVID-19 vaccine conflicts with the religious
belief, practice, or observance;

e A statement concerning whether the DoD civilian employee has
previously raised an objection to a vaccination, medical treatment, or
medicine based on a religious belief or practice. If so, a description of the
circumstances, timing, and resolution of the matter; and

e Any additional information that may be helpful in resolving the DoD
civilian employee’s request for a religious exemption from the COVID-19
vaccination requirement.

e. Supervisor Responsibilities.

i.

ii.

ili.

iv.

Following receipt of an employee’s request for exemption, supervisors must
update Section B of the employee’s DD Form 3175 to indicate that a request
for exemption determination is pending.

As necessary, supervisors will engage with the employee to ensure
completeness of the employee’s exemption request.

In coordination with human resources officials, supervisors will prepare an
exemption request package that contains factual information about the
circumstances of the employee’s request. A complete exemption request
package will include the basis for the employee’s request and any supporting
documentation submitted by the employee, a description of the nature of the
employee’s job responsibilities and work environment, and any circumstances
relevant to a management-level assessment of the reasonably foreseeable
effects on the agency’s operations, including protecting the agency’s
workforce and members of the public with whom the employee interacts in
the workplace from COVID-19, if the employee remains unvaccinated.
Supervisors will forward the exemption request package to the Decision
Authority Support Office.

f. Decision Authority Support Office.

i.

il.

ili,

DoD Components will establish Decision Authority Support Offices to
support exemption request Decision Authorities.

The Decision Authority Support Office will intake exemption request
packages and, under the supervision of the Decision Authority, provide
administrative support to the Decision Authority.

At the request of the Decision Authority, the Decision Authority Support
iv.

29a

Office may coordinate with subject matter experts to obtain written
documentation which includes relevant factual information and, as necessary,
a professional opinion related to the factual information, for inclusion in the
exemption request package.

The Decision Authority Support Office may not provide a consensus opinion
or recommendation to the Decision Authority.

g. Decision Authority Determination.

i.

il.

iil.

The Decision Authority first analyzes the exemption request package. As
necessary, the Decision Authority may request additional information and consult
with subject matter experts.

After conducting a review of the exemption request, the Decision Authority
makes a determination, prepares a written statement that includes the reasons
for the determination (which may involve drafting assistance based on the
Decision Authority’s instructions regarding its contents), and obtains a legal
review of the determination.

In cases where the exemption is temporary or denied, the Decision Authority’s
determination must specify a date by which the DoD civilian employee must
be fully vaccinated against COVID-19. In specifying that date, DoD civilian
employees must be given a minimum period of 14 days to receive their first
(or only) dose of a COVID-19 vaccine.

h. Employee Notification of Determination. The Decision Authority Support Office
will transmit the Decision Authority’s written determination to the DoD civilian
employee’s supervisor, who, in turn, provides the DoD civilian employee with a copy
of the written determination, updates the DD Form 3175, and informs the DoD
civilian employee of next steps.

i. A chart illustrating the exemption request process is below.

Position Role/Responsibility Output Submit to
Requesting employee | Attest to vaccination | Completed DD Form | Supervisor
status via DD Form 3175.
3175 to indicate
exemption pending.
Requesting employee | Request exemption. Completed DD Form | Supervisor
3176 (medical) or
DD Form 3177

(religious), as
appropriate, or other
request that contains
the information
required by FHP 23,
Revision 3.

10
30a

Supervisor, in
consultation with HR
officials

Provide relevant
information
concerming
employee’s
occupation and work
environment, to
include: availability
of measures to
physically distance
requestor from co-
workers and members
of the public, the
volume of exemption
requests in the
organization, and any
other relevant
information
concerning the
circumstances of the
employee’s request.

Exemption request
package that includes
employee’s request
and supervisory
information
concerming
employee’s
occupation, work
environment, and
other circumstances
of the request.

Decision Authority
Support Office

Decision Authority
Support Office

Receive and track
processing of
exemption request
package. Supplement
package with
individual advice
from subject matter
experts and relevant
factual information,
as directed by the

Exemption request
package that includes
employee’s request;
supervisor
information
concerning
employee’s
occupation, work
environment, and
other circumstances
of the request; and
any supporting
documentation
relevant to the
Decision Authority’s
analysis.

Decision Authority

11
31a

Decision Authority Review submitted Written decision that | Supervisor
documentation, addresses employee’s
request any individual
reasonably necessary | circumstances and
additional has been reviewed by
information, and appropriate legal
prepare written advisors.
decision in
consultation with
legal advisors and
with the advice of
subject matter experts
as appropriate.
Supervisor Receive decision, If approved, Employee

discuss with
employee. If
exemption approved,
implement mitigation
measures and, if
necessary, address
any follow-on
requests for
accommodation in

employee continues
to comply with
generally-applicable
mitigation measures
(e.g., screening
testing, masking, and
physical distancing)
and any other
mitigation measures

accordance with directed by the
Component EEO Decision Authority or
procedures. If management
disapproved, provide | officials. If
opportunity for disapproved,
counseling by vaccination tracking
medical professional | and/or progressive

or other appropriate | discipline.

expert/ initiate
requirement for
vaccination. Work
with the legal
advisor(s) and, as
appropriate, HR
LMER and EEO
offices.

j. Exemption Criteria.

i. Religious Exemption Requests. Requests for religious exemption will be
analyzed pursuant to the Religious Freedom Restoration Act of 1993 (RFRA),
42 U.S.C. § 2000bb et seq. RFRA prohibits the Government from
substantially burdening a person’s exercise of religion, unless it demonstrates

12
il.

32a

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. In the first instance, Decision Authorities
are to determine whether the requestor has met his or her burden to establish
that the vaccination requirement imposes a substantial burden on exercise of a
sincerely held religious belief. Ifso, Decision Authorities analyze the request
to determine whether the burden on religious exercise is the least restrictive
means of furthering the Government’s compelling interest in health and safety
of the DoD workforce, and the health and safety of members of the public
with whom they interact. If vaccination is not the least restrictive means, the
exemption will be granted and supervisors will implement the less restrictive
means.

Medical Exemption Requests. Pursuant to the Rehabilitation Act of 1973, as
amended, 29 U.S.C. § 791 et seq. Decision Authorities will analyze requests
for medical exemption to determine whether the medical condition or
circumstance prevents the employee from safely being vaccinated. If so, the
employee will be exempt from vaccination (temporarily or permanently, as
appropriate). Supervisors will direct compliance with applicable force health
protection guidance and direct any mitigation measures that are necessary to
prevent the spread of the virus that causes COVID-19 in the workplace and to
the members of the public with whom the employee interacts. If such
measures result in the employee being unable to perform the essential
functions of the position, such matters will be referred to the equal
employment opportunity reasonable accommodation process.

k. Additional Guidance.

ii.

ill.

Information collected concerning medical and religious exemption requests
must be maintained in accordance with the privacy requirements in
Attachment 9. Requests for medical exemption will be treated as medical
records to be maintained separately from other personnel files.

Discipline for failure to meet the COVID-19 vaccination requirement will not
be initiated against a DoD civilian employee while a request for a medical or
religious exemption from the COVID-19 vaccination requirement is pending
determination. If a DoD civilian employee submits a request after discipline
is initiated, disciplinary measures may be held in abeyance where appropriate.
DoD civilian employees who are not fully vaccinated but who have a pending
request for exemption from vaccination are required to comply with all force
health protection and mitigation measures that are applicable to DoD civilian
employees in the worksite who are not fully vaccinated (for example,
screening testing (Attachment 7), masking, and physical distancing).

Requests for reasonable accommodation related to those measures will be
combined with any pending medical or religious exemption to vaccination
request, for purposes of making a final determination concerning those
measures. Without making a finding concerning whether a sufficient basis for
a reasonable accommodation concerning those measures exists, the supervisor

13
iv.

vi.

33a

may use the normal interactive process to pursue a temporary accommodation.
that protects the health and safety of the workplace while a decision
concerning those measures is pending. Otherwise, requests for reasonable
accommodation related to force health protection and mitigation measures
may be analyzed separately from requests for exemption from vaccination.

A DoD civilian employee who receives an exemption from the vaccination
requirement may, because of the exemption, be unable to perform the duties
and responsibilities of the position without a change in working conditions.
Supervisors will immediately implement any mitigation measures required by
the Decision Authority and applicable force health protection guidance.
Supervisors may engage in the normal interactive process concerning any
other measures necessary to protect the health and safety of the workplace.
Requests for exemption from candidates for employment will be handled
consistent with the provisions in this attachment.

Unless responsibility is otherwise established in a written support agreement,
the Combatant Command Support Agent identified in reference (h) is
responsible for administration of exemption processes applicable to DoD
civilian employees assigned, detailed, or otherwise deployed to a Combatant
Command area of responsibility.

14
34a

ATTACHMENT 2
Requirements for DoD Contractor Personnel, Official Visitors, and Others Seeking Access
‘ to Facilities

1. DoD Contractor Personnel

a. For DoD contractor personnel, the DoD civilian vaccination deadline of
November 22, 2021, does not apply. Vaccination requirements for DoD contractor
personnel will be in accordance with reference (i), as implemented by reference (j), as
directed under Executive Order 14042 (reference (k)).

b. DoD contractor personnel will complete the DD Form 3150, “Contractor and Visitor
Certification of Vaccination” (Attachment 4), maintain a current completed DD Form
3150, and show it to authorized DoD personnel upon request. Failure to complete the
DD Form 3150 may result in denying DoD contractor personnel access to the DoD
facility to which access is sought.

c. DoD contractor personnel who are not fully vaccinated against COVID-19 because
they are not performing under a covered contract that requires COVID-19
vaccination, due to a legally required accommodation, or who decline to attest to their
COVID-19 vaccination status will be subject to COVID-19 screening testing at least
weekly as set forth in this guidance (Attachment 7). DoD contractor personnel who
refuse required screening testing will be denied access to DoD facilities.

d. In accordance with applicable contracts, DoD contractor personnel may be offered,
but are not required to receive, COVID-19 vaccines at their DoD worksites.

2. Official Visitors

a. Official visitors will complete DD Form 3150, “Contractor and Visitor Certification
of Vaccination’? (Attachment 4); and maintain a current completed DD Form 3150
and show it to authorized DoD personnel, upon request. Failure to complete the DD
Form 3150 may result in denial of an official visitor’s access to the DoD facility to
which access is sought.

b. Official visitors who are not fully vaccinated against COVID-19, or who decline to
volunteer their COVID-19 vaccination status, must show an electronic or paper copy
of negative results from an FDA-authorized or approved COVID-19 test administered
no earlier than 72 hours prior to their visit. If an official visitor is unable to show a
negative COVID-19 test result, the visitor may be provided onsite self-testing, if
available, or will be denied access to the DoD facilities to which access is sought.
Service members who are not on active duty at the time of their official visit are
subject to the requirements in this paragraph.

* https://www.esd.whs.mil/Portals/54/Documents/DD/forms/dd/dd3150.pdf

15
35a

c. Official visitors will follow applicable policies and procedures of both DoD and the
Department or Agency they are visiting, if different from DoD.

3. Others Seeking Access to Facilities

Individuals other than official visitors seeking access to facilities located on DoD installations,
but operated by other Federal departments and agencies, will follow the policies and procedures
of that other department or agency.

16
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ATTACHMENT 3
DD Form 3175 — “DoD Civilian Employee Certification of Vaccination”
CUI (when filled in)

DoD CIVILIAN EMPLOYEE CERTIFICATION OF VACCINATION

PRIVACY ACT STATEMENT

Authority: Pursuant to 5 U.S.C. chapters 11 and 79, and in discharging the functions directed under Executive Order 14043, Requiring Coronavirus Disease
2019 Vaccination for Federal Employees (Sept. 9, 2021), DoD is authorized to collect this information. Additional authorities for the systems of records
associated with this collection of information also include: E.O. 13991, Protecting the Federal Workforce and Requiring Mask-Wearing; E.O. 12196, Occupational
Safety and Health Program for Federal Employees; 10 U.S.C. 113, 10U.S.C. 136, 10 U.S.C, 7013, 10 U.S.C. 8013, 10 U.S.C. 9013, 10 U.S.C. 2672; DoD
Directive 5525.21; and DoD Instruction 6200.03. Providing this information is mandatory, and DoD is authorized to impose penalties for failure to provide the
information pursuant to applicable Federal personnel laws and regulations

Principal Purpose: This information is being collected and maintained to implement Coronavirus Disease 2019 (COVID-19) workplace safety plans, and
ensure the safety and protection of the DoD workforce, workplace, and other DoD facilities and environments, consistent with the above-referenced authorities,
the COVID-19 Workplace Safety: Agency Model Safety Principles established by the Safer Federal Workforce Task Force. and guidance from the Centers for
Disease Control and Prevention and the Occupational Safety and Health Administration.

Routine Use(s): While the information requested on this form is intended to be used primarily for intemal purposes, in certain circumstances it may be
necessary to disclose this information externally, for example to disclose information to: a person, organization or governmental entity as necessary and
relevant to notify them of, respond to, or guard against a public health emergency, or other similar crisis, including to comply with laws governing the reporting of
communicable disease or other laws concerning health and safety in the work environment: adjudicative bodies (e.g., the Merit System Protection Board),
arbitrators, and hearing examiners to the extent necessary to carry out their authorized duties regarding Federal employment; contractors, grantees, experts.
consultants, students, and others as necessary to perform their duties for the Federal goverment: or agencies, courts, and persons as necessary and relevant
in the course of litigation, and as necessary and in accordance with requirements for law enforcement; or to a person authorized to act on your behalf

A complete list of routine uses may be found in the applicable System of Records Notice (SORN) associated with the collection of this information as follows:

For most Federal civilian employees: OPM/GOVT-10, Employee Medical File System Records, 75 Fed. Reg. 35099 (Jun, 21, 2010), amended 80 Fed. Reg
74815 (Nov, 30, 2015). For Federal civilian employees not covered by OPM/GOVT-10: DPR 39 DoD, DoD Personnel Accountability and Assessment System of
Records, 85 Fed. Reg. 17047 (Mar. 26, 2020) (also available at https://dpcld.defense.gov/Portals/4 9/Documents/Privacy/SORNs/OSDJS/DPR-39-DoD.pdf)

Consequences of Fallure to Provide Information: Providing this information is mandatory. Unless granted an exemption, all covered Federal civilian
employees are required to be vaccinated against COVID-19. Employees are required to provide documentation concerning their vaccination status to their
employing DoD Component. Failure to provide this information may subject you to disciplinary action, including and up to removal from Federal service.

INSTRUCTIONS: Section A of this form should be completed by DoD civilian employees only. Section B of this form should be completed by the DoD civilian
employee's supervisor (or authorized human resources official). This form should be completed by DoD civilian employees only. Service members and
employees of DoD contractors should not complete this form.

SECTION A. To be completed by DoD civilian employees.
1. CIVILIAN EMPLOYEE NAME (Last, First, MI): | 2. CIVILIAN EMPLOYEE DoD ID NUMBER:

3. PLEASE CHECK ALL THAT COINCIDES WITH YOUR COVID-19 VACCINATION STATUS:

CI] 3.a. | am fully vaccinated.
Individuals are considered “fully vaccinated” two weeks after completing the second dose of a two-dose COVID-19 vaccine or two weeks after
receiving a single dose of a one-dose vaccine. Accepted COVID-19 vaccines are those which have received a license or emergency use
authorization from the U.S, Food and Drug Administration and those COVID-19 vaccines on the World Health Organization Emergency Use Listing.
“Fully vaccinated” also includes circumstances in which the individual was a participant in a U.S. site clinical trial and has received all recommended
doses,

[| 3.b. | have received one or more doses, but | am not yet considered fully vaccinated (in accordance with the definition of fully vaccinated above).

| | 3.c. | have submitted proof of vaccination to my supervisor.

“ Proof of vaccination includes a copy of the record of immunization from a health care pravider or pharmacy. a copy of the COVID-19 Vaccination
Record Card, a copy of medical records docurnenting the vaccination, a copy of immunization records from a public health or state immunization
information system, or e copy of any other official documentation. Employees may provide a digital copy of such records. including, for example, a
digital photograph, scanned image, or PDF of such a record that is clear and legible.

[ ] 3.d. | have not received any vaccination doses.
| 3.¢. | have submitted a request for an exemption from vaccination and a decision is still pending.

[ - | 3.f. | have an approved exemption from vaccination.

DD FORM 3175, OCT 2021 CUI (when filled in) ae by fea Page 1 of 2

CUI Category HLTH PRYCY, OPSEC
LDC: DL(DoD Only)

17
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CUI (when filled in)

' 4.a, VACCINE MANUFACTURER(S) OR VACCINE PRODUCT NAME(S):
Pfizer-BioNTech/Comimaty

Moderna
| AstraZeneca/Oxford
[_] Johnson and Johnson (J&J)/Janssen

Novavax

[.

Other U.S. Food and Drug Administration licensed or authorized
World Health Organization Emergency Use listed vaccine or US. site
clinical trial vaccine (provide name):

4. EMPLOYEE VACCINE INFORMATION (Employees checking block 3.a should skip block 4 and go to block 5):

4.b. DATE OF FIRST DOSE:

4.c, DATE OF SECOND DOSE (if two-dose vaccine):

4.d. DATE FULLY VACCINATED:

5. CERTIFICATION/KNOWLEDGE OF POSSIBLE ACTIONS FOR FALSE STATEMENTS

O

temoval from my position.

| certify that the information | have provided on this form and the proof of vaccination documentation | have submitted is true and correct.
| understand that a knowing and willful false statement on this form can be punished by fine or imprisonment or both (18 U.S.C. 1001). | understand
that making a false statement on this form could result in additional administrative action including an adverse personnel action up to and including

6. CIVILIAN EMPLOYEE SIGNATURE:
=

7. DATE:

SECTION B. To be completed by the supervisor of the DoD civilian employee completing section A (or an authorized human resources official)

8. SUPERVISOR PROOF OF VACCINATION REVIEW
EL] 8.a. Proof of vaccination nat received

TD 8.b. Proof of vaccination received and under review.

| 8.¢. Proof of ination ived and reviewed.

9. STATUS OF VACCINATION - EXEMPTION REVIEW

| 9.a. Exemption request received and pending disposition.
| 9.b. Exemption request received and approved.

| 9.c, Exemption request received and denied.

C 9.d. Exemption request not received.

10, SUPERVISOR / AUTHORIZED HR OFFICIAL NAME (Last, First, Mi):

DoD ID NUMBER:

11, SUPERVISOR / AUTHORIZED HR OFFICIAL

12. SUPERVISOR / AUTHORIZED HR OFFICIAL SIGNATURE:
=

13. DATE:

DD FORM 3175, OCT 2021
PREVIOUS EDITION IS OBSOLETE,

18

CUI (when filled in)

Page 2 of 2
38a

ATTACHMENT 4
DD Form 3150 — “Contractor Personnel and Visitor Certification of Vaccination”
CUI (when filled in)

CONTRACTOR PERSONNEL AND VISITOR CERTIFICATION OF VACCINATION Fepcclalg cee te

AGENCY DISCLOSURE NOTICE
The public reporting burden for this collection of information is estimated to average 2 minutes per response, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments
regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to the Department of Defense,
Washington Headquarters Services, at whs.mc-alex,esd.mbx.dd-dod-informationcollections@mail. mil. Respondents should be aware that notwithstanding any
other provision of law, no person shall be subject to any penalty for failing to comply with a collection of information if it does not display a currently valid OMB
control number.

PRIVACY ACT STATEMENT

Authority: DoD is authorized to collect the information on this form pursuant to Executive Order (E.0.) 14042, Ensuring Adequate COVID Safety Protocols for
Federal Contractors; E.O. 13991, Protecting the Federal Workforce and Requiring Mask-Wearing; and E.O. 12196, Occupational Safety and Health Program for
Federal Employees; as well as 10 U.S.C. 113, 10 U.S.C, 136, 10 U.S.C. 7013, 10 U.S.C, 8013, 10 U.S.C, 9013, 10 U.S.C. 2872, 5 U.S.C. chapter 79, and DoD
Instruction 6200.03.

Principal Purpose: This information is being collected to implement Coronavirus Disease 2019 (COVID-19) workplace safety plans, including DoD's COWID-19
testing programs, and to ensure the safety and protection of the DoD workforce, workplace, and other DoD facilities and envirenments, consistent with the
above-referenced authorities, the COVID-19 Workplace Safety: Agency Model Safety Principles established by the Safer Federal Workforce Task Force, and
guidance from the Centers for Disease Control and Prevention and the Occupational Safety and Health Administration

Routine Use(s): While the information requested on this form is intended to be used primarily for internal purposes, in certain circumstances it may be
necessary to disclose this information externally, for example to disclose information to: a person, organization, or governmental entity as necessary and
relevant to notify them of, respond to, or guard against a public health emergency or other similar crisis, including to comply with laws governing the reporting of
communicable disease or other laws conceming health and safety in the work environment: adjudicative or administrative bodies or officials when the records
are relevant and necessary to an adjudicative or administrative proceeding; contractors, grantees, experts, consultants, students, and others as necessary to
perform their duties for the Federal government; agencies, courts, and persons as necessary and relevant in the course of litigation, and as necessary and in
accordance with requirements for law enforcement; or to a person authorized to act on your behalf. A complete list of routine uses may be found in the
applicable System of Records Notice (SORN) associated with the collection of this information from contractor personnel and DoD visitors: DPR 39 DoD, DoD
Personnel Accountability and Assessment System of Records, 85 Fed. Reg. 17047 (Mar. 26, 2020) (also available at https:/dpcid. defense gov/Portals/49/
Decuments/Privacy/SORNs/OSDJS/DPR-39-DoD. pdf).

Consequences of Failure to Provide Informatian: Providing this information is voluntary However, if you fail to provide this information, you will be treated as
not fully vaccinated for purposes of implementing safety measures, including subject to COVID-19 screening testing and/or denied access to DoD facilities.
Failure to provide such information may also hinder DoD's ability to implement COVID-19 workplace safety plans, thereby increasing the health or safety risk to
DoD-affiliated personnel and DoD facilities.

INSTRUCTIONS: This form should be completed by DoD contractor personnel and official visitors in accordance with current DoD Force Health Protection
Guidance. DoD civilian employees should not complete this form

1. NAME (Last, First, Ml): 2. DoD ID NUMBER:

3. PLEASE CHECK THE BOX BELOW THAT COINCIDES WITH YOUR COMID-19 VACCINATION STATUS :

L] lam fully vaccinated,

Individuals are considered “fully vaccinated” two weeks after completing the second dose of a two-dose COVID-19 vaccine or two weeks after
receiving a single dose of a one-dose vaccine. Accepted COVID-19 vaccines are those which have received a license or emergency use
authorization from the U.S. Food and Drug Administration and those COVID-19 vaccines on the World Health Organization Emergency Use Listing
“Fully vaccinated” also includes circumstances in which the individual was a participant in a U.S. site clinical trial and has received all recommended
doses

| am not yet fully vaccinated. | received only one dose of an accepted two-dose COVID-19 vaccine, or | received my final dose of an accepted COVID-19

vaccine less than two weeks ago.

[| | have not been vaccinated,

| | decline to respond.

Individuals who choose not to complete the form will be assumed to be not fully vaccinated for purposes of application of the safety protocols. If you are not
vaccinated due to medical or religious reasons, please check either “I have not been vaccinated” or “I decline to respond.” Note that if you have already
received one dose of a vaccine, but are not yet fully vaccinated, or if you received your final dose less than two weeks ago, then you will be treated as not fully
vaccinated until you are at least two weeks past your final dose and resubmit your vaccination information

LC] | certify that the information provided in this form is accurate and true to the best of my knowledge.

| understand that a knowing and willful false statement on this form can be punished by fine or imprisonment or both (18 U.S.C. 1001). Checking “! decline to
respond” does not constitute a false statement.

4, DATE (YYYYMMDD) | 5. SIGNATURE (Full Name)
DD FORM 3150, OCT 2021 CUI (when filled in) eoreeeereoaee Page 1 of 1

CUI Category: HLTH: PRVCY; OPSEC
LDC: DL(DoD Only)

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ATTACHMENT 5
DD Form 3176 — “Request for a Medical Exemption or Delay to the COVID-19 Vaccination
Requirement”

CUI (when filled in)

REQUEST FOR A MEDICAL EXEMPTION OR DELAY OMB No, 0704-0619
TO THE COVID-19 VACCINATION REQUIREMENT Exp, 20220450

The public reporting burden for this collection of information is estimated to average 5 minutes per response, including the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and leting and revi ig the of info ion. Send regarding this burden estimate or any other aspect of
this fl of i iggestions for reducing the burden, to the ‘Department of Defense, Washington Headquarters Services, at whs.mc-alex.esd.mbx.dd-dod-

llections@mail mil. R d should be aware that i ding any other provision of law, no person shall be subject ta any penalty for failing to comply with a
collection of information if it does not display a currently valid OMB control number.

PRIVACY ACT STATEMENT

Authority: DoD is authorized to collect the information on this form pa to 29U.S. c 794, 42 U. S.C. Chapter 2, Subch. Vi; Executive Order (E ©.) 14043, Requiring Coronavirus
Disease 2019 Vaccination for Federal Employees; £.0. 13163, li the Op; for with Di to be Employed in the Federal Government; E.0. 13164,
Requiring Federal Agencies to Establish Procedures to Facilitate the Provision of Reasonable Accommodation; 29 CFR 1614.203, Rehabilitation Act; DoD Directive 1020.1.
Nondserimination on the Basis of Handicap in Programs and Activities Assisted or C. by the Di of Defense: as well as 10 U.S.C. 113, 10U SC, 136, 10U.S.C. 7013,
10U.S.C. 8013, 10 U.S.C. 90143, 10 U.S.C. 2672, 5 U.S.C. chapter 79, and DoD Instruction 6200.03

Principal Purpose: The information on this form is being collected so that DoD may determine whether te grant your request for a medical exemption from the COVID-19 vaccination
requirement for federal employees, pursuant to Executive Order 14043 and in furtherance of COVID-19 workplace safety plans

Routine Use{s): While the information requested on this form is intended to be used primarily for internal in certain cit it may be y to disclose this
information iy ‘example, i of medical ition or history ii gi Officials for the purpose of conducting an investigation into DoD's

i with the R i Act of 1973; disci of medical dition or history i ion to first aid and safely personnel in the event an employee's medical condition might
require g or special p ; to Federal agencie iti ipating in the DoD Comp ‘Electronic Program (CAP) to permit the agency to
carry out its responsibilities under the program; A complete. list of routine uses may be found i in the applicable System of Records Notice (SORN) associated with the collection of this
information: DoD 0007, Defense and A T t Records, 86 Fed Reg. 38692 (July. 22, 2010) (available at
Consequences of Fallure to Provide iding this i ion is voluntary and use of this form i: is optional Failure ta provide the information fequasted on this form
may impact DoD's ability to evaluate or act upon a request fora a medical axamption from the COVID-19 a Any i Pp ion to the Federal
Government may result in legal cor ion or removal from Federal Service.

instructions: Part 1 isto be completed by DoD civilian employees. Part 2 is to be completed by a licensed health care provider. Provide narrative responses
where applicable (Blocks 8-10, 15-17). If additional space is needed, proceed on the appropriate continuation block (Block 11 or 20) by annotating the Section
and Line number and continue your narrative response. Signing this form constitutes a declaration that the information you provide is, to the best of your
knowledge and ability, true and correct. Any intentional misrepresentation to the Federal Government may result in legal consequences, including removal from
Federal Service

PART 1. TO BE COMPLETED BY THE DOD CIVILIAN EMPLOYEE

1. Employee Name (Last First, Middle initia) 2. DoD ID Number
3. Office Symbol 4, Date of Request (YYYYMMDD)
5.PasitlonTitle Te SupervisorName [7 Supervisor Phone Number =

8. Please provide a descriptian of the medical condition or circumstance that is the basis for the request for a medical exemption from the COVID-19
vaccination requirement.

9. Please provide an 1 of why the medical condition or circumstance prevents you from belng vaccinated.

10. Please provide any additional Information, that addresses your particular medical condition or circumstance, which may be helpful In resolving
your request for a medical exemption or delay from the COVID-19 vaccination requirement. If you have medical documentation (in addition to
Part 2 of thls Form) that addresses your particular medical condition or circumstance you may submit the documentation to your supervisor
along with thts form.

“DD FORM 3176, OCT 2021

_
. Controfled by: OUSD(P&R} Page 1 of 2
cu n filled
PREISUS COIION IS OUSSTELE | (whe in) CUI Calegory: HLTH, PRVCY, OPSEC

LDC: DL@oD Only)
POC: dodhra.me-alex.dhra-hq.mbx forms@mall mil

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CUI (when filled in)

11. Continuation

I declare to the best of my knowledge and ability that the foregoing is true and correct.
12. Date (YYY YMMDD) 13. Signature

PART 2. COMPLETED BY EMPLOYEE'S HEALTH CARE PROVIDER

14. Employee Name

MEDICAL CERTIFICATION FOR COVID-19 VACCINE EXEMPTION OR DELAY

Dear Health Care Provider:

The Department of Defense requires its employees to be fully vaccinated against COVID-19, pursuant to Executive Order of the President of the United States
As indicated in Part 1, the individual named above is seeking a medical exemption to the requirement for COVID-19 vaccination or a delay because of a
temporary condition or medical circumstance Please complete this form to assist the Department in its review process.

Please provide at least the following information, where applicable, and use the continuation block as needed:

15. Please identify any contraindication(s) ar precaution(s) for COVID-19 vaccination that are applicable to the individual, and for each
contraindication or precaution, indicate:

(@) whether it is recognized by the U.S. Centers for Disease Control and Prevention pursuant to its guidance: and

(b) whether it is listed in the package insert or Emergency Use Authorization fact sheet for each of the COVID-19 vaccines authorized or approved for use in

the United States.

16. Please provide a statement detailing how the indlvidual’s condition and medical clrcumstances are such that COVID-19 vacclnation Is not
considered safe. Please explain the specific nature of the medical condition or circumstance that contralndicates Immuntzatlon wth a COVID-19
vaccine or might increase the risk for a serious adverse reaction.

17. Please provide any other medical information that would limit the employee from receiving any COVID-19 vaccine.

18. The condition described above |s: 19. If the employee Is seeking a delay due to a temporary medical
condition or circumstance, please Indicate when the employee would
be able to safely receive a COVID-19 vaccination - provide detalls If

[_] Temporary
limited to specific COVID-19 vaccine(s) ar type(s) of COVID-19 vaccine.

20. Continuation

21. Health Care Provider Name/Title

22. Date (YYYYMMDD) 23. Medical Provider Signature
DD FORM 3176, OCT 2021 CUI (when filled in) Page 2 of 2

PREVIOUS EDITION IS OBSOLETE

21
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ATTACHMENT 6
DD Form 3177 — “Request for a Religious Exemption to the COVID-19 Vaccination
Requirement”

CUI (when filled in)

REQUEST FOR A RELIGIOUS EXEMPTION TO THE COVID-19 VACCINATION REQUIREMENT

PRIVACY ACT STATEMENT

Authority: DoD is authorized to collect the i ion on this form p to Executive Order (E.0.) 14043, Requiring Coronavirus Disease 2019 Vaccination for Federal
Employees; 42 U.S.C. Chapter 21, Subchapter VI: 42 U.S.C. Chapter 21B: as well as 10 U.S.C, 113, 10 U.S.C. 136, 10 U.S.C, 7013, 10 U.S.C. 8013, 10U.S.C. 9013, 10 U.S.C. 2672,
5 U.S.C. chapter 79, and DoD Instruction 6200.03.

Principal Purpose: The information on this form is being collected so that DoD may determine whether to grant your request for a religious exemption from the COVID-19 vaccination
requirement for federal employees, pursuant to Executive Order 14043 and in furtherance of COVID-19 workplace safety plans. Consi: with the Religit Freedom Act
of 1993, 42 U.S.C, Chapter 21B, and Title Vil of the Civil Rights Act, 42 U.S.C. Chapter 21, Subchapter VI, individuals seeking a religious exemption from the vaccination requirement
will submit to DoD supporting information about their religious beliefs or practices in order for DoD to evaluate the exemption request

Routine Use(s): While the information requested on this form is intended to be used primarily for internal purp , in certain ci it may be y to disclose this
information externally, For example to disclose information to: a person, organization, or governmental entity as necessary and relavant to notify them of, raspond to, or guard against a
public health emergency or shea ‘similar ensis, including to comply with laws governing the reporting of communicable disease or other laws concerning health and safely in the work
ive bodies or officials when the records are relevant and y lo an adj or istrative

experts, consultants, ana and others as necessary to perform their dutias for the Federal government; agencies, courts, and persons as necessary and relevant in the course of
litigation, and as necessary and in accordance with requirements for law enforcement; or to a person aut ore to act on n your behalf. A a a of routine uses 5 may be found in
the applicable System of Records Notices (SORN) associated with the collection of this information: DPR
Records, 95 Fed, Reg, 17047 (Mar. 26, 2020) (also available at https:/dpcld. defense. gov/F {D

Consequences of Failure to Provide Information: Providing this information is voluntary and use of this form is optional. Failure to provide the information requested on this form
may impact DoD's ability to evaluate or act upon a request for a religious exemption from the COVID-19 vaccination requirement. Any intentional misrepresentation to the Federal
Government may result in legal consequences, in¢luding removal fram Federal Service

Instructions: To be completed by DoD civitian employees, Provide narrative responses where applicable (Blocks 8-11, 12.b, 12.c, 13). If additional space is
needed, proceed on the continuation block (Block 14) by annotating the Section and Line number and continue your narrative response. Signing this form
constitutes a declaration that the information you provide is, to the best of your knowledge and ability, true and correct. Any intentional misrepresentation to the
Federal Government may result in legal consequences, including removal from Federal Service

1. Employee Nama (Last First, Middle initia) 2. DoD ID Number
3. Office Symbol 7 = ‘4. Date of Request (YYYYMMDD) =
5. Positlonétitle — 6. Supervisor Name 7. Supervisor Phone Number 7

8. Please describe the religious bellef, practice, or observance that Is the bas!s for your request for a rellglous exemption from the COVID-19
vaccination requirement.

9. Please describe when and howyou came to hold the religlous bellef or abserve the rellglous practice.

10. Please describe haw you have demonstrated the rellglous bellef or observed the religlous practice In the past.

11. Ploase explain how the COVID-19 vaccines conflict with your religious belief, practice, or observance.

DD FORM 3177, OCT 2021 ; Controlled by: OUSDIPER) Page 1 of2
PREVIOUS EDITION IS OBSOLETE CUI (when filled in) CUI Category: HLTH. PRVCY. OPSEC

POC: dodhra me-alex ohra-hg.mbx forms@mail,mit

22
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CUI (when filled in)

12.a Have you previously ralsed an objection to a vaccination, medical treatment, or medicine based on a rellglous bellef or practice.

12.b If Yes, please provide a description of the clreumstances, timing, and resolution of the matter.

12.c If No, please provide an explanation as to why your objection Is Ilmited to the particular COVID-19 vaccines.

from the COVID-19 vaccination

t fora )

13. Please provide any adaltlonal Information that may be helpful In resolving your req
requirement. You may submit additional documentation in support of this request to your supervisor along with this form.

14. Continuation

i declare to the best of my knowledge and ability that the foregoing is true and correct.
15. Date (YYYYMMDD) 16, Signature

Page 2 of 2

DD FORM 3177, OCT 2021 CUI (when filled in)
PREVIOUS EDITION IS OBSOLETE

23
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ATTACHMENT 7
COVID-19 Screening Testing Requirements

1. To establish COVID-19 screening testing for individuals for whom screening testing is
required, DoD Components will:

a. Execute the screening testing requirement with COVID-19 self-collection kits or self-
tests at least weekly (depending on the type of test kit used) that should be performed
primarily onsite at the installation or facility with proper supervision and
documentation of testing results. If onsite COVID-19 screening testing is not
feasible, as an alternative self-testing may be performed at home or in other locations
(Note: these COVID-19 self-tests do not require a health care provider’s clinical care
order and are, therefore, considered an over-the-counter test and do not require
medical support to complete). Screening testing will use those tests authorized by
Attachment 8; and

b. Procure and provide these COVID-19 self-tests and establish guidance for where and
how these tests will be distributed and conducted and how results are to be reported.

i. DoD civilian employees are responsible for providing documentation of
negative COVID-19 test results, upon receipt, to the appropriate supervisor.
For purposes of screening testing requirements, “supervisor” includes
authorized human resources officials. DoD civilian employees may not be
required to use their own personal equipment for the purpose of documenting
test results; offsite tests may not be used if there is not a means to document
results using government equipment. The supervisor is responsible for
maintaining any COVID-19 test results provided by DoD civilian employees
in accordance with the privacy protection measures in Attachment 9.

it. DoD contractor personnel with CRA will maintain their most recent COVID-
19 test result and show such results to authorized DoD personnel upon
request.

2. After COVID-19 screening testing procedures are established, the personnel identified in this
memorandum as subject to screening testing are required to have a COVID-19 screening test
using a test authorized by Attachment 8, and receive a negative COVID-19 screening test
result for entry into a DoD facility. If the COVID-19 screening test is administered offsite,
the negative result must be from a test performed within the prior 72 hours. If a COVID-19
screening test is administered onsite, the test will be administered before DoD civilian
employees and contractor personnel go to their work areas. In accordance with reference (1)
and CDC guidance, personnel who have recovered from a recent COVID infection and who
remain asymptomatic are exempted from regular screening testing for 90 days following their
documented date of recovery. Documented proof of this recovery shall be provided upon
request.

3. DoD civilian employees and DoD contractor personnel with CRA who have positive
COVID-19 screening tests will be required to remain away from the workplace in accordance

24
44a

with references (1) and (m). DoD civilian employees and DoD contractor personnel with
CRA with positive COVID-19 screening tests will be offered, but not required to take,
confirmatory laboratory-based molecular (i.e., polymerase chain reaction) testing paid for by
the relevant DoD Component. Contact tracing and mitigation measures will be conducted in
accordance with references (1) and (m). If the confirmatory test is negative, the individual is
not considered to be COVID-19 positive and will be allowed into the workplace.

For DoD civilian employees, COVID-19 screening testing is expected to take no more than
one hour of regular duty time, per test, to complete required testing as directed by the DoD
Component. Laboratory-based confirmatory COVID-19 testing for initial positive screening
test results is expected to take no more than two hours of duty time. This includes time for
travel to the testing site, time to complete testing, and time to return to work. Commanders
and supervisors will monitor duty time usage and keep duty time used for testing within these
parameters to the extent possible.

DoD Components may bar DoD civilian employees who refuse required screening testing
from their worksites on the installation or facility to protect the safety of others, including
while any progressive disciplinary actions are pending. While barred from their worksites on
the installation or facility, such DoD civilian employees may be required to telework, as
appropriate.

25
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ATTACHMENT 8
Requirements for Obtaining Self-Collection Kits and Self-Tests

COVID-19 self-tests must have Instructions for Use and FDA approval, 510(K)
premarket clearance or have an FDA Emergency Use Authorization, and will be made available
through the Defense Logistics Agency. DoD Components are responsible for funding required
COVID-19 screening tests.

Funding for COVID-19 testing, if self-collection kits or self-tests are not available:

a. Each DoD Component will reimburse Service members and DoD civilian employees
for COVID-19 screening tests that require payment for purposes of meeting the
screening testing requirement (e.g., if the screening test is not available through the
DoD Component and must be administered by a facility who charges for the test).

b. For COVID-19 testing of DoD contractor personnel with CRA, DoD Components
will offer, if available, COVID-19 testing similar to that offered to DoD civilian
employees at the DoD Component’s expense and at no cost to the contractor
personnel or the contractor.

26
46a

ATTACHMENT 9
Privacy Requirements

Under this guidance memorandum, the DoD may collect and maintain sensitive and
private information about individuals, including medical information. Consistent with the
Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb et seq., and Title VII of the
Civil Rights Act, 42 U.S.C. § 2000e et seq., individuals seeking a religious exemption from the
vaccination requirement will submit to DoD supporting information about their religious beliefs
and practices in order for DoD to evaluate the exemption request. Information collected from
individuals under this guidance, including vaccination information, test results, and medical or
religious information supporting vaccine exemption requests, will be treated in accordance with
applicable laws and policies on privacy, including the Privacy Act of 1974, 5 U.S.C. § 552a, and
Department of Defense Instruction (DoDI) 5400.11, “DoD Privacy and Civil Liberties
Programs,” January 29, 2019 (reference (n)), the Rehabilitation Act of 1973, as amended
(“Rehabilitation Act’), 29 U.S.C. § 791 et seq., and 5 CFR part 293, subpart E. While such
information may be sensitive and is to be safeguarded, it is not covered by the Health Insurance
Portability and Accountability Act (HIPAA) regulations found at 45 CFR parts 160, 162, and
164, and as implemented in DoDI 6025.18, “Health Insurance Portability and Accountability Act
(HIPAA) Privacy Rule Compliance in DoD Health Care Programs,” and DoD Manual 6025.18,
“Implementation of the Health Insurance Portability and Accountability Act (HIPAA) Privacy
Rule in DOD Health Care Programs.”

Information gathered under this guidance may be shared with immediate supervisors,
authorized human resources officials, designated decision makers, and, in appropriate cases,
subject matter experts, who must access the information to implement the guidance. DoD
Components are advised to consult their Component Privacy Officer and servicing legal office if
there is a need to share medical or religious information collected under this guidance with DoD
personnel beyond what this guidance permits or with individuals outside of DoD. Religious
information will be accessible only to those persons who have a role in carrying out the
procedures outlined in this memorandum. Medical information obtained from DoD civilian
employees, including vaccination status, will be accessible only to immediate supervisors,
authorized human resources officials, and, for exemption requests, designated decision makers
and subject matter experts, who must access the information to implement the guidance in this
memorandum. The Rehabilitation Act’s requirements on confidentiality of medical information
apply whether or not a DoD civilian employee has a disability.

DoD personnel will use appropriate safeguards in handling and storing DoD civilian
employee medical information, including a DoD civilian employee’s proof of vaccination, the
DD Form 3175, COVID-19 test results, and exemption requests. Appropriate safeguards may
include encrypting emails and electronic files, and role-based access to electronic storage
environments where this information is maintained. In the event the information is maintained in
paper form, supervisors and other authorized DoD personnel must ensure DoD civilian employee
medical information remains confidential and is maintained separately from other personnel files
(e.g., stored in a separate, sealed envelope marked as confidential DoD civilian employee
medical information and maintained in locked file cabinets or a secured room). DoD
Components are advised to refer to applicable internal guidance on the handling, storage, and
disposition of DoD civilian employee medical records, and to consult their Component Privacy
Officer as needed for further guidance.

27
47a

ATTACHMENT 10
References

(a) Under Secretary of Defense for Personnel and Readiness Memorandum, “Force Health
Protection Guidance (Supplement 23) Revision 2 — Department of Defense Guidance for
Coronavirus Disease 2019 Vaccination Attestation, Screening Testing, and Vaccination
Verification,” October 29, 2021 (hereby rescinded)

(b) Safer Federal Workforce Task Force, “COVID-19 Workplace Safety: Agency Model Safety
Principles,” September 13, 2021

(c) Executive Order 14043, “Requiring Coronavirus Disease 2019 Vaccination for Federal
Employees,” September 9, 2021

(d) Deputy Secretary of Defense Memorandum, “Mandatory Coronavirus Disease 2019
Vaccination of DoD Civilian Employees,” October 1, 2021

(e) Secretary of Defense Memorandum, “Mandatory Coronavirus Disease 2019 Vaccination of
Department of Defense Service Members,” August 24, 2021

(f) United States Office of Personnel Management Memorandum, “Guidance on Applying
Coronavirus Disease 2019 Vaccination Requirements to New Hires — Executive Order
14043,” October 1, 2021

(g) United States Office of Personnel Management Memorandum, “Guidance on Enforcing
Coronavirus Disease 2019 Vaccination Requirement for Federal Employees — Executive
Order 14043,” October 1, 2021

(h) Department of Defense Directive 5100.03, “Support of the Headquarters of Combatant and
Subordinate Unified Command” February 9, 2011, Incorporating Change 1,

September 7, 2017

(i) Safer Federal Workforce Task Force, “COVID-19 Workplace Safety: Guidance for Federal
Contractors and Subcontractors,” September 24, 2021

(j) Principal Director for Defense Pricing and Contracting Memorandum, “Class Deviation
2021-00009—Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors,
October 1, 2021

(k) Executive Order 14042, “Ensuring Adequate COVID Safety Protocols for Federal
Contractors,” September 9, 2021

(1) Acting Under Secretary of Defense for Personnel and Readiness Memorandum, “Force
Health Protection Guidance (Supplement 18) — Department of Defense Guidance for
Protecting All Personnel in Department of Defense Workplaces During the Coronavirus
Disease 2019 Pandemic,” March 17, 2021

(m) Acting Under Secretary of Defense for Personnel and Readiness Memorandum, “Force
Health Protection Guidance (Supplement 15) Revision 2 — Department of Defense Guidance
for Coronavirus Disease 2019 Laboratory Testing Services,” July 2, 2021

(n) Department of Defense Instruction 5400.11, “DoD Privacy and Civil Liberties Programs,”
January 29, 2019

28
48a

UNDER SECRETARY OF DEFENSE
4000 DEFENSE PENTAGON
WASHINGTON, D.C. 20301-4000

MAR - 1 2022

PERSONNEL AND
READINESS

MEMORANDUM FOR SENIOR PENTAGON LEADERSHIP .
COMMANDERS OF THE COMBATANT COMMANDS
DEFENSE AGENCY AND DOD FIELD ACTIVITY DIRECTORS

SUBJECT: Updated Guidance for Mask and Screening Testing for all Department of Defense
Installations and Other Facilities

In accordance with the updated guidance released by the Safer Federal Workforce Task
Force on February 28, 2022, beginning immediately, the following masking and screening
testing guidance requirements based on the Centers for Disease Control and Prevention (CDC)
coronavirus disease 2019 (COVID-19) Community Levels! will apply to all Department of
Defense (DoD) installations and other facilities owned, leased, or otherwise controlled by DoD:

e When the CDC COVID-19 Community Level is high in the county where a DoD
installation or facility is located”, indoor mask-wearing is required for all Service
members, DoD civilian employees, onsite DoD contractor personnel (collectively,
“DoD personnel”), and visitors, regardless of vaccination status. The screening
testing program required by reference (a) shall be utilized in that installation or
facility.

e When the CDC COVID-19 Community Level is medium in the county where a DoD
installation or facility is located, indoor mask-wearing is not required for DoD
personnel or visitors. The screening testing program required by reference (a) shall
be utilized in that installation or facility.

e When the CDC COVID-19 Community Level is low in the county where a DoD
installation or facility is located, indoor mask-wearing is not required for DoD
personnel or visitors. The screening testing program contained in reference (a) is not
required for that installation or facility.

e Individuals may choose to wear a mask regardless of the COVID-19 Community
Level.

' Community levels may be found at: https://www.cdc.gov/coronavirus/2019-ncov/your-health/covid-by-
county.html. Find community levels by “State or Territory” and then by “County or Metro Area.” Jurisdictions
which are not counties, such as the District of Columbia, also are listed under “County or Metro Area.” Definitions
of low, medium, and high risk may be found at: https://www.cde.gov/coronavirus/2019-ncov/science/community-
levels.html.

> The Pentagon is located in Arlington County, Virginia.
49a

Regardless of the CDC COVID-19 Community Level, DoD force health protection
guidance for workplace access and mask wearing for DoD personnel with symptoms,
a positive test, or exposure to someone with COVID-19 remains in effect.

When mask wearing is required, any previously-approved exceptions to the masking
requirement remain in effect.

DoD installations, other facilities, and worksites shall, as soon as possible, post signs
and post information on their websites clarifying what masking requirements apply
on each installation and at each facility.

All other force health protection guidance remains in effect, including guidance
regarding workplace access, occupancy levels, physical distancing, travel, and
meetings. Individual must follow more rigorous workplace mask mandates when
commanders and supervisors determine that it is required to protect health and safety
in the workplace, such as mask wearing by health care workers.

Installations outside the U.S. should consult country-level data for their Host Nations
(HN) if local community-level data is unavailable. Case-rate information is available
from the CDC at https://covid.cde.gov/covid-data-tracker/#global-counts-rates
and the World Health Organization at https://covid19.who.int/. Other sources of
data include HN public health authorities, academic institutions, and the World
Health Organization.

DoD Components will comply with any applicable labor relations obligations when
implementing this policy.

References (b) and (c) (Attachment 1) are rescinded.

Please direct any questions or comments to the following email address:

Gilbert R. Cisneros, Jr.

Attachment:

As stated
50a

ATTACHMENT 1
References

(a) Under Secretary of Defense for Personnel and Readiness Memorandum, “Force Health
Protection Guidance (Supplement 23) Revision 3 — Department of Defense Guidance for
Coronavirus Disease 2019 Vaccination Attestation, Screening Testing, and Vaccination
Verification,” dated December 20, 2021

(b) Under Secretary of Defense for Personnel and Readiness Memorandum, “Force Health
Protection Guidance (Supplement 17) Revision 1 — Department of Defense Guidance for
the Use of Masks, Personal Protective Equipment, and Non-Pharmaceutical Interventions
During the Coronavirus Disease 2019 Pandemic,” dated June 22, 2021 (hereby rescinded)

(c) Deputy Secretary of Defense Memorandum, “Updated Mask Guidance for all DoD
Installations and Other Facilities,” dated July 28, 2021 (hereby rescinded)
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page5of160 PagelD 4441

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

U.S. NAVY SEALs 1-3, on behalf of
themselves and all others similarly situated;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1, on behalf of
himself and all others similarly situated; U.S.
NAVY SEALS 4-26; U.S. NAVY SPECIAL
WARFARE COMBATANT CRAFT
CREWMEN 1-5; and U.S. NAVY DIVERS
1-3,

Plaintiffs, Case No. 4:21-cv-01236-O
v.

LLOYD J. AUSTIN, III, in his official
capacity as United States Secretary of Defense;
UNITED STATES DEPARTMENT OF
DEFENSE; CARLOS DEL TORO, in his
official capacity as United States Secretary of
the Navy,

Defendants.

DECLARATION OF COMMANDER ROBERT A. GREEN, JR., USN

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury as follows:

1. I am over the age of eighteen and am competent to make this declaration.

2. I have served in the United States Navy since entering the Naval Academy in the
summer of 2003. I have had an exemplary career marked by sustained superior performance in
challenging billets from a diverse variety of Navy warfighting communities and command
echelons. I spent five years as a reserve officer and government civilian (GS-13) within the
Navy’s Acquisitions Workforce before reaffiliating back to permanent active duty in 2019. I

have completed highly technical postgraduate education programs at multiple academic
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Case 4:21-cv-01236-O0 Document 134 Filed 02/28/22 Page6of160 PagelD 4442

institutions and have leveraged that education to help initiate data analytics efforts at several
major commands. In my promotion to the rank of Commander (O-5), the Navy saw fit to reward
my exemplary performance with a merit reorder, essentially an early promotion based on merit.
I was the Executive Officer (XO), or second-in-command, of Maritime Expeditionary Security
Squadron EIGHT (MSRON-8). I am currently assigned to the staff of Maritime Expeditionary
Security Group TWO (MESG-2).

3. I have sincere religious beliefs that preclude me from receiving the COVID-19
vaccination as ordered by my superiors in the Navy. I submitted a religious accommodation
request on September 15, 2021, requesting that the Navy waive the requirement for me to
become vaccination against the COVID-19 virus. I submitted an addendum to that request on
October 19, 2021.

4. The Deputy Chief of Naval Operations (DCNO) (N1), Vice Admiral John B.
Nowell, signed and dated a disapproval of my request on November 23, 2021. A copy of my
denial letter is attached to this declaration as part of Exhibit A. I have subsequently submitted an
appeal of Vice Admiral Nowell’s disapproval to Admiral Michael M. Gilday, the Chief of Naval
Operations (CNO). To my knowledge that appeal is still pending and has not been adjudicated.

5. On December 23, 2021, I filed a complaint under Article 1150, U.S. Navy
Regulations, against Vice Admiral Nowell, for his violations of law and military regulations. In
it I clearly explained that my complaint was a protected communication under the Military
Whistleblower Protection Act, 10 U.S.C. § 1034. The basis for the complaint is that (1) the
disapproval of my religious accommodation request was pre-determined, (2) the letter Vice
Admiral Nowell sent disapproving my religious accommodation request was a form template,

and (3) the case-by-case review of my request required by law and regulation was a fraud
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 7 of160 PagelD 4443

designed to have the appearance of following regulation but was actually conducted after my
disapproval letter was written, all DCNO (N1) documentation supporting my disapproval was
packaged, and all intermediate routing steps of my religious accommodation request were
completed. A copy of my complaint is attached to this declaration as Exhibit A.

6. In support of my complaint against Vice Admiral Nowell, I attached the Standard
Operating Procedure (SOP) used by Vice Admiral Nowell and his staff to deny religious
accommodation requests, which I was given by a member of Vice Admiral Nowell’s staff. The
SOP demonstrates clear violations of 42 U.S.C. §2000bb-1, DODINST 1300.17, and
BUPERSINST 1730.11A by Vice Admiral Nowell and his staff. A copy of the SOP is attached
to this declaration as part of Exhibit A.

7. Aside from the fact that the person I received the SOP from was a member of the
DCNO’s staff, the metadata in the SOP file demonstrates that it was created by the DCNO’s
office. The file shows that the author of the SOP was “Neuer, Richard A LTJG USN
COMNAVDIST WASH DC (USA).” Richard Neuer, now a Lieutenant in the Navy, is a
member of the DCNO N1 staff. In addition, the form denial letter shown in the SOP is nearly
identical to my own denial letter, and nearly identical to all other denial letters I’ve seen that
were given to others seeking religious accommodations, including sailors in circumstances very
different from my own.

8. On Friday, January 7, 2022, four days after this Court issued the preliminary
injunction relying in part on the SOP document attached to my complaint, I was relieved of my
duty as XO of MSRON-8 and assigned to the staff of MESG-2.

9. In an email to the command, my commanding officer stated that I was relieved of

duty “while a vaccine waiver works its way through the system.” I was not relieved because of
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my job performance. My commanding officer specifically stated: “Effective immediately CDR
Green is no longer XO of MSRON EIGHT. He has been reassigned TAD to MESG2 while a
vaccine waiver works its way through the system. CDR Green leaves huge shoes to fill, he was a
professional who did excellent work and his presence and professionalism will be difficult to
replace.” A copy of this email is attached to this declaration as Exhibit B.

10. On January 7, 2022, I sent a memorandum to the members of the House and
Senate Armed Services Committee under the Military Whistleblower Protection Act, 10 U.S.C. §
1034, urging Congress to call for an immediate end of religious discrimination in the military
and urging them hold Navy leaders accountable for violating the constitutional rights of sailors.

The memorandum is attached to this declaration as Exhibit C.

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true
and correct.

Executed on February 26, 2022.

ROBERT A. GREEN, JR.
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 10of160 PagelD 4446

From:
To:
Via:

Subj:

Ref:

Encl:

23 Dec 21
Commander Robert A. Green Jr., USN/1117
Chief of Naval Operations
(1) Commander, Maritime Expeditionary Security Squadron EIGHT
(2) Vice Admiral John B. Nowell
(3) Commander, United States Fleet Forces Command
(4) Commander, Navy Expeditionary Combat Command
(5) Commander, Maritime Expeditionary Security Group TWO

COMPLAINT OF WRONG UNDER ARTICLE 1150, U.S. NAVY REGULATIONS

(a) Article 1150, U.S. Navy Regulations

(b) JAGINST 5800.7G, Chapter III

(c) SECDEF Memo of 24 Aug 2021, Mandatory Coronavirus Disease 2019 Vaccination of
Department of Defense Service Members

(d) SECNAV WASHINGTDON DC 302126Z Aug 21(ALNAV 062/21)

(e) CNO WASHINGTON DC 311913Z Aug 21 (NAVADMIN 190/21)

(f) 42 U.S.C. 2000bb-1

(g) DOD Instruction 1300.17, Religious Liberty in the Military Services

(h) BUPERSINST 1730.11a, Standards and Procedures Governing the Accommodation of
Religious Practices

(1) DCNO (N1) Standard Operating Procedure (SOP), Religious Accommodations SOP Nov 2021
(2) DCNO (N1) Disapproval of Religious Accommodation Through Waiver of Immunization
Requirements, To CDR Robert A Green Jr., 23 Nov 21

1. This complaint of wrong under reference (a) is submitted in compliance with reference (b).

2. Complainant Information:

a. Current Command: Maritime Expeditionary Security Squadron EIGHT
b. Command at time of alleged wrong: Maritime Expeditionary Security Squadron EIGHT
c. PRD: August, 2022

d. Current mailing address and e-mail address:

e. Permanent home address and email address:

robert.a.green! @navy.mil

3. Respondent Information:

a. Rank and Name: Vice Admiral John Nowell, USN

b. Organization: Deputy Chief of Naval Operations (N1)
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 11o0f160 PagelD 4447

4. Complaint:

a. Type of Alleged Wrong: Denial of complainant’s Constitutional rights under the First and Fifth
Amendments through a violation of 42 U.S.C. 2000bb-1, DODINST 1300.17, and
BUPERSINST 1730.11A.

(1) Date alleged wrong discovered: 29 November, 2021

(2) Date written request for redress was submitted to complainant’s commanding officer:
N/A

(3) Date answer to request for redress was received: N/A
(4) Number of calendar days between alleged wrong and submission of complaint: 24 days
(5) Specific, detailed explanation of alleged wrong committed:

On 15 September 2021, I submitted a request to waive COVID-19 immunization requirements due
to my religious beliefs that preclude me from receiving a COVID-19 vaccination. I submitted an addendum
to that request on 19 October 2021. The Deputy Chief of Naval Operations (DCNO)(N1), Vice Admiral
Nowell, signed and dated a disapproval of my request on 23 November 2021.

My religious accommodation request was processed by the OPNAV N131 Religious
Accommodation team. Enclosure (1) is the Standard Operating Procedure (hereafter DCNO(N1) SOP) that
Vice Admiral Nowell and his staff followed to handle the vast increase in COVID-19 related immunization
waiver requests resulting from the various military COVID-19 vaccine orders, references (c) through (e).
The DCNO(N1) SOP instructs OPNAV N131 staffers on the exact steps to take upon receipt of a religious
accommodation request including computer screenshots that demonstrate what lines of text to write and
what buttons to click. The DCNO(N1) SOP is broken down into 6 phases, complete with 50 total steps.
Many of the steps are fairly innocuous such as Phase 0 Step 2 which requires the staffer to “[rJeply all to the
[accommodation request] email and acknowledge receipt of the request with the following response:”
Several of the DCNO(N1) SOP steps, however, are not innocuous and provide clear evidence of violations
of law per 42 U.S.C. 2000bb-1, and regulations per DODINST 1300.17 and BUPERSINST 1730.11A. I
will demonstrate in this complaint that I have been wronged by Vice Admiral Nowell’s violations of law
and regulations through his use of the DCNO(N1) SOP process in denying my request for religious
accommodation. Specifically, I will use the DCNO(N1) SOP to demonstrate 1) that the disapproval of my
religious accommodation request was pre-determined, 2) that the letter Vice Admiral Nowell sent
disapproving my religious accommodation request was a form template, and 3) that the case-by-case review
of my request required by law and regulation was a fraud designed to have the appearance of following
regulation but was actually conducted after my disapproval letter was written, all DCNO(N1)
documentation supporting my disapproval was packaged, and all intermediate routing steps of my religious
accommodation request was completed.

The first 13 steps of the DCNO(N1) SOP are preparation steps in which the OPNAV N131 staffer
verifies that the request has all of the required documents and that those documents are moved to the
appropriate folder on the shared drive. If the religious accommodation request does have all of the proper
documents, then astonishingly, the very first processing step a staffer makes is to add the disapproval
template to the folder and to rename the disapproval template file to include the Last Name, First Name,
and Rank of the religious accommodation requester. This is done in Step 14.
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The very next step, Step 15 on page 7, asks the staffer to open the disapproval template and update
the “TO:” line with the requester’s Name, Rank, and Designator. DCNO(N1) SOP Step 15 also shows a
picture of the disapproval template complete with highlighted portions to indicate what must be replaced
with the requester’s information in order to prepare the disapproval for routing. There is no approval
template mentioned in the SOP. In fact, there is no indication that an approval template has ever been
written. I found it shocking that Vice Admiral Nowell permits a process so riddled with systemic religious
discrimination that my request was not even reviewed before a disapproval letter was added, tailored to
include my name, and only then was routed for review.

The next several steps of the DCNO(N1) SOP direct the OPNAV N131 staffer to prepare the
religious accommodation package for routing within their document routing system. Step 20 lists who must
review the religious accommodation request including BUMED (Rear Admiral Gillingham), Policy and
Strategy (N0975), the Officer Plans and Policy Office, the Special Assistant for Legal Matters, N1 Fleet
Master Chief, Total Force Manpower and Personnel Plans and Policy (N13 Front Office), and finally
Manpower, Personnel, Training, and Education (N1 Front Office). I felt betrayed to know that my religious
accommodation request went to these offices for review with a pre-prepared disapproval letter already
included within the package.

Once routing/review is completed by the above offices, the OPNAV N131 staffer begins to package
groups of religious accommodation requests together for final signature. This is done in Steps 30 through
32. Step 33 directs the OPNAV N131 staffer to update an internal memo from N13 to Vice Admiral
Nowell. This internal memo asks Vice Admiral Nowell to “sign TABs Al through A10, letters
disapproving immunization waiver requests based on sincerely held religious beliefs.” TAB B lists all
supporting documents including the original religious accommodation request from the requester. It is clear
from the DCNO(N1) SOP that all TAB A letters are the same disapproval template letters prepared by the
OPNAV N131 staffers in Step 15 immediately upon receipt of the initial religious accommodation request.

Steps 35-38 list the first time an OPNAV N131 staffer is asked to actually read through the
religious accommodation request and begin to list details from the request in a spreadsheet for Vice
Admiral Nowell’s “review”. There is a note in ALL CAPS which emphasizes the importance of this review
to building the fagade that the religious accommodation requests are receiving a case-by-case examination.
The note states: “THIS IS THE MOST CRITICAL STEP IN THE ENTIRE PROCESS AND THE CNO
AND CNP ARE RELYING ON YOU TO ENSURE THAT YOUR REVIEW IS THOUROUGH AND
ACCURATE. DO NOT RUSH THIS PROCESS AND ENSURE THAT YOU UNDERSTAND BEFORE
MOVING FORWARD.” This step is critical to disguising the systemic religious discrimination within the
DCNO(N1) SOP process because according to reference (h) they are required to review each request “on a
case-by-case basis, giving consideration to the full range of facts and circumstances relevant to the specific
request.” Reference (h) goes on to state that “[r]equests to accommodate religious practices should not be
approved or denied simply because similar requests were approved or denied.” The most significant
problem with the DCNO(N1) SOP is that the case-by-case “review” does not happen until Step 35 in the
process. By this point, my disapproval letter had already been written (Step 15), my religious
accommodation request and related documents had already been returned from the various required
reviewing offices (Steps 16-29), my disapproval and religious accommodation request had already been
packaged within a batch of other similar requests (Steps 30-32), and, finally, an internal memo had already
been drafted from DCNO (N13) to DCNO (N1) requesting that Vice Admiral Nowell disapprove my
religious accommodation request (Step 33). All this occurred prior to the official “review” of my religious
accommodation request required by law and regulation.

After my entire disapproval package was built and then prepared for Vice Admiral Nowell to sign,
the DCNO(N1) SOP Steps 35-38 finally direct the OPNAV N131 staffer to read the entirety of my religious
accommodation request package including my original request, the BUMED Memo, and the Legal Memo.
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They are then directed to add any additional pertinent information from the package and place that
information into a spreadsheet. This spreadsheet is evidence, not of a true case-by-case review of the
religious accommodation request, because the result at this point in the DCNO(N1) SOP process, is a
forgone conclusion. This spreadsheet is evidence instead of the systematic and deliberate attempts taken by
Vice Admiral Nowell and his staff to appear compliant with regulatory requirements while actually
depriving me of my rights to due process under the Fifth Amendment and my rights to freedom of religious
expression under the First Amendment of the Constitution.

In addition to fraudulently attempting to appear legal and in compliance with regulation, it is
plainly clear that the DCNO(N1) SOP process is also designed to streamline the subsequent (and pre-
determined) disapproval upon receipt of a religious accommodation request. The DCNO(N1) SOP,
especially Step 35, makes it clear that the secondary goal (after streamlining the pre-determined
disapproval), is to protect Vice Admiral Nowell from potential legal blowback in the event he is asked for
proof that a case-by-case review was completed for each religious accommodation request. Even though
the DCNO(N1) SOP is blatantly defying requirements under both law and regulation, in my personal
disapproval letter, enclosure (2), Vice Admiral Nowell made the statement that “[a]ll requests for
accommodation of religious practices are assessed on a case-by-case basis.” Vice Admiral Nowell goes on
to state that “[i]n making this decision, I reviewed reference (g) [my religious accommodation request],
including the endorsements from your chain of command, the local chaplain and the advice of Chief,
Bureau of Medicine and Surgery in reference (h).” While the DCNO(N1) SOP cannot prove that Vice
Admiral Nowell is lying in making this last statement, enclosure (1) does prove that any review of my
religious accommodation request that Vice Admiral Nowell may or may not have conducted, had no
bearing on my discriminatory and pre-determined disapproval which he signed on 23 November, 2021.

Vice Admiral Nowell and his staff are ignoring the requirements of both the Religious Freedom
Restoration Act and DODINST 1300.17. The requirements under law, per reference (f), and the
requirements of policy, per reference (g), oblige the Navy to accommodate my religious freedom unless 1)
the military policy, practice, or duty is in furtherance of a compelling governmental interest, and 2) it is the
least restrictive means of furthering that compelling governmental interest. Both references (f) and (g) also
place the burden of proof for the compelling governmental interest and least restrictive means “upon the
DoD Component and not upon the individual requesting the exemption.” In denying my request, as
demonstrated throughout both enclosures (1) and (2), Vice Admiral Nowell failed to prove a compelling
governmental interest. In fact, Vice Admiral Nowell denied my request using a disapproval template and
relied upon a BUMED Memo which was also a preprepared template. Neither the disapproval template
used by Vice Admiral Nowell, nor the BUMED template used by Rear Admiral Gillingham, addressed in
any way the overwhelming evidence I provided in my original religious accommodation request from 15
September 2021, and my addendum from 19 October 2021.

Vice Admiral Nowell has violated both law and regulation in utilizing the discriminatory process
established in the DCNO(N1) SOP. This process attempts to circumvent established standards required by
both law and regulation while attempting to hide unlawful actions behind an intentionally designed fagade
meant to wrongfully appear compliant with regulatory standards. The discriminatory process used by Vice
Admiral Nowell to disapprove my religious accommodation request has caused me personal detriment by
denying me my right to due process under the Fifth Amendment and my right to freedom of religious
expression under the First Amendment of the Constitution. The process used by Vice Admiral Nowell to
review religious accommodation requests must be brought into compliance with law and regulation
immediately before more sailors are harmed.

I have deep concerns that this complaint, detailing the discriminatory disapproval process for
religious accommodations in the Navy, will not be properly address and will instead be ignored and
dismissed. Due to these concerns I intend to copy this communication to both the House and Senate Armed

4
60a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 14of160 PagelD 4450

Services Committees in the hope that this will ensure that all unlawful religious discrimination in the Navy
is properly addressed. I also remind reviewers of this complaint that this is a protected communication
under 10 U.S.C. 1034 and its implementing regulations.

(6) As redress I respectfully request that you immediately cease the unlawful and
discriminatory review process for Navy Religious Accommodations and that you rescind
my disapproval and all such disapprovals executed to date. I also request that you re-
review each such religious accommodation request in accordance with law and
regulation, including meeting the government’s burden of proof as required by 42 U.S.C.
2000bb-1 and DODINST 1300.17.

5. ICERTIFY THE ABOVE INFORMATION IS TRUE AND CORRECT TO THE BEST OF MY
KNOWLEDGE, AND THIS COMPLAINT IS SUBMITTED PER THE GUIDELINES AND
PROCEDURAL REQUIREMENTS IN CHAPTER II], MANUAL OF THE JUDGE ADVOCATE
GENERAL.

SIGNATURE OF COMPLAINANT 7 Date: /A/AS/Q/
SIGNATURE OF WITNESS: YW (LllLe Date:_*3olee 2
y,
4
PRIVACY ACT STATEMENT

1. Authority. 10 U.S.C. §§ 938, 8013.

2. Principal purpose(s). Used by command authorities and the Office of the Judge Advocate General to
review, take action, and make recommendations to the Secretary of the Navy on Article 138, UCMJ, and
Article 1150, U.S. Navy Regulations, complaints of Wrong.

3. Routine uses. The Blanket Routine Uses that appear at the beginning of the Department of the Navy's
compilation in the Federal Register apply.

4, Mandatory or voluntary disclosure and effect on individual not providing information. Providing
requested information is voluntary; however, failure to do so may result in delayed command action and
Secretarial review, or the inability to notify complainant of the Secretary's decision.
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 15o0f160 PagelD 4451

Religious Accommodations

Background: On 22 January 2014, SECDEF released a new DoDI (see TAB A) changing the way
requests for religious accommodation would be routed and reviewed. Previously, Commanding Officers
had the authority to approve or deny requests for religious accommodation. There was no consistency
and some Commanding Officers did not significantly evaluate the request. The DoDI transferred the
decision authority for all requests for religious accommodation that fall outside current uniform and
grooming standards as well as Navy policy to CNP. In order to ensure each request is given due
consideration, the DoDI instructs CNP to view each request in its entirety. Each request is evaluated on a
case by case basis. For example, a request from an operational member to grow a beard may be denied,
while the same request made by a Sailor on shore duty could be approved. Whatever the decision, it is
only valid while the Sailor’s circumstances remain the same. If the Sailor executes PCS orders or the
nature of the Sailor’s work changes significantly, a new request will have to be routed. The Sailor must
abide by current Navy standards and policy while the request is being adjudicated. Reservists also fall
under this instruction. They are required to submit their requests via the same channels as active duty.

Step-by-Step Instructions
Phase 0 (Steps 1 — 5)

1. N131 receives Religious Accommodation (RA) requests via a functional email distro,
ALTN Navy Religious Accommodations@navy.mil. The inbox only reliably receives email
from NMCI email addresses, so submitters are encouraged to send an email without an encrypted
endorsement first to ensure communication is received. Here is an example of an email requesting
consideration of an RA:

e + 3

Religious Accommodation Request ICO ATAN Alazzawi CNATTU LeMoore
To Mavy Religious Accommodations

20

ig Re! Accomodation Reg CNATT 2nd End Siul21.pdl TAN PHOTO.jrx

Submitted for your review and consideration

Thank you!

VR,

PRIVACY ACT NOTICE: This communication may contain privileged or ather offictal information. if you are not the intended recipient or believe that you have received this communication in
error, please reply to the sender indicating that fact and delete
the copy you received. It is 2 violation of Federal law to print, copy, retransmm, disseminate, or otherwise use this information.
63a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 17of160 PagelD 4453

6. Open the RA Tracker located on the shared drive at N131 > N131D > 2N131D23 RA Tracker >
Data tab. Add the new request to the bottom of the spreadsheet and ensure there are no duplicate
entries. Fill in all vacant fields using the Original request as the authoritative data source

7. Move the file to the Phase 1 - Initial Intake\Phase 1 - Immunizations\00 Initial Drop Off folder.

BUPERS_ALTN_N45997_N13 (\\naeawnydfs101v.nadsusea.nads.navy.mi \cs022$) (Z:) » N131 >» N131D » 2N131D22 RA Adjudications >» Phase 1 - Initallntake » Phase 1- Immunizations » 00 Initial Drop Off

ta) Neme Date modified Type Size

JA2 11/2/2021 11:42 PM File folder
LCOR 11/1/2021 6:21 PM File folder
2 11/2/2021 11:46 PM File folder
| si 11/2/2021 11:47 PM File folder

8. Open the original request to ensure the following are included [AW BUPERSINST 1730.11A and
MILPERSMAN 1730-020: (Appeals only require member’s request and command endorsement)
a. Member’s Request

b. Command Endorsement (+Second Endorsement if not an O-6 Command)
c. Chaplain Memo

d. Chaplain Checklist

e.

Page 13 (Immunizations Only)
67a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 210f160 PagelD 4457

14. Inside the Phase 1 - Immunizations\01 Ready For Processing folder, add the most recent RA
Response Letter template and rename the files to the following nomenclature:
a. 1-RA Response Letter ICO Last First RANK
b. 2-RA Request ICO Last First RANK
c. 5- Original Email ICO Last First RANK

> N131D > 2N131D22 RA Adjudications » Phase 1- Initial Intake » Phase 1- Immunizations > 01 Ready ForProcessing » FCC Hickman (A-F) » Achanzar, Joshua HN

A

i Name Date modified Type Size
- =| 1- RA Response Letter |CO BN 021 9:35 AM Microsoft Word D... 43 KB
2- RA Request |C ONE N 17:10 PM Adobe Acrobat D.. 512 KB

a &l 5- Original Email CO HN

34AM Outlook Item 618 KB

tio #
s #

st

15. Open 1 - RA Response Letter ICO Last, First RANK to update the response letter to reflect the
new request’s specific information from the 2— RA Request ICO Last, First RANK document.
The highlighted sections below are the sections that will need to be updated. Save those changes
and route to Phase 3 after verification of all five initial documents are confirmed from Step 8.

DEPARTMENT OF THE NAVY

1730

Foe Deputy Chief of Naval Operations (Manpower. Personnel, Training and Education) (N1)
RATE/RANK (DESIG) First MI La:t, USN
bad Commanding Officer, PCU HYMAN G. RICKOVER (SSN 795)

Subj: REQUEST FOR RELIGIOUS ACCOMMODATION THROUGH WAIVER OF
TMMUNIZATION REQUIREMENTS

Ref. (@)42 USC. §2000bb-1
(DoD. 1300.17 of 1
(@) ASN QM&RA) memo of 6 June 13
(¢) MILPERSMAN 1730-020
( United States Atomey General memo of 6 October 17
(z) Your lit of 20 Dec 20 w/ends
() BUMED Jf 6320 Ser, M44/21 UMXXNKY of dd Mea ir

2020

1. Pursuant to references (a) through ®. your request for relizious accommodation through
‘waiver of ‘You must receive all required vaccines.
However, you are free to request real your our healthcare Lahde alternative vaccines that are
available and meet the Navy's ya
military healthcare provider. You are free to chooee whick cov. 19 vaccine to take. If you
choose a COVID-19 vaccine that requizes two doses, you must receive your first does within five
calendar (5) days upon receipt of this letter and complete the series as prescribed. If you choose a

one-dose vaccine you must meet the established vaccination timeline or receive the vaccine
within five calendar (5) days upon receipt of this letter, whichever is later

2. Inline with references (b) through (d), Iam designated as the approval authority for requests
for religious accommodation.

3. Reference (a), the Religious Freedom Restoration Act (RFRA), states thet the Government
may substantially burden an individual's exercise of religion only iit demonstrates erie
application of the burden to the person is in furth ofa
and is the least restrictive means of furthering that interest. Reference (i inicomparales ‘he Rh RFRA
and note: that the Government has a compelling interest in mission accomplishment, to include
military readiness, unit cohesion, good order end discipline, health and safety, on both individual
and unit levels. Additionally, unless it will have an adverse impact on mission accomplishment,
including military readiness, unit cokesion and good order and discipline, the Navy will

date individual exp of sincerely held beliefs of Sailors. Reference (f)
72a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 26 o0f160 PagelD 4462

24. You must periodically check the status of the by going to your Inbox > Awaiting Responses. The
taskers can be sorted by tasker number, subject, due date, etc. By clicking on a tasker, you can see
where the tasker is in the process in the Tasker Details window,

& Tasker Management Trusted A

me Responder Views
lan Fesponses Requested (12)
fo. >. i >. vo}

le Delegated Responses

he Reviewer Views LEGAL FRONT OFFICE Responded Ranponder
Ba Peviews Requened (31 SANTI FRONT OFFICE Unread Reapondec

{,Nt FRONT OFFICE

25. Retrieve legal memos from the following folder: RA Adjudications\New Legal Memo Dropoff
and add to the folder.

26. Once a response by BUMED populates, download the BUMED Memo to the member’s folder.
Ensure the name and date of member’s request are accurate (if not correct send back for rework).

12
73a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 27 of160 PagelD 4463

27. Update Date/Serial in Ref H on the Response Letter (1 - Response Letter ICO Last, First RANK)

ex pvartaobirathtary THE NAVY

1730
Ser NL

From: Deputy Chief of Naval Operations (Manpower, Personnel, Training and Education) (N1)
To: RATE/RANK (DESIG) First MI Last, USN
Via: Commanding Officer, PCU HYMAN G. RICKOVER (SSN 795)

Subj: REQUEST FOR RELIGIOUS ACCOMMODATION THROUGH WAIVER OF
IMMUNIZATION REQUIREMENTS

Ref: (a) 42 U.S.C. §2000bb-1
(k.BoR Instruction 1300.17 of 1 September 2020
(c) SECNAVINST 1730.8B
(d) ASN (M&RA) memo of 6 June 13
(e) MILPERSMAN 1730-020
(® United States Attomey General memo of 6 October 17
(g) Your ltr of 20 Dec 20 w/ends
(h) BUMED Ir 6320 Sex, M44/21UMXXXXX of dd Mum vy

1. Pursuant to references (a) through (h), your request for religious accommodation through
waiver of immunization requirements is disapproved. You must receive all required vaccines.
However, you are free to request from your healthcare provider altemative vaccines that are
available and meet the Navy’s immunization ents, as ined by a credentialed
military healthcare provider. You are free to choose which COVID-19 vaccine to take. If you
choose a COVID-19 vaccine that requires two doses, you must receive your first does within five
calendar (5) days upon receipt of this letter and complete the series as prescribed. If you choose a
one-dose vaccine you must meet the established vaccination timeline or receive the vaccine
within five calendar (5) days upon receipt of this letter, whichever is later.

2. In line with references (b) through (d), I am designated as the approval authority for requests
for religious accommodation.

3. Reference (a), the Religious Freedom Restoration Act (RFRA), states that the Goverment
may substantially burden an individual's exercise of religion only if 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 interest. Reference (b) incorporates the RFRA
and notes that the Government has a compelling interest in mission accomplishment, to include
military readiness, unit cohesion, good order and discipline, health and safety, on both individual
and unit levels. Additionally, unless it will have an adverse impact on mission accomplishment,

28. Once a tasker has been responded to by NO975, CNP LEGAL FRONT OFFICE, N1 FLEET, and
BUMED, send to the Phase 4 folder - 0 Ready For Processing / 00 Phase 3 Drop Off

< > BUPERS_ALTN_N45997_N13 (\\neeawnydfs101v.nadsusea.nads.navy.mil\cs022$) (Z:) » N131 >» N131D » 2N131D22RA Adjudications » Phase 4 - Ready for N131 Review

its Name Date modified Type Size
0 Ready For Processing 11/2/2021 8:17 PM File folder
1 Awaiting LT [J 11/2/2021 8:11 PM File folder

29. Do not forward unless all stakeholders have reviewed and following documents are in the folder:
a. 1-RA Response Letter ICO Last First RANK

2 - RA Request ICO Last First RANK

3 - RA Legal Memo ICO Last First RANK

4-BUMED Memo ICO Last First RANK

5 - Original Email ICO Last First RANK

13
75a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 29 of160 PagelD 4465

34. Open the following document: REF B - RA Immunizations Requests Tracker Template

35. Begin filling in the spreadsheet after reading through the entirety of the buckslip, original request,
BUMED and Legal Memos and add any pertinent information for DCNO (N1) to consider. THIS
IS THE MOST CRITICAL STEP IN THE ENTIRE PROCESS AND THE CNO AND CNP
ARE RELYING ON YOU TO ENSURE THAT YOUR REVIEW IS THOUROUGH AND
ACCURATE. DO NOT RUSH THIS PROCESS AND ENSURE THAT YOU UNDERSTAND
BEFORE MOVING FORWARD.

36. Ensure all the information (dates/name spellings/letter formatting) match.

37. Move to the right side of the spreadsheet.

38. When Complete, save changes as DD MON_YY

15
76a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 30 o0f160 PagelD 4466

39.

40.

41.

42.

43.

44.

Open “TAB C - Coordination Page — Rank/Rate Last Name” to update the dates on the
coordination page to the current date of processing to match the folder. Save the changes.

COORDINATION PAGE
Sailor Request - Accommodation from MILPERSMAN 1730-020 to waive immunization
DCNO N1 Response — Disspproval (Member and Fleet Safety)
Office Dept Pomt of ContactTitle Phone Date Remarks
OPNAYV (NO975) LCDRS. Deese (703) 695-3824 25 Sep 2h The interviewing
chaplain adequately advised the command on the requestor’s sincerity and the religious nature of
their beliefs
OPNAVNIFLT FLICMW.Koshoffer (703) 604-2616 25Sep21 Concur No
equity for Officers
OPNAVNIJAG CDRA. Leahy (703) 604-5804 25Sep21 Conkur
OPNAYV (N131) CDR D. Cua (703) 604-5023 25Sep22 Concur
OPNAY (N13) RADM J. P. Waters (703) 604-5040
OPNAY (NI) VADM John B. Nowell, Jr (703) 604-2748

Upon Completion of the file modification, move entire file to 4 - Ready for N131 Review\2
Awaiting N131 Review (LT Didawick) or 3 Awaiting N131 Review (CDR Cua) based on your
assigned reviewer identified on the organization chart.
Rename Folder and files with appropriate batch number

a. DD_MON_YY-I (1 Batch)

b. DD MON _YY-2 (2™ Batch)

After Review from Phase 4 is complete, drop files in the following folder:
\\naeawnydfs101v.nadsusea.nads.navy.mil\CS021$\BUPERS ALTN_N45997_N1\COVID-19
RA

Link the spreadsheet in the folder to the locations by pressing CTRL+K on the word “here”

Email the N13 Front office that the folder is ready.

To. Katson, Mery Angela Sanabria CAPT USN DCNO Nj (USA)
Ausen, Kelsey R POL USN DCNO M1 (USA); Molina, Gary LCDR USN DCNO Ni (USA); Didawick, Joshua A LT USN DCNO Ni (USA) <joshua.didawick@navy.mil>
Ready for Review 2 Nov 21-2
Deputy,
Please see RA 2_Nov_21-2 at your earliest convenience here.

V/r

16
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 31of160 PagelD 4467

45. The request will be routed through the deputy to N13. Once a decision is made by N13, the N13
Administrative Assistant will update the Coordination Page and Buckslip then send the request to
N1 via email.

46. Once a final decision has been made on the request, N1 will return the signed TAB A — Response
Letter — RA ICO Rank/Rate Last Name.

47. N13 Front Office will save the letter in the Sailor’s RA Request folder as “DCNO Signed —
Rank/Rate Last Name RA” and a notification email will be sent to N131.

48. An email containing that letter is emailed to the Sailor via their command by replying to the
original email request.

RE: Partial Aoproval of Religious ICO SR GREYSEN G. WILLIAMS.
8 GreatLakes RTC Relighaas Accommodation; Amundsen, Kiltlyn ELT USN RLSO MIDWEST GRL

[2] DCNO Signed o a

YN2,

Please see the attached Religious Accommodation adjudeatior ICO “a

Very Respectfully,

LT flich Newer, PHR

OPNAY N131 Officer Plans and Policy
(703) 604-5013

49. Update the RA Tracker workbook’s Data tab to reflect the dates of the process and
approval/disapproval.

50. Move the folder to RA Adjudications > 00 ARCHIVED REQUESTS.

« CS022$ >» BUPERS_ALTN_N45997_N13 > N131 > N131D > 2N131D22 RA Adjudications vy vO
es Name Date modified lype Size
00 ARCHIVED REQUESTS 6/29/2021 9:43 AM File folder
7/9/2021 9:04 PM File folde
7 121 11:46 AM File folder
7/9/2021 11:44 PM File folder
6/29/2021 5:30 PM File folder

17
78a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 32 of 160 PagelD 4468

DEPARTMENT OF THE NAVY
OFFICE OF THE CHIEF OF NAVAL OPERATIONS
2000 NAVY PENTAGON
WASHINGTON DC 20350-2000

1730
Ser N1/115772
23 Nov 21

From: Deputy Chief of Naval Operations (Manpower, Personnel, Training and Education) (N1)
To: CDR Robert A. Green Jr., USN
Via: Commanding Officer, Maritime Expeditionary Security Squadron EIGHT

Subj: REQUEST FOR RELIGIOUS ACCOMMODATION THROUGH WAIVER OF
IMMUNIZATION REQUIREMENTS

Ref: (a) 42 U.S.C. §2000bb-1
(b) DoD Instruction 1300.17 of 1 September 2020
(c) SECNAVINST 1730.8B
(d) ASN (M&RA) memo of 6 Jun 13
(ec) MILPERSMAN 1730-020
(f) United States Attorney General memo of 6 Oct 17
(g) Your ltr of 19 Oct 21 w/ends
(h) BUMED Itr 6320 Ser M44/21UM41350 of 28 Oct 21

1, Pursuant to references (a) through (h), your request for religious accommodation through
waiver of immunization requirements is disapproved. You must receive all required vaccines.
However, you are free to request from your healthcare provider alternative vaccines that are
available and meet the Navy’s immunization requirements, as determined by a credentialed
military healthcare provider. You are free to choose which COVID-19 vaccine to take. If you
choose a COVID-19 vaccine that requires two doses, you must receive your first dose within five
calendar (5) days upon receipt of this letter and complete the series as prescribed. If you choose
a one-dose vaccine you must receive the vaccine within five calendar (5) days upon receipt of
this letter.

2. In line with references (b) through (d), I am designated as the approval authority for requests
for religious accommodation.

3. Reference (a), the Religious Freedom Restoration Act (RFRA), states that the Government
may substantially burden an individual’s exercise of religion only if 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 interest. Reference (b) incorporates the RFRA
and notes that the Government has a compelling interest in mission accomplishment, to include
military readiness, unit cohesion, good order and discipline, health and safety, on both individual
and unit levels. Additionally, unless it will have an adverse impact on mission accomplishment,
including military readiness, unit cohesion and good order and discipline, the Navy will
accommodate individual expressions of sincerely held beliefs of Sailors. Reference (f)
79a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 33 0f 160 PagelD 4469

Subj: REQUEST FOR RELIGIOUS ACCOMMODATION THROUGH WAIVER OF
IMMUNIZATION REQUIREMENTS

emphasizes that only those interests of the highest order can overbalance legitimate claims to the
free exercise of religion.

4. All requests for accommodation of religious practices are assessed on a case-by-case basis.
In line with references (b) and (c), determination of a request for religious accommodation
requires consideration of the following factors:

a. Impact on military readiness, unit cohesion, good order and discipline, health and safety
b. Religious importance of the request

c. Cumulative impact of repeatedly granting similar requests

d. Whether there are alternatives available to meet the requested accommodation and

e. How other such requests have been treated

5. In making this decision, I reviewed reference (g), including the endorsements from your
chain of command, the local chaplain and the advice of Chief, Bureau of Medicine and Surgery
in reference (h).

a. A waiver of immunizations would have a predictable and detrimental effect on your
readiness and the readiness of the Sailors who serve alongside you in both operational and non-
operational (including training) environments. Primary prevention of disease through
immunizations has been a key enabler for maintaining force health and avoiding disease-related
non-battle injury. Granting your request will have a direct and foreseeable negative impact on
the compelling Government interests of military readiness and health of the force.

b. While serving in the U.S. Navy, you will inevitably be expected to live and work in close
proximity with your shipmates. I find that disapproval of your request for a waiver of
immunization requirements is the least restrictive means available to preserve the Department of
Defense’s compelling interest in military readiness, mission accomplishment and the health and
safety of military Service Members.

6. The Navy is a specialized community governed by a discipline separate from that of the rest
of society. While every Sailor is welcome to express a religion of choice or none at all, our
greater mission sometimes requires reasonable restrictions. You have my sincere best wishes for
your continued success in your Navy career.

NOWELL.JOHN.BL pigtaity signed by
057611835 Date; 2021.11.23 12:58:47 -05°00'

JOHN B. NOWELL, JR

Copy to:
OPNAV (N131, N0975)
BUMED
80a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 34of160 PagelD 4470

EXHIBIT B
83a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 37 of 160 PagelD 4473

EXHIBIT C
84a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 38 o0f160 PagelD 4474

7 January 2022
Memorandum for all Members of the House and Senate Armed Services Committees
From: Commander Robert Alan Green Jr., U.S. Navy
Subject: Report of Navy-Endorsed Violations of Law, Regulation, and Constitutional Rights

Encl: (1) Article 1150 Complaint of Wrong Against Vice Admiral Nowell for Unlawful
Religious Discrimination, submitted by CDR Robert A. Green Jr. on 23 December 2021
(2) DCNO (N1) Standard Operating Procedure for Religious Accommodations Nov 2021

I am an active duty U.S. naval officer and hereby submit this report under the Military Whistle-
blower Protection Act (10 U.S.C. § 1034) to share my internal Navy complaint, enclosure (1), which
documents multiple violations of law, regulation, and constitutional rights. These violations are being
committed by Navy leadership against military service members who express sincere religious beliefs that
preclude them from receiving a COVID-19 vaccination.

I received the Navy’s standard operating procedure (SOP) for processing religious accommoda-
tions, enclosure (2), after the document was made public by another whistleblower. The SOP was drafted
by the Navy’s Manpower, Personnel, Training, and Education Office, which is led by Vice Admiral John
Nowell. The SOP outlines the process for systematically denying COVID-19 religious accommodation
requests, and provides proof of religious discrimination and multiple violations of regulation and constitu-
tional rights. The SOP has been utilized by Vice Admiral Nowell and his staff to process the surge in
religious accommodation requests following the Secretary of Defense’s vaccine order of 24 August 2021.
On 23 December 2021, I filed a complaint against Vice Admiral Nowell, enclosure (1), for his use of this
unlawful and discriminatory process. My complaint was filed as an exhibit in the U.S. NAVY SEALs 1-26,
et al., v. BIDEN, et al., federal court case in the Northern District of Texas that very afternoon. The
evidence I provided in my complaint proved to be a crucial element in the case and was referenced multiple
times by Judge O’Connor in his ruling, which granted a preliminary injunction to the plaintiffs on 3 January
2022.

In his ruling, Judge O’Connor stated “[t]he Navy provides a religious accommodation process, but
by all accounts, it is theater.” Additionally, he highlighted policy inconsistencies, pointing out that the Navy
has granted exemptions to the vaccine mandate for a wide range of secular reasons, but insists on 100%
vaccination or disciplinary action for all service members seeking religious accommodation. This is clearly
discriminatory and a violation of the Constitution, federal law, and military regulation.

Despite Judge O’Connor’s ruling, it appears the Navy intends to continue this discriminatory denial
process. The Navy has proven incapable of policing itself. Therefore, I am requesting your involvement to
ensure the free exercise of religion in the Navy, and throughout the military. Please demand accountability
of our senior naval leaders for their unlawful actions and join in the call for an immediate end to religious
discrimination in our military. The defense of our Nation requires that service members are free to serve
without fear of discrimination or retaliation for faithfully adhering to the dictates of their conscience.

C~ R.A. GREEN JR
CDR USN
85a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 40 of 160 PagelD 4476

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

U.S. NAVY SEALs 1-3, on behalf of
themselves and all others similarly situated;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1, on behalf of
himself and all others similarly situated; U.S.
NAVY SEALS 4-26; U.S. NAVY SPECIAL
WARFARE COMBATANT CRAFT
CREWMEN 1-5; and U.S. NAVY DIVERS
1-3,

Plaintiffs, Case No. 4:21-cv-01236-O
Vv.

LLOYD J. AUSTIN, II, in his official
capacity as United States Secretary of
Defense; UNITED STATES
DEPARTMENT OF DEFENSE; CARLOS
DEL TORO, in his official capacity as
United States Secretary of the Navy,

Defendants.

DECLARATION OF BRIAN J. FERGUSON

Pursuant to 28 U.S.C. § 1746, I, Brian J. Ferguson, declare under penalty of perjury that
the following is true and correct:

1. I am over the age of eighteen and am competent to make this declaration.

2. I am a lawyer licensed to practice in the great State of Texas. I am admitted to
United States District Court for the Western District of Texas, the Navy-Marine Corps Court of

Criminal Appeals and the United States Court of Appeals for the Armed Forces.
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3. I primarily represent service members in the United States Navy and United States
Marine Corps pro bono as a civilian attorney. I have represented over 100 service members pro
bono as a civilian since 2011.

4. I am also a judge advocate in the Air Reserve Component of the Air Force Judge
Advocate General’s Corps. This declaration is made entirely within my civilian capacity.

5. My military clients have included Navy Explosive Ordnance Disposal Technicians,
SEALs, Special Warfare Combatant Craft Crewmen, and Navy Divers. Most of these clients are
Navy Sailors attached to United States Special Operations Command units.

Least Restrictive Means FOIA

6. On December 23, 2021, I submitted a Freedom of Information Act (FOIA) request
to the Office of the Chief of Naval Operations. I requested all records for the “least restrictive
means analysis” used by the Navy to deny COVID-19 related religious accommodation waivers.

7. On January 20, 2022, I received a response to my FOIA request from Mr. Gregory
Cason, Deputy Director of the Department of the Navy FOIA/PA Program office. A copy of the
response is attached hereto as Exhibit A.

8. The Navy’s response states that the FOIA/PA Program Office “contacted the Chief
of Naval Personnel (N1) and the Navy Bureau of Medicine and Surgery (BUMED) to conduct a
search for applicable records regarding all responsive records supporting the following ‘least
restrictive means analysis’ used to deny COVID-19 related religious accommodation waivers.”

9. The Navy’s response states that the Navy “identified 2 records totaling 50 pages
that are responsive to your request.”’ Those records were produced to me with the Navy’s response

and are attached hereto as Exhibit B and Exhibit C.
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10... The Navy has not identified or produced any other documents in response to this
FOIA request.

Records Actually Reviewed to Deny Request FOIA

11. Iam pro bono counsel for EOD1 Branden M. Vriens, USN, for matters before the
United States Navy. His request for a Request for Religious Accommodation Through Waiver of
Immunization was denied by the Navy.

12. EOD1 Vriens is not a named Plaintiff in this matter. He is currently pending
medical discharge from the Navy for combat related injuries. His military pay rate makes hiring
an attorney experienced in federal court litigation cost prohibitive.

13. On December 6, 2021, EOD1 Vriens submitted a FOIA request to the Department
of the Navy. He requested “[a]ll responsive records reviewed by the Deputy Chief of Naval
Operations (Manpower, Personnel, Training and Education) (N1) in adjudicating the Request for
Religious Accommodation Through Waiver of Immunization Requirements for EOD1 Branden
M. Vriens, USN.”

14. On January 23, 2021, Mr. Gregory Cason, Deputy Director of the Department of
the Navy FOIA/PA Program Office, responded to EOD1 Vriens FOIA request. A copy of Mr.
Cason’s response is attached hereto as Exhibit D.

15. The Navy’s response states that the FOIA/PA Program Office contacted OPNAV
Office N1 for the responsive records.

16. The Navy’s response states that the Navy reviewed the responsive records, and
“they are releasable in their entirety.” While the Navy used the plural, they produced a single
record to EOD1 Vriens as part of the response. The record is attached hereto as Exhibit E.

17. The Navy has not identified or produced other records as part of this request.
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The Administrative Separation and Appeal Process

18. I have represented Naval Special Warfare members in Administrative Separation
Boards since 2015. I have extensive experience with the discharge process, including appeals to
the Naval Discharge Review Board, the Board of Correction of Naval Records, and the Court of
Federal Claims.

19. Based on my experience, the administrative separation and discharge process can
take months or years.

20. The appeal process to the Naval Discharge Review Board (NDRB) and Board of
Correction for Naval Records (BCNR) routinely takes years.

21. | Even when service members are granted relief via these processes, there are
additional delays in providing that relief.

22. To illustrate the delay in administrative separation: I represented a Special Warfare
Combatant Craft Crewmen before an Administrative Separation Board on October 24, 2019. The
member’s final separation did not occur until June of 2021.

23. To illustrate the delay in appeals: I submitted an appeal to the Naval Discharge
Review Board for a former Naval Special Warfare member on December 8, 2020. There has still
been no notification of action on the submission. A request for an update, submitted on February
17, 2022, has not received a reply.

24. To illustrate the delay in relief: I currently represent a former Naval Special Warfare
member before the Court of Federal Claims. The member’s command falsely accused him of
misconduct. Despite his demand for an opportunity to prove his innocence at a court-martial, the
Navy instead opted to send him directly to an Administrative Separation Board. The Board,

conducted on May 31, 2017, returned a finding of no misconduct. Nevertheless, despite the Board
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results, the Navy wrongfully separated the member on March 23, 2018. On November 1, 2018,
the member filed suit against the Navy in the Court of Federal Claims. The case was remanded to
the Navy for appeals to the NDRB and BCNR. On December 17, 2019, the NDRB accepted the
member’s application for discharge review. In August 2020, the NDRB found in favor of the
member. Similarly, the BCNR entered a finding in favor of the member on June 18, 2021. The
case is still pending before the Court of Federal Claims because the member has yet to receive the

relief granted by the Navy’s own board.

I declare under penalty of perjury that the foregoing is true and correct to the best of my

BRIAN J. FERGUSON

knowledge. Executed on January 28, 2022.
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EXHIBIT A
91a

Document 134 Filed 02/28/22 Page 46 of160 PagelD 4482
DEPARTMENT OF THE NAVY
OFFICE OF THE CHIEF OF NAVAL OPERATIONS
2000 NAVY PENTAGON
WASHINGTON, DC 20350-2000

5720
Ser DNS-36GC/2U103150
January 20, 2022

Sent via email to: ferguson@abileneoperating.com

Mr. Brian Ferguson
PO BOX 302204
Austin, TX 78703

Dear Mr. Ferguson

This is in reference to your Freedom of Information Act
(FOIA) /Privacy Act (PA) request dated December 23, 2021. Your
request was received in our office on the same day and assigned
case number DON-NAVY-2022-002750

In the course of processing your FOIA request this office
contacted the Chief of Naval Personnel (N1) and the Navy Bureau
of Medicine and Surgery (BUMED) to conduct a search for
applicable records regarding All responsive records supporting
the following "least restrictive means analysis" used to deny
COVID-19 related religious accommodation waivers: "All
alternative measures for preventing spread of disease are
insufficient due to unique circumstances inherent in naval
service. Vaccination is the only viable option for achieving the
compelling interest."

Those offices have identified 2 records totaling 50 pages
that are responsive to your request. Upon review of these
records, it has been determined that they contain instances of
personally identifiable information (PII), such as the names,
dates of birth, and social security numbers of individuals.
These instances of PII are exempt from disclosure under 5 U.S.C.
§ 552(b) (6), Since release of this information would result ina
clearly unwarranted invasion of their personal privacy. The
remainder of the records are released to you.

You have the right to an appeal within 90 calendar days
from the date of this letter. There are two ways to file an
appeal: through FOIAonline or by mail.

(1) Through FOTAonline. This will work only if you set
up an account on FOIAonline before you make the request that you
would like to appeal. To set up an account, go to FOIAonline
(this is a website that will appear as the top hit if you search
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the internet for “FOIAonline”), click “Create Account” (a link

located within the blue banner at the top in the upper right
corner), enter your data into the field that subsequently
appears, and click “Save” (at the bottom left of the screen).
With your account thereby created, you will have the power to
file an appeal on FOIAonline to any request you file on
FOITAonline thereafter. To do so, locate your request (enter a
keyword or the request tracking number in the “Search for” field
on the “Search” tab), click on it, then the "Create Appeal" tab
in the left-hand column. Complete the subsequent field, click
“Save,” and FOIAonline will submit your appeal.

(2) By mail. Address your appeal to:

The Judge Advocate General (Code 14)
1322 Patterson Avenue SE, Suite 3000
Washington Navy Yard, DC 20374-5066

If filing an appeal by mail please provide a letter that
explains what you are appealing with any supporting arguments or
reasons you think may be worthy of consideration;

b. A copy of your initial request;
c. A copy of the letter of denial.
Also, please provide me a copy of your appeal letter at:
DONFOIA-PA@NAVY. MIL

For this determination, you have the right to seek dispute
resolution services from either the DoD Navy Component FOIA
Public Liaison, Mr. Chris Julka, at:
christopher.a.julka@navy.mil, via phone: (703) 697-0031; or by
contacting the Office of Government Information Services
at: (hnttps://ogis.archives.gov/), (202) 741-5770, ogis@nara.gov.

In this instance, the fees associated with the processing
of your request are waived, but this action is not indicative of
how future requests will be handled.
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Questions regarding the action this office has taken

during the processing of your request may be directed to
our FOIA service center at (202)
DONFOIA-PA@navy.mil,

numbers cited above.

685-0412 or via email at
and reference the FOIA tracking

Sincerely,

G. Cason
Deputy Director,
DON FOIA/PA Program Office
95a

e 4:21-cv-01236-O0 Document 134 Filed 02/28/22 Page 50of160 PagelD 4486
ENT OF DEPARTMENT OF THE NAVY
OFFICE OF THE CHIEF OF NAVAL OPERATIONS
2000 NAVY PENTAGON
WASHINGTON DC 20350-2000

1730
Ser N13/306
17 Nov 21

MEMORANDUM

From: Director, Military Personnel Plans and Policy (N13)
To: | Deputy Chief of Naval Operations (Manpower, Personnel, Training and Education) (N1)

Subj: RELIGIOUS ACCOMMODATION (RA) REQUESTS FROM SAILORS SEEKING
IMMUNIZATION WAIVERS

Ref: (a) 42 U.S.C. §2000bb-1
(b) DoD Instruction 1300.17 of 1 Sep 20
(c) SECNAVINST 1730.8B Ch-1
(d) BUPERSINST 1730.11A
(e) MILPERSMAN 1730-020
(f) ASN (M&RA) memo of 6 Jun 13
(g) BUMEDINST 6230.15B
(h) OPNAVINST 1300.20

Encl: (1) CHBUMED Itr 6320 Ser M44/21UM401 of 22 Sep 21
(2) CDC Information of 15 Sep 21

1. Purpose. This memorandum provides analysis of the least restrictive means for achieving the
Navy’s compelling government interest in preventing the spread of diseases to support mission
accomplishment, including military readiness, unit cohesion, good order and discipline, or health
and safety, at the individual, unit, and organizational levels. This includes reducing vaccine
preventable diseases in individual Sailors and preventing the spread of vaccine-preventable
communicable diseases among Sailors. The compelling government interest is not in dispute and
is addressed here only briefly. Navy leaders have determined that requiring all Navy Service
Members (“Sailors”) to be vaccinated against certain diseases is the least restrictive means of
achieving that compelling government interest. This memorandum explains the analysis behind
that determination and addresses the risk to mission accomplishment inherent in deviating from
requiring vaccination of all Sailors.

2. References. Reference (a), the Religious Freedom Restoration Act (RFRA), prohibits the
U.S. Government from substantially burdening a person’s exercise of a sincerely held religious
belief unless the restriction, as applied to the specific person, is in furtherance of a compelling
government interest and is the least restrictive means of furthering that compelling government
interest. References (b) through (d) establish procedures for Sailors seeking religious
accommodations (RAs). Reference (e) provides amplifying details on RA requests for
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IMMUNIZATION WAIVERS

immunization waivers. ' Reference (f) designates the Deputy Chief of Naval Operations
(Manpower, Personnel, Training, and Education) (DCNO N1) as the U.S. Navy adjudication
authority for RAs, including requests for immunization waivers. In cases where DCNO N1 has
disapproved a request, and the member submits an appeal, the adjudication authority rests with
the Chief of Naval Operations (CNO), in line with references (c) and (d).

Compelling Government Interest

3. The Navy’s compelling government interest in preventing spread of diseases to support
mission accomplishment, including military readiness, unit cohesion, good order and discipline,
or health and safety, at the individual, unit, and organizational levels is addressed in enclosures
(1) and (2), along with the Bureau of Medicine and Surgery (BUMED) endorsement on each RA
request seeking an immunization waiver. Vaccine-preventable diseases cause severe illness,
long-term health effects, and death, interfere with the ability of Sailors to accomplish the Navy’s
mission at the individual, unit, and organizational levels, decrease the overall health of the force,
and place additional strain on medical resources. Spread of communicable diseases among
Sailors who live and work in tight quarters aboard ships or in communal environments while
deployed, or who live or work in close proximity to others in the shore establishment, have the
potential to cause mission failure when one or more personnel become too sick to effectively do
their jobs. Logistical challenges inherent in moving personnel to and from deployed ships and
other deployed environments make it difficult to quickly evacuate sick personnel and replace
them with healthy personnel who are adequately trained and ready at a moment’s notice. The
Navy’s lean manning methodology to operate successfully during prolonged budget constraints
further limits the quick replacement of personnel in deployed environments. In the case of
personnel operating in foreign locations, the spread of communicable diseases from U.S. Navy
personnel to host-nation personnel would have a detrimental impact on U.S. foreign relations,
especially if the illness was viewed as preventable. Additionally, Navy ships have limited
medical and long-term placement capabilities. If even one Sailor infected with a communicable
disease requires treatment beyond the capabilities of a ship’s medical department, or if multiple
Sailors must be placed in critical care, a decision will have to be made whether the ship may
have to abandon its mission and transit to a location that offers more adequate treatment.
Foreign medical facilities may also refuse to accept a U.S. Navy patient infected with a
communicable disease, requiring the ship to transit farther—potentially thousands of miles,
exacerbating an already difficult situation. Foreign ports may refuse entry to a Navy ship with a
communicable disease onboard. The ship may be denied free pratique and not allowed to enter

* As of the date of this memorandum, reference (e) is out of conformity with reference (b), rendering many
provisions of reference (e) invalid. For example, a commanding officer (CO) cannot order a Sailor with an RA
approved by DCNO NI to receive a vaccine waived by the RA because reference (b) allows rescission of an RA
only by an official at the level in the chain of command that granted the RA. In other words, if DCNO N1 grants an
RA, then only DCNO NI (or someone senior to DCNO N1) may rescind the RA. The only exception is for exigent
circumstances amounting to a life-threatening or mission critical emergency. (For example, a CO could order a
Sailor to shave a religious beard approved by DCNO N1 to get an effective seal on a gasmask in response to credible
intelligence of an imminent chemical weapons attack.) Because immunizations do not provide immediate
immunity, it is unlikely a CO would have bona fide exigent circumstances to order a Sailor to receive an
immunization where a RA waived the requirement for a Sailor to receive that immunization. See, e.g., CDC
guidance on the COVID-19 Delta variant, available online at: https://www.cdc.gov/coronavirus/2019-
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IMMUNIZATION WAIVERS

port or allow personnel to embark or disembark. While the consequences of disease are most
severe in deployed ships, they are nevertheless compelling in Navy billets ashore. A significant
portion of the shore establishment is collocated with the operating forces and supports those
forces with readiness activities such as maintenance, technical support, training, and medical
care. Many shore duty billets require in-person work in enclosed office spaces where spread of
disease is possible. Even Sailors who might be able to work in isolation a large portion of the
time have certain military duties, such as medical exams, physical fitness tests, urinalysis, and ad
hoc meetings. Finally, because the Navy prioritizes manning on deployable units first, many
shore units are manned only at or be/ow the planned manning levels, magnifying the impact of
preventable sickness on mission accomplishment.

4. There are specific compelling government interest concerns for each required vaccination.

a. COVID-19 can cause severe illness and death in young, otherwise healthy individuals,
including the eight active duty Sailors and two active duty Marines killed by the disease as of 26
October 2021. Ail ten of these personnel were not fully vaccinated. No deaths caused by
COVID-19 have been reported in fully vaccinated service members, active or reserve. The
highly transmissible Delta variant is of particular concern and is more transmissible than other
variants.” As reported in enclosure (1), studies of available mRNA vaccines, including the FDA-
approved Comirnaty vaccine manufactured by Pfizer, have shown an 88% efficacy rate against
the Delta variant. Further, enclosure (1) discusses a recent study showing over 71% of recent
COVID infections occurring in unvaccinated individuals and more than 85% of hospitalizations
in unvaccinated individuals. For people evaluated in the study, the hospitalization rate of
unvaccinated individuals was more than 29 times that of fully vaccinated individuals. While
anyone can spread COVID-19, fully-vaccinated people will likely spread the virus for less time
and to fewer people than unvaccinated people.

b. In the case of Sailors, including those in the accession pipeline, who are requesting waiver
of all future immunizations, the following considerations apply to vaccinations required by
reference (g) for all Sailors, regardless of location:

(1) Every year, the influenza vaccine is required for all Sailors who do not have a medical
or administrative exemption. As explained in enclosure (1), the spread of influenza will deprive
the Navy of medical resources and commands of personnel needed to accomplish the mission
while those personnel recover and place additional strain on those who must augment to fill the
sick Sailors’ positions. In severe cases, personnel infected with influenza require hospitalization.
Influenza outbreaks can be explosive, with the potential to incapacitate many Sailors assigned to
one command.

(2) Every 10 years, the Tdap (tetanus, diphtheria, pertussis) or Td (tetanus, diphtheria)
vaccine is required for all Sailors who do not have a medical or administrative exemption.
Enclosure (1) explains the specific, debilitating consequences of infection with each of the
diseases prevented by the highly effective Tdap vaccine. For example, the Tdap vaccine is
almost 100% effective at preventing tetanus, a disease with an 11% mortality rate. Infection

2 Centers for Disease Control and Prevention. “Delta Variant: What We Know About the Science” 26 Aug 2021,
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IMMUNIZATION WAIVERS

with tetanus would prevent a Sailor from performing their individual mission and affect mission
accomplishment at the unit level, and recovery takes months. Tdap is 97% effective at
preventing diphtheria, which is common in some areas outside of the United States. Before the
development of a vaccine, diphtheria was a leading cause of death among children in the United
States. Diphtheria has a 5 to 10% mortality rate. Tdap is 80 to 85% effective at preventing
pertussis, a disease that causes bacterial pneumonia in more than 13% of cases. A Sailor infected
with any of the diseases that Tdap successfully prevents could be inhibited from accomplishing
their mission for months, and death is possible.

c. A number of vaccines are required by reference (g) for deployment and/or overseas
assignment. These location-specific vaccinations protect Sailors against local threats, including
anthrax, Japanese encephalitis, yellow fever, typhoid fever, and smallpox. The Geographic
Combatant Command (GCC) establishes these requirements, and the GCC Command Surgeon
serves as the approval authority for waivers of the GCC requirements. The following
information is from the Centers for Disease Control and Prevention (CDC) website
(www.cde.gov) and other public sources:

(1) The CDC website reports the anthrax vaccine is 93% effective. Anthrax inhalation? is
almost always fatal in unvaccinated individuals who do not receive immediate treatment, and
even with aggressive treatment, anthrax inhalation kills 45% of unvaccinated patients.

(2) The World Health Organization website (www.who.int) indicates the Japanese
encephalitis vaccine is more than 99% effective. The CDC website indicates that, although
Japanese encephalitis is rare, one in four cases is fatal.

(3) According to the CDC, typhoid fever is common in developing nations, with as many
as 21 million cases occurring each year, mostly in South Asian and Southeast Asian nations
frequented by deployed Sailors. Because antibiotic treatments are effective against the disease,
only about 200,000 of these patients die each year. However, the CDC reports a growing
incidence of typhoid fever resistant to antimicrobial drugs. The disease can be spread both by
contaminated food and water and by contact with infected persons.

(4) The CDC website reports that, although yellow fever infection is rare, 30 to 60% of
those who develop severe yellow fever disease die.

(5) The smallpox vaccination is so effective that it eradicated a disease the World Health
Organization characterizes on its website as “one of the most devastating diseases known to
humanity.” Before mass vaccination, millions of people were killed or disfigured by the disease.
It is believed that smallpox no longer exists in nature. However, the CDC reports, “There is a
credible concern that in the past some countries made the virus into weapons, which may have
fallen into the hands of terrorists or other people with criminal intentions.”

3 The anthrax immunization requirement in reference (g) is designed to protect personnel against weaponized
anthrax. Research into the harm of anthrax has been possible because of exposure to naturally occurring anthrax.
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d. Requiring new accessions to the Navy to have completed or receive traditionally childhood
immunizations is also critical to mission accomplishment. Although an individual breakdown of
these required immunizations is beyond the scope of this memorandum, it is addressed in
Appendix D to reference (g). Examples of diseases for which new accessions must receive
immunizations, if not previously immunized, include adenovirus, polio, measles, mumps,
rubella, hepatitis A and B, and varicella.

Non-Pharmaceutical Interventions (NPIs)

5. BUMED reports that the CDC recommends use of NPIs in conjunction with vaccination to
stem the spread of diseases transmitted by respiratory droplets, including COVID-19, influenza,
and pertussis. Specifically, the CDC recommends respiratory hygiene (covering mouth and nose
while coughing or sneezing), avoiding touching the face, frequent hand washing with soap for at
least 20 seconds, cleaning and disinfecting objects and surfaces that are frequently touched,
avoiding sick people, and self-quarantine when a person feels unwell. BUMED reports that
masking is appropriate in some circumstances, as well as social distancing of six feet or more to
stem the spread of certain respiratory illnesses. Unfortunately, BUMED reports that there is very
limited data available on the effectiveness of NPIs. This makes it difficult to compare
scientifically proven efficacy rates of NPIs not accompanied by vaccination to the efficacy rates
of vaccination or vaccination with NPI usage. BUMED states that NPIs are known to be more
effective at preventing spread of disease when implemented as community-wide mandates than
when implemented by one individual. This factor is key in the determination that NPIs are not
sufficient alone to protect Sailors from the risks imposed by COVID-19 and other communicable
diseases, and ultimately to ensure the Navy’s ability to achieve mission accomplishment,
including readiness, unit cohesion, good order and discipline, or health and safety, at the
individual, unit, and organizational levels.

Least Restrictive Means

6. COVID-19. As discussed below, mandatory immunization of all Sailors against COVID-19
is the least restrictive means of achieving the Navy’s compelling government interest in reducing
to zero any preventable impairment to mission accomplishment, including readiness, health, and
safety, at the individual, unit, and organizational levels in the operating forces and shore
establishment.

a. Health and Safety. The Navy has not identified any means equally or more effective than
mandatory immunization against COVID-19 to ensure the health and safety of Sailors, including
a Sailor who seeks a religious accommodation from the mandatory COVID-19 vaccination
requirement. As discussed in paragraph 4 and enclosure (1), the scientific data shows that a fully
vaccinated Sailor is at far less risk of serious illness or death in the event of a “breakthrough
COVID-19 case.” To date, not one fully vaccinated Sailor has died from COVID-19. Among
those Sailors who are fully vaccinated, only 1.7 percent contracted a “breakthrough case”
between 17 December 2020 and 26 October 2021. In the same timeframe, 23.3% of
unvaccinated active duty Sailors experienced COVID-19 infections. Regardless of whether a
Sailor is assigned to the operating forces or the shore establishment, mandatory COVID-19
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immunization is the least restrictive means to ensure readiness and health and safety at the
individual, unit, and organizational levels of the Navy.

b. Restriction of Movement (ROM). For more than a year during the COVID-19 pandemic,
the Navy imposed stringent restrictions across the force in every location to limit the activities
and behaviors of Sailors assigned to both shore and operational units to keep them and the force
healthy. Almost all quality-of-life port visits were cancelled, and Sailors were ordered to
quarantine within the bubbles of their ships for two weeks before getting underway. (This
quarantine is referred to as restriction of moment (ROM).) Ashore, Sailors were ordered to
forego haircuts, prohibited from dining in restaurants, and restricted from recreation to a far
greater degree than the general public. COVID-19 vaccinations have allowed the lives of many
Sailors to start getting back to normal. ROM periods have been relaxed for fully vaccinated
Sailors and for crews of ships with very high vaccination rates.

(3) In the best of times, Navy life is hard on Sailors’ family and social lives. There are
many challenges that our Sailors face that are unique to naval service. In the case of an
operational unit preparing to deploy, additional stress is expected as the Sailors must balance the
demands of work and home. Long periods of time underway are known to strain the emotional
and psychological wellbeing of Sailors. Adding additional periods of time isolated from family,
friends, and society at large due to ROM requirements has exacerbated these concerns and
negatively impacted readiness. This concern is equally as important on shore duty, which the
Navy relies on as a periodic respite from the stress of sea duty. However, the ROM periods were
justified as a necessary mitigation technique to avoid COVID-19 infections that could interfere
with mission accomplishment, and were largely effective.

(2) It is not safe for a vessel to deploy with even one unvaccinated Sailor unless the entire
crew goes through a ROM period and port visits continue to be cancelled. As explained in
enclosure (2), “Vaccinated people can still become infected and have the potential to spread the
virus to others, although at much lower rates than unvaccinated people.” Further, unvaccinated
personnel are significantly more likely to require hospitalization than vaccinated individuals with
breakthrough infections. Taken together, these two facts make clear that imposing ROM
measures only on unvaccinated Sailors would be insufficient to protect against risk of mission
failure inherent in allowing unvaccinated Sailors to go to sea because an unvaccinated Sailor can
be exposed to COVID-19 via a breakthrough case in a vaccinated shipmate who was not required
to ROM. There is an appreciable risk that acquiring treatment for one unvaccinated Sailor would
require a ship to abandon its mission and transit to a location with a shore-based medical facility
able and willing to care for the COVID-19 patient. Some countries may deny a Navy ship free
pratique, that is entry into port and disembarkation or embarkation of personal, if there is a
communicable disease onboard, or host-nation medical facilities may be unwilling or unable to
accept unvaccinated U.S. COVID-19 patients, which could lead to a ship abandoning its mission
and transiting thousands of miles in an effort to save a life, with negative impact on unit and
organizational mission accomplishment.

(3) Continuing to require 14-day ROM periods for all Sailors and canceling future port
visits is not a sustainable approach. Port visits serve as a much-needed venue to acquire parts,
mail, fresh food, and a quality of life respite for Sailors. This approach would involve a very
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high cost to the emotional and psychological wellbeing of other Sailors, decreasing the readiness
of the entire crew. Further, a deployment with no port visits that locks Sailors to their ships
weeks before getting underway will likely lead to diminished job satisfaction and discourage
Sailor recruitment and retention. While this tradeoff was temporarily acceptable during the
COVID-19 pandemic before vaccinations were available, use of ROM as permanent means of
accomplishing the Navy’s compelling governmental interest in mission accomplishment is
untenable.

c. Other available NPIs, both those identified by BUMED and others discussed by recent
news articles, are insufficient to protect unvaccinated Sailors aboard U.S. Navy ships for the
following reasons:

(1) Masking. The Navy can require all Sailors to wear masks, but full-time tight quarters on
a ship severely limits its effectiveness, as does communal living in barracks or working in close
quarters ashore. Aboard ship, unvaccinated Sailors will have to eat, sleep, shower, and brush
their teeth in the same spaces as vaccinated Sailors who have gone on liberty among the general
public and been excused from ROM requirements.

(2) Ventilation. U.S. Navy ships have almost no windows, and fresh air circulation is
limited by steel construction that includes collective protection systems (CPS) in place to seal off
areas of ships for protection against chemical, biological, or radiological weapons attacks.

During training drills, the ship will secure ventilation to demonstrate the required actions in the
case of a damage-control emergency.

(3) Social distancing. Maintaining a social distance for Sailors on U.S. Navy ships is
impossible. Narrow passageways do not allow for Sailors to maintain social distances when
transiting a ship. Almost all enlisted berthing compartments feature three-foot by six-foot bunks,
referred to as “racks,” that are stacked three high and have only narrow passages between rows.
Enlisted berthing compartments have as few as 12 and as many 210 personnel sleeping in the
same space, where there are generally racks for six Sailors in every thousand cubic yards.
Sailors in larger berthing compartments are never alone in the head when they shower or brush
their teeth while underway because a head the size of a studio apartment can be shared among
200 or more personnel. In the case of fast-attack submarines, populations are smaller, but some
Sailors have to take turns sleeping in shared racks. Most officers share small staterooms with
between one and five of their peers, and tiny heads are often shared between many officers. In
addition to sleeping and engaging in personal hygiene, meals are also unconducive to use of
NPIs. Sailors are fortunate if they can keep their elbows and knees six inches from those around
them while eating on mess decks. The wardrooms where officers dine are only slightly more
spacious. Extending meal hours to allow fewer people to dine at a time would unfairly burden
Culinary Specialists and Food Service Attendants, who are already known in the Navy for
having some of the longest and most arduous working hours, and would not be sustainable.
There are few alternative locations for Sailors to eat on ships, and allowing Sailors to take meals
out of areas designated for eating has the potential to invite rodent and insect infestations. Even
if the recommended 6-foot spacing were possible, it may not be adequate aboard ships due to the
ventilation characteristics of the vessel. Social distancing may be more tenable ashore, but is
highly dependent on the type of work a Sailor does and the configuration of their workspace(s).
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(4) Cleanliness. As hard as Sailors work to keep their ships clean, safe transit up and down
ladders and through watertight doors requires everyone to touch all of the same handrails and
handles frequently. Further, although Sailors can be reminded to use hand sanitizer, frequent
handwashing is not generally possible because Sailors have to transit up and down ladders, with
those shared handrails, to get between their workspaces and the heads in which they can wash
their hands.

(5S) Self Quarantine. It is very difficult to quarantine individual Sailors onboard an
underway U.S. Navy ship because there are limited extra spaces. On smaller ships, medical
divisions operate out of one space. Even on larger ships, medical departments have limited
space to quarantine or isolate personnel. Further, vaccinated or unvaccinated Sailors with
COVID-19 infections may be asymptomatic or may suffer such mild symptoms that they do not
realize they are contagious until after an unvaccinated shipmate has become infected.

d. Because shipboard environments significantly limit the effectiveness of all NPIs, and
because even one serious COVID-19 infection can pull a ship off station resulting in mission
failure at the unit and possibly organizational levels, immunization of all Sailors against COVID-
19 is absolutely necessary and is the least restrictive means of achieving the Navy’s compelling
government interest in preventing spread of communicable disease to ensure mission
accomplishment.

e. Although the drawbacks of NPIs are most acute shipboard, the NPIs still do not meet the
compelling government interest ashore. Ashore, a Sailor is in more frequent contact with the
public, and has significant interaction outside the Navy workplace. Therefore, the opportunity to
be in close contact with.an infected person is actually greater. Additionally, none of the NPI,
individually or together, is sufficiently effective to meet the Navy’s compelling government
interest.

7. Other Respiratory IlInesses. NPIs are ineffective at stemming the spread of other respiratory
illnesses aboard ships for the same reasons NPIs are ineffective against COVID-19. For many
years, U.S. Navy units have been spared serious outbreaks of influenza, diphtheria, and pertussis
by widespread vaccination among the U.S. population and among Sailors in particular.
Unfortunately, vaccine hesitancy in recent years has allowed for an uptick in communicable
disease in the American public. Due to the tight quarters aboard ships discussed above, infection
with one of these respiratory illnesses by an unvaccinated Sailor is likely to spread quickly and
incapacitate other unvaccinated Sailors. Because of lean shipboard manning and the possible
need to abandon a mission to seek higher-level medical care for an infected Sailor, one of these
diseases could lead to mission ineffectiveness or mission failure, Therefore, immunization is the
least restrictive means available to achieve the Navy’s compelling government interest in
reducing to zero any preventable impairment to mission accomplishment because it helps to
prevent the spread of these diseases through individual infections or community spread of these
diseases.

8. Mosquito-Borne Illnesses. Japanese encephalitis and yellow fever are transmitted by
mosquitos. Sailors traveling to or stationed in parts of the world where one of these diseases is
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endemic can protect themselves through very careful use of mosquito repellents. Unfortunately,
there is risk in forgetting to apply repellent or getting bitten immediately after showering but
before having an opportunity to apply repellent. Also, the potential harm from these diseases is
great, including risk of death. Because NPIs are significantly less reliable than immunization,
NPIs alone are not sufficient to prevent spread of mosquito-borne illnesses, and immunization is
the least restrictive means available for preventing the spread of these diseases to allow for
mission accomplishment. These vaccines are required only of Sailors who are likely to be
deployed to areas of the world where the diseases are common.

9. Contamination-Related JIJnesses. Typhoid fever is usually caused by consumption of
contaminated food or water or by close contact with an infected person, and is common in
certain parts of the world. Tetanus is caused by bacterium spores entering the body through
broken skin. Ships, piers, and shipyards are industrial environments in which any scrape or
scratch could cause a tetanus infection for an unvaccinated Sailor. There are no NPIs to prevent
the spread of these illnesses, and risk of harm is great. Therefore, immunization is the least
restrictive means available for preventing harm from these diseases to allow for mission
accomplishment. The Typhoid vaccine is required only of Sailors who are likely to be deployed
to areas of the world where the disease is common.

10. Weaponized Disease. Anthrax and smallpox present a threat to Sailors only if weaponized
by an enemy or terrorist organization. Immunization is the only measure to prevent either of
these diseases. Therefore, immunization is the least restrictive means for preventing harm from
these diseases to allow for mission accomplishment.

11. Sailors on Shore. The U.S. Navy budget, end-strength limits, and personnel strategy dictate
that every Sailor must be deployable and do not allow for keeping Sailors on the payroll who are
unable to deploy. This policy is documented by reference (h), OPNAVINST 1300.20,
“Deployability Assessment and Assignment Program,” which requires administrative separation
processing or referral to the Disability Evaluation System for any Sailor who is undeployable for
12 months or longer. It is very rare for a Sailor to be retained in a permanent limited duty status
because the Navy needs Sailors who can go to sea or otherwise deploy.

a. Authorizing Sailors assigned to shore duty or the Navy Reserve to forego required
immunizations is untenable because of the need for Sailors to be ready to deploy at a moment’s
notice. Even a Sailor on shore duty pending retirement can be called up to deploy when
necessary to achieve mission requirements. Presidential recall under Title 10, U.S. Code,
authorizes the Reserve Component to mobilize in a variety of geographic locations, including
overseas.

b. Immunity is not instantaneous. Every vaccination requires time to confer immunity. In the
case of the now-mandatory COVID-19 Pfizer vaccination, immunity is achieved five weeks after
the first dose (two weeks after the second dose). For a short-notice mission, whether in response
to tasking or to relieve other Sailors impacted by injury or illness, mission failure could result if
Navy leaders are required to wait five weeks to safely deploy Sailors waived from vaccination
requirements because of assignment to shore duty.
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c. Even one unvaccinated Sailor, after contracting COVID-19, affects mission
accomplishment at the individual level, and can infect dozens of other Sailors, exacerbating the
problem of shore and Reserve deployability. Vaccines for worldwide-deployable Sailors
throughout the force (shore and sea) constitute the least restrictive means of ensuring a ready,
agile fighting force.

d. In addition, individual Sailors and units ashore perform important duties in support of the
Navy mission. As an “optimally” manned organization, the Navy relies on each Sailor and unit
to be fully ready to accomplish their mission because there is often no backup person with the
same skillset. Therefore, even a Sailor who is not subject to imminent deployment must be
ready, healthy, and safe to perform their shore-based mission.

12. To achieve its mission, the Navy relies on all Satlors receiving required immunizations,
except where the health risk of vaccination exceeds the benefits of vaccination, such as in the
case of life-threatening allergies to vaccine components. The small! group of Sailors who have
temporary medica! exemptions and the very small group with permanent medical exemptions are
at higher risk for infection, hospitalization, and death, making it even more important that those
who work with and around them to be vaccinated. Deviating from this standard will put the
mission, our medical capabilities, our Sailors, and their families at risk.

Rear Admiral, U.S. Navy

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- DEPARTMENT OF THE NAVY
BUREAU OF MEDICINE AND SURGERY
7700 ARLINGTON BOULEVARD
FALLS CHURCH VA 22042

IN REPLY REFER TO

6320
Ser M44/21UM401
22 Sep 21

From: Chief, Bureau of Medicine and Surgery
To: | Deputy Chief of Naval Operations, Manpower, Personnel, Training, and Education (N1)

Subj: DISEASES TARGETED WITH MANDATORY VACCINATIONS FOR UNITED
STATES NAVY ACTIVE DUTY AND RESERVE PERSONNEL

1. Subject matter experts at the Bureau of Medicine and Surgery have compiled the below facts
on certain mandatory vaccines for United States (U.S.) Navy Active Duty and Reserve
personnel. The information below provides some of the scientific and medical rationale for the
vaccine requirements for vaccine-preventable diseases that would otherwise create risk to the
readiness of the Force.

2. Coronavirus Disease 2019 (COVID-19)

a. Means of infection and infectivity. Person-to-person transmission via respiratory fluids,
composed mainly of respiratory droplets and aerosol particles. Basic reproduction numbers (i.e.,
the number of people who become ill due to exposure to a single case) are estimated to be 2.8 for
the original strain, 4-5 for the Alpha variant, and 5-8 for the Delta variant. In other words, every
case of Delta variant COVID-19 can infect 5-8 people if effective countermeasures are not
employed.

b. Disease’s specific harm to health. COVID-19 symptoms are extremely unpredictable, and
range from non-existent (asymptomatic) to death. The most common symptoms are: fever or
chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches,
headache, loss of taste or smell, sore throat, congestion, nausea or vomiting, and diarrhea. These
more minor symptoms result in clinic visits, time off work, reduced productivity, possible
temporary incapacitation (requiring bed rest). Most serious cases may require hospitalization,
the need for oxygen support, and mechanical ventilation. Between 17 December 2020 and 31
August 2021, six Sailors and one Marine have died due to COVID-19; none of them were fully
immunized.

(1) The risk of complications from COVID-19 illness is significant. A recent Center for
Disease Control and Prevention (CDC) report showed COVID-19 patients had nearly 16 times
the risk for myocarditis compared with patients who did not have COVID-19, and this risk was
higher in younger age groups.

(2) In addition, there is a significant risk of persistent COVID symptoms after recovery
from acute illness, or “long COVID.” A recent study found that in patients who had recovered
from COVID-19, 87.4% reported persistence of at least one symptom, particularly fatigue and
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dyspnea at an average of 60 days after symptoms onset. Another found that nearly 2/3 of people
hospitalized with COVID-19 still had symptoms 6 months later.

c. Treatment required and level of medical treatment facility capable of delivering that
treatment. While mild cases may only require isolation and routine symptomatic care, severe
cases may rapidly require intensive resources (Role 3 hospital with Intensive Care Unit (ICU)
level care and mechanical ventilation) that are not routinely available in a deployed setting. A
recent study of over 43,000 COVID-positive patients in England showed the rate of
hospitalization within 14 days of testing was 2.2% for the Alpha variant and 2.3% for the Delta
variant (74% were unvaccinated).

d. Efficacy/effectiveness of available vaccine(s). In large phase III trials, the Food and Drug
Administration (FDA) approved COVID-19 vaccine was shown to have over 94% efficacy at
preventing symptomatic COVID-19. For the same vaccine, against the Delta variant in a real
world setting, studies show 88% effectiveness against symptomatic disease, to include
hospitalization and death. Nationally in the United States, per the CDC, from January through
August 2021, the unvaccinated comprised over 99% of all hospitalized COVID patients (over 1.6
million) as well as over 99% of all COVID-19 deaths (over 264,000). There have been zero
COVID-19 deaths of Sailors or Marines among those fully immunized, and zero deaths of
Sailors or Marines due to vaccination administration.

e. Likelihood of infection if unvaccinated. In a recent (24 Aug 2021) CDC report of over
43,000 SARS-CoV-2 infections in Los Angeles County, California (population approx. 9.6M),
over 71% of the infections were unvaccinated and over 85% of hospitalizations were
unvaccinated. The same study reported infection and hospitalization rates among unvaccinated
persons were 4.9 times and 29.2 times the rates of those for fully vaccinated people, respectively.
According to current surveillance data, nearly 87% of hospitalized Department of the Navy
(DON) Active Duty COVID-19 cases since 17 December 2020 are among unvaccinated service
members. For DON Service members who had COVID-19 since December 2020, surveillance
data indicates that hospitalization rates are approximately 500 per 100,000 cases, which is
substantially higher than for influenza (see paragraph 2b).

f. Other methods of prevention. For diseases transmitted by respiratory droplets and aerosol
particles such as COVID-19, the CDC recommends non-pharmaceutical interventions (NPI) in
addition to vaccination. NPIs recommended by the CDC to avoid contracting or spreading
COVID-19 have been categorized as either personal or community based. Personal interventions
comprise respiratory hygiene (covering the mouth and nose during coughing and sneezing),
avoiding touching the face, frequent hand washing, cleaning and disinfecting objects and
surfaces that are frequently touched, avoiding sick people, and self-quarantine when a person
feels unwell. Community-based actions include public education through a variety of
communication strategies, social distancing (6 feet), wearing facemasks, ensuring adequate
ventilation of indoor spaces, and restrictions on public gatherings.

g. Efficacy of non-pharmaceutical interventions. Despite the ability of NPIs to prevent
respiratory virus transmission, there are very limited data available on their effectiveness at the
individual level. Data on the effectiveness of NPIs implemented as community-wide mandates

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(where NPI impacts both source control and personal protection) would not be applicable at the
individual level.

(1) Recent studies have shown efficacy of mask wearing to prevent COVID-19. During a
COVID-19 outbreak on the USS THEODORE ROOSEVELT, persons who wore masks
experienced a 70% lower risk of testing positive for SARS-CoV-2 infection. Similar reductions
have been reported in case contact investigations when contacts were masked and in household
clusters in which household members were masked.

(2) However, in order to be effective, NPI must be implemented rigorously and
continuously, and breaches in implementation are common. This is particularly true in
communal environments such as aboard ships, in barracks, or in field situations; high rates of
transmission have been documented in schools and household settings. One study during a
recent mask mandate found that 90% of 5,893 individuals were observed not wearing a mask or
not wearing it correctly, despite 75.9% of those individuals self-reporting always wearing a mask
in public.

(3) Similarly, NPI such as masks provide measures of community protection, as described
above, only while they are in use. Because the scientific and medical communities predict that
SARS-CoV-2 will remain in global circulation as an endemic virus, the risk to the Force
associated with COVID-19 in unvaccinated personnel may exist in perpetuity.

h. Scientific and Medical opinion on whether non-pharmaceutical interventions, alone or
in concert, will be successful in meeting the compelling government interest. Any combination
of NPI, in the absence of vaccination, are not likely to be effective at preventing COVID-19
outbreaks and their resulting impacts on the Navy’s mission, especially in the setting of the
highly contagious Delta variant. Unlike NPI, vaccination provides its full measure of protection
in an enduring capacity, subject to potential boosters as recommended by the FDA. Vaccination
is not subject to reductions in efficacy due to incomplete implementation as with NPI. For this
reason, vaccination is significantly superior to NPI, and mask wearing, for preventing respiratory
infections such as COVID-19, especially when only implemented at the individual level and not
by the entire community.

3. Influenza

a. Means of infection. Person-to-person transmission via respiratory droplets. Basic
reproduction numbers are estimated to be 0.9-2.1, which means, on average, a person infected
with influenza will spread the virus to 1-2 other people, if no additional protective measures are
in place.

b. Disease’s specific harm to health. Typical symptoms include: fever, cough, sore throat,
runny nose, muscle aches, headaches, fatigue, and vomiting / diarrhea (more common in children
than adults). This results in clinic visits, time off work, reduced productivity, possible temporary
incapacitation (requiring bed rest), and viral shedding, potentially infecting those who come in
contact with the person. Hospitalization is rare among young adults with influenza, 3-7 per
100,000 age 18-49. The most common complications of influenza include secondary bacterial

3
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pneumonia, exacerbations of underlying respiratory conditions, otitis media,
laryngotracheobronchitis, and bronchitis. Other complications may include primary pneumonia,
encephalitis, aseptic meningitis, transverse myelitis, myocarditis, pericarditis, and Guillain-Barré
syndrome.

c. Treatment required and level of medical treatment facility capable of delivering that
treatment. For mild cases, rest at home /in quarters (in isolation), oral rehydration, antipyretics,
and medications to target symptoms. For severe cases or those with complications,
hospitalization (role 3 hospital, minimum) and ICU-level care with mechanical ventilation may
be required.

d. Efficacy of available vaccine(s). Although influenza vaccine effectiveness is variable from
season to season, since 2003, on average it has been 40% (range 10-60%). In addition, influenza
vaccination has been shown in several studies to reduce severity of illness in people who get
vaccinated but still get influenza illness. Influenza vaccination can also reduce transmission of
the virus, thus protecting family members, co-workers, and other contacts from getting sick.
Some of these contacts may be more vulnerable to serious influenza illness, like babies and
young children, the elderly, and those with certain chronic health conditions.

e. Periodicity of vaccine boosters. Annual vaccination is required due to changes in the
circulating viruses.

f. Likelihood of infection if unvaccinated. If unvaccinated for influenza, a Sailor will have a
higher risk of contracting the disease and transmitting it to co-workers. According to the Centers
for Disease Control and Prevention, the estimated annual incidence of influenza infection 1s
approximately 8% (varying from 3% to 11%); approximately half of these cases would be
symptomatic. However, outbreaks can be explosive, with attack rates exceeding 60% over
periods as short as 10 days.

g. Other methods of prevention. For diseases transmitted by respiratory droplets such as
influenza, the CDC recommends NPI in addition to vaccination. NPIs recommended by the
CDC to avoid contracting or spreading respiratory infections have been categorized as either
personal or community based. Personal interventions comprise respiratory hygiene (covering the
mouth and nose during coughing and sneezing), avoiding touching the face, frequent hand
washing, cleaning and disinfecting objects and surfaces that are frequently touched, avoiding
sick people, and self-quarantine when a person feels unwell. Community-based actions include
public education through a variety of communication strategies, social distancing (6 feet),
ensuring adequate ventilation of indoor spaces, and restrictions on public gatherings. The use of
masks may be appropriate in certain situations such as during periods of high community
transmission and when an individual or contact is immunocompromised.

h. Efficacy of other methods of prevention. Despite the potential for NPIs to prevent
respiratory virus transmission, there are very limited data available on their effectiveness at the
individual level. Data on the effectiveness of NPIs implemented as community-wide mandates
(where NPI impacts both source control and personal protection) would not be applicable at the
individual level.
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(1) One published observational study out of Japan regarding influenza transmission
showed the overall effectiveness of mask wearing was 8.6%, while handwashing showed a
negative association (i.e., not protective). A meta-analysis of NPIs to prevent 2009 pandemic
influenza infection showed a statistically significant protective effect for regular hand hygiene
(38%) and a statistically non-significant protective effect for facemask use.

(2) In order to be effective, NPI must be implemented rigorously and continuously, and
breaches in implementation are common. This is particularly true in communal environments
such as aboard ships, in barracks, or in field situations; high rates of transmission have been
documented in schools and household settings. One study during a recent mask mandate found
that 90% of 5,893 individuals were observed not wearing a mask or not wearing it correctly,
despite 75.9% of those individuals self-reporting always wearing a mask in public.

i. Medical opinion on whether other methods of prevention, alone or in concert, will be
successful in meeting the compelling government interest. Any combination of NPI in the
absence of vaccination are not likely to be effective at preventing influenza outbreaks and their
resulting impact on the Navy’s mission. Vaccination is not subject to reductions in efficacy due
to incomplete implementation as with NPI. For this reason, and given the limited data available,
it appears vaccination is significantly superior to NPI and mask wearing in particular, for
preventing respiratory infections such as influenza, especially when only implemented at the
individual level and not by the entire community.

4. Tetanus

a. Means of infection. The bacteria that causes tetanus, C. tetani, usually enters the body
through a wound. In the presence of anaerobic conditions, the spores germinate. Toxins are
produced and disseminated via blood and lymphatics.

b. Disease’s specific harm to health. On the basis of clinical findings, three different forms of
tetanus have been described.

(1) The most common type (more than 80% of reported cases) is generalized tetanus. The
disease usually presents with a descending pattern. The first sign is trismus, or lockjaw,
followed by stiffness of the neck, difficulty in swallowing, and rigidity of abdominal muscles.
Other symptoms include elevated temperature, sweating, elevated blood pressure, and episodic
rapid heart rate. Spasms may occur frequently and last for several minutes. Spasms continue for
3 to 4 weeks. Complete recovery may take months.

(2) Localized tetanus is an uncommon form of the disease in which patients have
persistent contraction of muscles in the same anatomic area as the injury. These contractions
may persist for many weeks before gradually subsiding. Localized tetanus may precede the
onset of generalized tetanus, but is generally milder.
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(3) Cephalic tetanus is a rare form of the disease, occasionally occurring with otitis media
in which clostridium tetani is present in the flora of the middle ear or following injuries to the
head. There is involvement of the cranial nerves, especially in the facial area.

(4) Complications of tetanus are common. Laryngospasm or spasm of the muscles of
respiration leads to interference with breathing. Fractures of the spine or long bones may result
from sustained contractions and convulsions. Hyperactivity of the autonomic nervous system
may lead to hypertension or an abnormal heart rhythm. Nosocomial infections are common
because of prolonged hospitalization. Secondary infections may include sepsis from indwelling
catheters, hospital-acquired pneumonias, and decubitus ulcers. Pulmonary embolism is
particularly a problem in persons who use drugs and elderly patients. Aspiration pneumonia is a
common late complication of tetanus, found in 50% to 70% of autopsied cases. In recent years,
tetanus has been fatal in approximately 11% of reported cases.

c. Treatment required and level of medical treatment facility capable of delivering that
treatment. Tetanus cases must be treated in a tertiary care facility with capability to provide long
term ICU care and mechanical ventilation. Tetanus immune globulin (TIG) is recommended for
persons with tetanus. Intravenous immune globulin (IVIG) contains tetanus antitoxin and may
be used if TIG is not available. Because of the extreme potency of the toxin, tetanus disease
does not result in tetanus immunity. Active immunization with tetanus toxoid should begin or
continue as soon as the person’s condition has stabilized.

d. Efficacy of available vaccine(s). Efficacy of the tetanus toxoid has never been studied in a
vaccine trial. It can be inferred from protective antitoxin levels that a complete tetanus toxoid
series has an efficacy of almost 100%. In the series of 233 cases from 2001-2008, only 7 cases
(3%) had received a complete tetanus toxoid series with the last dose within the last 10 years.

e. Periodicity of vaccine boosters. Every 10 years.

f. Likelihood of infection if unvaccinated. While tetanus is rare in the US (averaging 31
cases per year for 2000-2007), nearly all of those cases were in unvaccinated or under-vaccinated
individuals. Tetanus is much more common outside the US; in 2015 there were approximately
209,000 infections and about 59,000 deaths globally. As noted above, vaccine efficacy is high,
with over 32 times the risk for unvaccinated persons compared to vaccinated.

g. Other methods of prevention. Usual safety measures can help prevent injuries resulting in
cuts or puncture wounds from contaminated objects.

h. Efficacy of non-pharmaceutical interventions. At the individual level, such accidents are
common and have proven difficult to prevent.

i. Medical opinion on whether other methods of prevention, alone or in concert, will be
successful in meeting the compelling government interest. Safety measures alone will not likely
be successful in preventing tetanus-prone wounds.

5. Diphtheria
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a. Means of infection. Transmission of diphtheria is most often person-to-person through
respiratory droplets. Transmission may also occur from exposure to infected skin lesions or
articles soiled with discharges from these lesions. The basic reproduction number is about 2.6.

b. Disease’s specific harm to health. This may be a spectrum, but should include worst case
scenarios and likelihood of worst case scenarios. Understand that co-morbidities play a
significant role in these calculations, and our population tends to lack co-morbidities. The most
common form of diphtheria results in a membranous pharyngitis and tonsillitis, with symptoms
of fever, sore throat, malaise, and anorexia. While some patients may recover at this point
without treatment, others may develop severe disease. The patient may appear quite toxic, but
the fever is usually not high. Patients with severe disease may develop marked edema of the
submandibular areas and the anterior neck along with lymphadenopathy, giving a characteristic
“bull neck” appearance. If enough toxin is absorbed, the patient can develop severe prostration,
pallor, rapid pulse, stupor, and coma. Death can occur within 6 to 10 days. Death occurs in 5-
10% of diphtheria cases.

c. Treatment required and level of medical treatment facility capable of delivering that
treatment. In addition to supportive care, as described for influenza and COVID-19, specific
treatments include antitoxin and antibiotics. Diphtheria antitoxin, produced in horses, has been
used for treatment of respiratory diphtheria in the United States since the 1890s. Diphtheria
antitoxin is available only from CDC, through an Investigational New Drug (IND) protocol.
Diphtheria antitoxin does not neutralize toxin that is already fixed to tissues, but it will neutralize
circulating toxin and prevent progression of disease.

(1) After a provisional clinical diagnosis of respiratory diphtheria is made, appropriate
specimens should be obtained for culture and the patient placed in isolation. Persons with
suspected diphtheria should be promptly given diphtheria antitoxin and antibiotics in adequate
dosage, without waiting for laboratory confirmation. Respiratory support and airway
maintenance should also be provided as needed. Consultation on the use of and access to
diphtheria antitoxin is available through the duty officer at CDC’s Emergency Operations Center
at 770-488-7100.

(2) In addition to diphtheria antitoxin, patients with respiratory diphtheria should also be
treated with antibiotics. The disease is usually no longer contagious 48 hours after antibiotics
have been given. Elimination of the organism should be documented by two consecutive
negative cultures taken 24 hours apart, with the first specimen collected 24 hours after therapy is
completed.

d. Efficacy of available vaccine(s). Diphtheria toxoid-containing vaccine has been estimated
to have an efficacy of 97%.

e. Periodicity of vaccine boosters. Every 10 years in adults.
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STATES NAVY ACTIVE DUTY AND RESERVE PERSONNEL

f. Likelihood of infection if unvaccinated. Diphtheria is rare in the U.S. (14 cases were
reported between 1996 and 2018), but it is much more common outside the U.S. where
vaccination coverage is suboptimal (4,500 cases worldwide in 2015).

g. Other methods of prevention. For diseases transmitted by respiratory droplets such as
diphtheria, the CDC recommends non-pharmaceutical interventions (NPI) in addition to
vaccination, although widespread vaccination has all but eliminated disease incidence in the U.S.
(ex. no cases in 2017 and 2018 according to World Health Organization, which largely
eliminated the subsequent need for diphtheria-related NPI in practice). NPIs recommended by
the CDC to avoid contracting or spreading respiratory infections have been categorized as either
personal or community based. Personal interventions comprise respiratory hygiene (covering the
mouth and nose during coughing and sneezing), avoiding touching the face, frequent hand
washing, cleaning and disinfecting objects and surfaces that are frequently touched, avoiding
sick people, and self-quarantine when a person feels unwell. Community-based actions include
public education through a variety of communication strategies, social distancing (6 feet),
ensuring adequate ventilation of indoor spaces, and restrictions on public gatherings. The use of
masks may be appropriate in certain situations such as during periods of high community
transmission and when an individual or contact is immunocompromised.

h. Efficacy of non-pharmaceutical interventions. While we are not aware of any studies
evaluating the efficacy of NPI specifically for diphtheria, it is likely the effectiveness of most
NPI would be similar to that for other infections transmitted by respiratory droplets.

(1) Despite the potential for NPIs to prevent respiratory disease transmission, there are
very limited data available on their effectiveness at the individual level. Data on the
effectiveness of NPIs implemented as community-wide mandates (where NPI impacts both
source control and personal protection) would not be applicable at the individual level.

(2) In order to be effective, NPI must be implemented rigorously and continuously, and
breaches in implementation are common. This particularly true in communal environments such
as aboard ships, in barracks, or in field situations; high rates of transmission have been
documented in schools and household settings. One study during a recent mask mandate found
that 90% of 5,893 individuals were observed not wearing a mask or not wearing it correctly,
despite 75.9% of those individuals self-reporting always wearing a mask in public.

i. Medical opinion on whether non-pharmaceutical interventions, alone or in concert, will be
successful in meeting the compelling government interest. Any combination of NPI in the
absence of vaccination are not likely to be effective at preventing diphtheria outbreaks and their
resulting impact on the Navy’s mission. Vaccination is not subject to reductions in efficacy due
to incomplete implementation as with NPI. For this reason, and given the limited data available,
it appears vaccination is significantly superior to NPI and mask wearing in particular, for
preventing respiratory infections such as diphtheria, especially when only implemented at the
individual level and not by the entire community.

6. Pertussis. Note: there is no pertussis vaccine preparation that does not contain tetanus and
diphtheria toxoids.
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STATES NAVY ACTIVE DUTY AND RESERVE PERSONNEL

a. Means of infection. Transmission most commonly occurs person-to-person through
contact with respiratory droplets, or by contact with airborne droplets of respiratory secretions.
Transmission occurs less frequently by contact with an infected person’s freshly contaminated
articles. The basic reproduction number is about 5.5.

b. Disease’s specific harm to health. The clinical course of pertussis is divided into three
stages: catarrhal (with symptoms similar to the common cold lasting 1-2 weeks), paroxysmal
(with more severe cough and paroxysms of numerous rapid coughs lasting 1-6 weeks), and
convalescent (with gradual recovery over weeks to months). The most common complication
and cause of death is secondary bacterial pneumonia, occurring in 13.2% of cases. Between
2000 and 2017, 307 deaths from pertussis were reported to CDC, mostly in children. Adults may
also develop complications of pertussis, such as difficulty sleeping, urinary incontinence,
pneumonia, rib fracture, syncope, and weight loss

c. Treatment required and level of medical treatment facility capable of delivering that
treatment. Varying levels of supportive management are required, depending on severity of
disease, as with influenza and COVID-19. Antibiotics are of some value if administered early
(i.e., during the first 1 to 2 weeks of cough before coughing paroxysms begin).

d. Efficacy of available vaccine(s). Diphtheria, Tetanus, and Pertussis (DTaP) vaccine
efficacy ranged from 80% to 85%, with overlapping confidence intervals.

e. Periodicity of vaccine boosters. Every 10 years.

f. Likelihood of infection if unvaccinated. Reported pertussis incidence has been
gradually increasing in the U.S. since the late 1980s and early 1990s, and large epidemic peaks
in disease have been observed since the mid-2000s. A total of 48,277 pertussis cases were
reported in 2012, the largest number reported since the mid-1950s. Recent outbreaks of pertussis
in the U.S. were due to low vaccination rates with large numbers of vaccine refusals (over 75%
in one cluster) based on nonmedical reasons. The disease is more common outside the U.S.; an
estimated 16.3 million people worldwide were infected in 2015, with 58,700 deaths.

g. Other methods of prevention, such as non-pharmaceutical interventions. For diseases
transmitted by respiratory droplets such as pertussis, the CDC recommends non-pharmaceutical
interventions (NPI) in addition to vaccination. NPIs recommended by the CDC to avoid
contracting or spreading respiratory infections have been categorized as either personal or
community based. Personal interventions comprise respiratory hygiene (covering the mouth and
nose during coughing and sneezing), avoiding touching the face, frequent hand washing,
cleaning and disinfecting objects and surfaces that are frequently touched, avoiding sick people,
and self-quarantine when a person feels unwell. Community-based actions include public
education through a variety of communication strategies, social distancing (6 feet), ensuring
adequate ventilation of indoor spaces, and restrictions on public gatherings. The use of masks
may be appropriate in certain situations such as during periods of high community transmission
and when an individual or contact is immunocompromised.
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STATES NAVY ACTIVE DUTY AND RESERVE PERSONNEL

h. Efficacy of non-pharmaceutical interventions. While we are not aware of any studies
evaluating the efficacy of NPI specifically for pertussis, it is likely the effectiveness of most NPI
would be similar to that for other infections transmitted by respiratory droplets.

(1) Despite the potential for NPIs to prevent respiratory disease transmission, there are
very limited data available on their effectiveness at the individual level. Data on the
effectiveness of NPIs implemented as community-wide mandates (where NPI impacts both
source control and personal protection) would not be applicable at the individual level.

(2) In order to be effective, NPI must be implemented rigorously and continuously, and
breaches in implementation are common. This is particularly true in communal environments
such as aboard ships, in barracks, or in field situations; high rates of transmission have been
documented in schools and household settings. One study during a recent mask mandate found
that 90% of 5,893 individuals were observed not wearing a mask or not wearing it correctly,
despite 75.9% of those individuals self-reporting always wearing a mask in public.

i. Medical opinion on whether non-pharmaceutical interventions, alone or in concert, will
be successful in meeting the compelling government interest. Any combination of NPI in the
absence of vaccination are not likely to be effective at preventing pertussis outbreaks and their
resulting impact on the Navy’s mission. Vaccination is not subject to reductions in efficacy due
to incomplete implementation as with NPI. For this reason, and given the limited data available,
it appears vaccination is significantly superior to NPI and mask wearing in particular, for
preventing respiratory infections such as pertussis, especially when only implemented at the
individual level and not by the entire community.

7. My point of contact is CDR (b) (6) , MC, USN, Preventive Medicine, who can be

(6) (6)

10
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Centers for Disease
Control and Prevention

COVID-19

Science Brief: COVID-19 Vaccines and Vaccination

Updated Sept. 15, 2021

Summary of Recent Changes

Last updated September 15, 2021 “~

« Data were added indicating that COVID-19 vaccination remains highly effective against COVID-19 hospitalization
and death caused by the Delta variant of SARS-CoV-2.

« Data were added from studies published since the last update that further characterize reduced COVID-19 vaccine
effectiveness against asymptomatic and mild symptomatic infections with the Delta variant of SARS-CoV-2.

« Data were added from studies published since the last update that suggest decreased vaccine effectiveness
against SARS-CoV-2 infection, symptomatic disease, and hospitalization in several groups of immunocompromised
persons and potential benefit of a third dose of COVID-19 vaccine in immunocompromised populations.

* Data were added summarizing several small studies of heterologous COVID-19 vaccination series (i.e., mixed
schedules), which found that a dose of adenovirus vector vaccine followed by a dose of mRNA vaccine elicits
antibody responses at least as high as two doses of MRNA vaccine.

* Data were added from recent studies examining the duration of protection conferred by COVID-19 vaccination.

* Data were added from recent studies describing clinical outcomes and transmissibility of SARS-CoV-2 infections in
fully vaccinated persons.

View Previous Updates

Key Points

« All COVID-19 vaccines currently approved or authorized in the United States (Pfizer-BioNTech/Comirnaty, Moderna, and
Janssen [Johnson & Johnson)) are effective against COVID-19, including against severe disease, hospitalization, and
death.

« Available evidence suggests the currently approved or authorized COVID-19 vaccines are highly effective against
hospitalization and death for a variety of strains, including Alpha (B.1.1.7), Beta (B.1.351), Gamma (P.1), and Delta
(B.1.617.2); data suggest lower effectiveness against confirmed infection and symptomatic disease caused by the Beta,
Gamma, and Delta variants compared with the ancestral strain and Alpha variant. Ongoing monitoring of vaccine
effectiveness against variants is needed.

« Limited available data suggest lower vaccine effectiveness against COVID-19 illness and hospitalization among
immunocompromised people. In addition, numerous studies have shown reduced immunologic response to COVID-19
vaccination among people with various immunocompromising conditions.

« The risk for SARS-CoV-2 infection in fully vaccinated people cannot be completely eliminated as long as there is
continued community transmission of the virus. Early data suggest infections in fully vaccinated persons are more
commonly observed with the Delta variant than with other SARS-CoV-2 variants. However, data show fully vaccinated
persons are less likely than unvaccinated persons to acquire SARS-CoV-2, and infections with the Delta variant in fully
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vaccinated persons are associated with less severe clinical outcomes. Infections with the Delta variant in vaccinated
persons potentially have reduced transmissibility than infections in unvaccinated persons, although additional studies
are needed.

« This updated science brief synthesizes the scientific evidence supporting CDC’s guidance for fully vaccinated people and
will continue to be updated as more information becomes available.

Background

COVID-19 vaccination is a critical prevention measure to help end the COVID-19 pandemic. COVID-19 vaccines are now widely
available in the United States, and CDC recommends all people 12 years and older be vaccinated against COVID-19.

On August 23, 2021, the U.S. Food and Drug Administration (FDA) approved an mRNA vaccine (Pfizer-BioNTech/Comirnaty) as
a 2-dose series for prevention of symptomatic COVID-19 in persons aged 216 years. This vaccine is also authorized under an
Emergency Use Authorization (EUA) to be administered to prevent COVID-19 in persons aged 12-15 years. A second mRNA
vaccine (Moderna), as well as a recombinant, replication-incompetent adenovirus serotype 26 (Ad26) vector vaccine (Janssen
vaccine Johnson & Johnson]) are authorized under an EUA for use in persons aged >18 years. Both mRNA vaccines are also
authorized for administration of an additional dose to certain immunocompromised persons.

People are considered fully vaccinated if they are >2 weeks following receipt of the second dose in a 2-dose series (mRNA
vaccines), or >2 weeks following receipt of a single-dose vaccine (Janssen vaccine).*

Public health recommendations for people fully vaccinated with FDA-approved or FDA-authorized COVID-19 vaccines consider
evidence of vaccine effectiveness against symptomatic COVID-19 with and without severe outcomes, as well as vaccine impact
on SARS-CoV-2 transmission. Other individual and societal factors are also important when evaluating the benefits and
potential harms of additional prevention measures (e.g., masking, physical distancing) among vaccinated individuals. The
Advisory Committee on Immunization Practices and CDC routinely consider individual health benefits and risks along with
factors such as population values, acceptability, and feasibility of implementation when making vaccine recommendations.(1)
These factors were also considered when developing CDC's interim public health recommendations for fully vaccinated
people.

In this scientific brief, we summarize evidence available through August 24, 2021, for the currently approved or authorized
COVID-19 vaccines (administered according to the recommended schedules) and additional considerations used to inform
public health recommendations for fully vaccinated people, including:

« Vaccine efficacy and effectiveness against SARS-CoV-2 infection in the general population as well as among
immunocompromised persons

« Vaccine effectiveness of heterologous (mixed) vaccination series

« Vaccine performance (i.e., immunogenicity and effectiveness) against emerging SARS-CoV-2 variant viruses, with a
particular focus on the Delta (B.1.617.2) variant

Current evidence indicates that fully vaccinated people without immunocompromising conditions are able to engage in most
activities with low risk of acquiring or transmitting SARS-CoV-2, with additional prevention measures (e.g. masking) where
transmission is substantial or high.

Emerging SARS-CoV-2 viral variants

As of August 28, 2021, the Delta variant of concern (B.1.617.2) is the predominant variant in the United States, with 99% of
sequenced specimens being identified as Delta; current data on variant prevalence can be found on CDC's website. The Delta
variant, first detected in India, has been shown to have increased transmissibility, potential reduction in neutralization by
some monoclonal antibody treatments, and reduction in neutralization by post-vaccination sera.(2)

Other variants that are either no longer detected or are circulating at very low levels in the United States include: Alpha
(B.1.1.7), first detected in the United Kingdom; Beta (B.1.351), first detected in South Africa; Gamma (P.1), first detected in
Japan/Brazil; lota (B.1.526), first detected in the United States-New York; Eta (B.1.525), first detected in the United
Kingdom/Nigeria; Kappa (B.1.617.1) and B.1.617.3, first detected in India. These variants have mutations that alter the
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receptor binding domain of the spike protein and have variable impact on vaccine effectiveness (notably the E484K/Q
mutation in Beta, Gamma, Eta, lota, Kappa, and B.1.617.3; the NS01Y mutation occurring in Alpha, Beta, and Gamma; the
E417T/N mutations in Beta and Gamma; and the L452R mutation in Delta, Kappa and B.1.617.3).(2) Vaccine performance
against emerging SARS-CoV-2 variants is an important consideration when evaluating the need for prevention measures in
vaccinated people and will require continued monitoring.

COVID-19 vaccine efficacy, effectiveness, and immunogenicity

Immunogenicity is the generation of effective protective immunity against a vaccine antigen as measured by laboratory tests.
Vaccine efficacy refers to how well a vaccine performs in a carefully controlled clinical trial, and effectiveness describes its
performance in real-world observational studies. Evidence demonstrates that the approved or authorized COVID-19 vaccines
are both efficacious and effective against symptomatic, laboratory-confirmed COVID-19, including severe forms of the
disease. In addition, as shown below, a growing body of evidence suggests that COVID-19 vaccines also reduce asymptomatic
infection and transmission. Substantial reductions in SARS-CoV-2 infections (both symptomatic and asymptomatic) will reduce
overall levels of disease, and therefore, SARS-CoV-2 virus transmission in the United States. Investigations are ongoing to
further assess the risk of transmission from fully vaccinated persons with SARS-CoV-2 infections to other vaccinated and
unvaccinated people. Early evidence suggests infections in fully vaccinated persons caused by the Delta variant of SARS-CoV-2
may be transmissible to others; however, SARS-CoV-2 transmission between unvaccinated persons is the primary cause of
continued spread.

Animal challenge studies

Rhesus macaque challenge studies provided the first evidence of the potential protective effects of Pfizer-BioNTech, Moderna,
and Janssen COVID-19 vaccines against SARS-CoV-2 infection, including both symptomatic and asymptomatic infection.
Vaccinated macaques developed neutralizing antibodies that exceeded those in human convalescent sera and showed no or
minimal signs of clinical disease after SARS-CoV-2 challenge.(3-5) In addition, COVID-19 vaccination prevented or limited viral
replication in the upper and lower respiratory tracts, which may have implications for transmission of the virus among
humans.(3-5)

Vaccine efficacy from human clinical trials

Clinical trials subsequently demonstrated the FDA-approved or authorized COVID-19 vaccines to be efficacious against
laboratory-confirmed, symptomatic COVID-19 in adults, including severe forms of the disease, with evidence for protection
against both symptomatic and asymptomatic SARS-CoV-2 infection (6-12) (BOX). Trial data demonstrated 100% efficacy of the
Pfizer-BioNTech vaccine against laboratory-confirmed, symptomatic COVID-19 in adolescents 12-15 years old; this estimate
was based on small numbers of cases and prior to emergence of the Delta variant.(13)

Clinical trial data suggest that the Janssen COVID-19 vaccine may have reduced overall efficacy against disease caused by the
Beta variant, compared to the other COVID-19 vaccines. Although sero-response rates were similar between U.S. clinical trial
participants and those from Brazil and South Africa, vaccine efficacy against moderate to severe-critical COVID-19 after 214
days was 74% in the United States (where ~96% of infections were due to the ancestral strain with the D614G mutation), 66%
in Brazil (where ~69% of infections were due to Zeta [P.2]), and 52% in South Africa (where ~95% of infections were due to
Beta).(14) Notably, Janssen vaccine showed good efficacy against severe or critical disease (73%-82%) across all sites.

Box. Summary of vaccine efficacy estimates for approved or authorized COVID-19 vaccines

All approved or authorized COVID-19 vaccines demonstrated efficacy (range 65% to 95%) against symptomatic,
laboratory-confirmed COVID-19 in adults >18 years.

« For each approved or authorized COVID-19 vaccine, efficacy was demonstrated across different populations,
including elderly and younger adults, in people with and without underlying health conditions, and in people
representing different races and ethnicities.

« The Pfizer-BioNTech COVID-19 vaccine also demonstrated high efficacy against symptomatic, laboratory-
confirmed COVID-19 in adolescents aged 12-17 years.

All approved or authorized COVID-19 vaccines demonstrated high efficacy (>89%) against COVID-19 severe enough to
require hospitalization.
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All approved or authorized COVID-19 vaccines demonstrated high efficacy against COVID-19-associated death.

« Inthe clinical trials, no participants who received a COVID-19 vaccine died from COVID-19; the Modema and
Janssen vaccine trials among adults >18 years each had COVID-19 deaths in the unvaccinated placebo arm.

Data from the clinical trials among adults >18 years old suggest COVID-19 vaccination protects against symptomatic
infection and may also protect against asymptomatic infection.

* Inthe Moderna trial, among people who had received a first dose, the number of asymptomatic people who
tested positive for SARS-CoV-2 at their second-dose appointment was approximately 67% lower among vaccines
than among placebo recipients (0.1% [n=15] and 0.3% [n=39], respectively)

* Efficacy of Janssen COVID-19 vaccine against asymptomatic infection was 74% in a subset of trial participants.

No trials have compared efficacy between any of the approved or authorized vaccines in the same study population at
the same time, making comparisons of efficacy difficult.

« All Phase 3 trials differed by calendar time and geography.

« Vaccines were tested in settings with different background COVID-19 incidence and circulating variants.

Vaccine effectiveness from real-world studies

Multiple studies from the United States and other countries have demonstrated that a two-dose COVID-19 mRNA vaccination
series is effective against SARS-CoV-2 infection (including both symptomatic and asymptomatic infections) caused by ancestral
and variant strains and sequelae including severe disease, hospitalization, and death. Early evidence for the Janssen vaccine
also demonstrates effectiveness against COVID-19 in real-world conditions. There is now a substantial volume of scientific
literature examining the effectiveness of COVID-19 vaccination against SARS-CoV-2 infection, symptomatic disease, and other
clinical outcomes; detailed summaries of these studies are available in the International Vaccine Access Center's VIEW-Hub
resource library 4.

Several systematic reviews and meta-analyses of vaccine effectiveness have recently been published (15-17); meta-analyses
indicate an average effectiveness of full vaccination against SARS-CoV-2 infection of 85%-95% shortly after completion of
vaccination. (16, 17) However, many of the studies in these reviews were conducted prior to the emergence of the variants of
concern. Studies in Israel, Europe, and the United Kingdom have demonstrated high real-world effectiveness (>85%) of two
doses of Pfizer-BioNTech COVID-19 vaccine while the Alpha variant was prevalent.(18-26) Studies from Qatar have
demonstrated high effectiveness against documented infection with Alpha and Beta 214 days after receiving the Pfizer-
BioNTech vaccine (90% and 75%, respectively) and the Moderna vaccine (100% and 96%, respectively); importantly, both
vaccines were 96%-100% effective against severe, critical, or fatal disease, regardless of strain.(27, 28) In three studies from
Canada, one demonstrated 79% effectiveness for MRNA vaccines against confirmed infection during a time when Alpha and
Gamma represented most infections, while another two demonstrated 84% and 88% effectiveness, respectively, against
symptomatic infection caused by Gamma/Beta.(29-31)

Individual studies specifically examining vaccine effectiveness against the Delta variant or conducted in the context of
substantial circulation of Delta are summarized in Table 1a and as follows. Studies from the United Kingdom have noted
effectiveness of the Pfizer-BioNTech vaccine against confirmed infection (79%) and symptomatic infection (88%), compared
with the Alpha variant (92% and 93%, respectively).(23, 25) A study from Canada demonstrated 87% effectiveness against
symptomatic illness caused by the Delta variant >7 days after receipt of the second dose of Pfizer-BioNTech vaccine,
compared with 89% for the Alpha variant.(32)Data from Qatar demonstrated 54% effectiveness against symptomatic illness
for the Pfizer-BioNTech vaccine compared with 85% for the Moderna vaccine.(33). Preliminary data from South Africa
on the effectiveness of the Janssen vaccine showed 71% effectiveness against hospitalization when Delta variant was
predominant, compared to 67% when Beta was predominant. Data from Israel MM also suggest decreased effectiveness of
vaccines against infection and illness caused by Delta. The variability in vaccine effectiveness estimates between countries
may in part reflect differences in study methodology, intervals used between vaccine doses, and timing of vaccine
effectiveness assessments. Of note, the United Kingdom and Canada used prolonged intervals of 12-16 weeks between
vaccine doses, which have been observed to induce higher immunogenicity and effectiveness (including in ages >80 years)
(34-37). The most recent estimates from Israel and Qatar represent time points >6 months after initiating respective national
vaccination campaigns and 2-5 months after prior assessments of vaccine effectiveness against the Alpha variant, with
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potential for waning immunity. Notably, in the United Kingdom, Canada, Qatar, South
against hospitalization related to Delta was >90% and comparable to that observed with Alpha for all vaccines currently

approved or authorized in the United States.(26, 32, 33)

4

e750f160 PagelD 4511

frica, and Israel, vaccine effectiveness

Table 1a. Effectiveness of COVID-19 Vaccination Against SARS-CoV-2 Infection and Symptomatic Disease (Including Severe

Disease and Hospitalization) Caused by the Delta Variant

Country Population

UK?® General population 216 years
Canada** General population >16 years

UK General population

(Scotland)?>

UK? General population

United Healthcare workers, first responders, and
States*? other essential and frontline workers
United Health system members 212 years

Qatar** General population >12 years

UK?5 Patients hospitalized following ED visit

Vaccine

Pfizer-BioNTech

Pfizer-BioNTech

Pfizer-BioNTech

Pfizer-BioNTech

Pfizer-BioNTech,

Moderna, or Janssen

Pfizer-BioNTech

Moderna

Pfizer-BioNTech

Moderna

Pfizer-BioNTech

Moderna

Pfizer-BioNTech

Pfizer-BioNTech

Outcome
Symptomatic
disease

Symptomatic
disease

SARS-CoV-2
infection

SARS-CoV-2
infection

SARS-CoV-2
infection

SARS-CoV-2
infection

Hospitalization

SARS-CoV-2
infection

SARS-CoV-2
infection

Symptomatic
disease

Symptomatic
disease

Severe, critical,
or fatal disease

Severe, critical,
or fatal disease

Hospitalization

Vaccine

Effectiveness*

88%'(85-90)

80%'(77-83)

85%'(76-91)

86%'(71-94)

56%'(41-67)

100%1(41-

100)

*Only studies including estimates of vaccine effectiveness >7 days following a completed vaccination series of a COVID-19
vaccine currently approved or authorized for use in the United States are included here. For studies that examined variant-
specific vaccine effectiveness against multiple variants of SARS-CoV-2, only estimates for effectiveness against the Delta
variant are shown. The 95% confidence interval for each estimate of vaccine effectiveness is displayed in parentheses

following the estimate.

1314 days after second dose
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2>7 days after second dose

In addition to preventing morbidity and mortality associated with COVID-19, currently approved or authorized vaccines also
demonstrate effectiveness against asymptomatic SARS-CoV-2 infection. However, most studies of asymptomatic infection
prevention were conducted in the context of circulation of different variants and the effectiveness of COVID-19 vaccines in
preventing asymptomatic infection differs by variant and vaccine. In addition, infections identified in such studies as
asymptomatic may simply have been identified prior to the infected person developing symptoms, i.e., these infections are
presymptomatic rather than asymptomatic. Asymptomatic people are also less likely to be tested for SARS-CoV-2 infection in
most settings and thus less likely to be captured in “real world” effectiveness studies.

Table 1b. Effectiveness of COVID-19 Vaccination Against Asymptomatic SARS-CoV-2 Infection When Different Variants

Predominated
Country Population Vaccine Dominant Vaccine
Variant(s) Effectiveness*
Israel 4 Healthcare workers Pfizer-BioNTech Alpha 65%'(45-79)
United States General population 218 Pfizer-BioNTech or Epsilon, Alpha 68%7(29-86)
(California) *! years Moderna
United States*? Preprocedural adult Pfizer-BioNTech or Ancestral strain 80%7(56-91)
patients Moderna
Qatar?? General population >12 Moderna Delta 80%*(54-93)
years
Pfizer-BioNTech Delta 36%*(11-54)
Israel*? Healthcare workers Pfizer-BioNTech Alpha 86%°(69-93)
Israel?! General population >16 Pfizer-BioNTech Alpha 92%°*(91-92)
years
Israel’? General population >16 Pfizer-BioNTech Ancestral strain, 90%°(83-94)

years

Alpha

*The 95% confidence interval for each estimate of vaccine effectiveness is displayed in parentheses following the estimate.

1211 days after second dose
2215 days after second dose

320 days after second dose

4>14 days after second dose

5>7 days after second dose

Vaccine immunogenicity and effectiveness in immunocompromised people

Vaccination is particularly important for people with immunocompromising conditions, who are at increased risk of severe
COVID-19 illness. However, current evidence suggests reduced protection from COVID-19 vaccines for many
immunocompromised persons. Recent studies in several countries found significantly lower vaccine effectiveness among
immunocompromised adults compared to those without immunocompromising conditions (44-46) (Table 2), although each
study defined the immunocompromised population differently. Studies in the United States and Israel have also found that
immunocompromised persons account for a high proportion (240%) of infections among fully vaccinated hospitalized

persons. (46, 47)

Compared with those who are not immunocompromised, reduced antibody response to a two-dose primary series of MRNA
COVID-19 vaccines has also been observed in specific groups of immunocompromised adults, including people receiving solid
organ transplants (48-54): some neonle with cancer. narticularlv hematologic cancers (55. 56): some neoole receiving
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hemodialysis for kidney disease (57, 58); and people taking certain immunosuppressive medications (51, 53, 54, 59). While
antibody measurement and threshold levels varied by study, a large proportion of immunocompromised persons overall had
a measurable immune response after a two-dose series of MRNA vaccine, although some remained seronegative. The
distribution of antibody response by immunocompromising condition in several recent studies [9 is summarized in Figure 1.

Emerging data suggest an additional COVID-19 vaccine dose in immunocompromised people, typically administered at least
28 days after completion of the primary series, increases antibody response: in small observational studies of solid organ
transplant recipients (60-63) or hemodialysis patients (64-66), 33%-54% of persons who had no detectable antibody response
to an initial two-dose mRNA vaccine series developed an antibody response to an additional dose of a COVID-19 vaccine. A
recently published randomized controlled trial demonstrated substantial increases in serologic immune response to a third
dose of Moderna’s mRNA vaccine compared with placebo among solid organ transplant recipients who previously received a
two-dose series of that vaccine.(67) While these studies evaluated serologic immune response to an additional vaccine dose,
the clinical impact of an additional dose on acquisition, severity, and infectiousness of infections in fully vaccinated
immunocompromised persons is not yet known.

Table 2. Effectiveness of COVID-19 Primary Series Vaccination Against SARS-CoV-2 Infection and Symptomatic Disease among
Immunocompromised Persons

Country Population Vaccine Outcome Dominant Vaccine Vaccine
Variant(s) Effectiveness Effectiveness
in Ic in
Population Comparison
Population*
United Veterans 218 years taking Pfizer- SARS-CoV-2 Unknown 69%'(44-83) No
States** immunosuppressive BioNTech or _ infection comparison
medications for inflammatory Moderna

bowel disease

United Solid organ transplant Pfizer- SARS-CoV-2 Ancestral = 81%?(50-95) No
States’ —_ recipients BioNTech, infection strain, comparison
Moderna, Alpha
or Janssen
Israel*+ General population >16 years Pfizer- SARS-CoV-2 Ancestral 71%'(37-87) 90%(79-95)
BioNTech infection strain,
Alpha
Symptomatic 75%'(44-88) 94%(88-97)
disease
Qatar®? —_ Kidney transplant recipients Pfizer- SARS CoV-2 Alpha, 47%7(0-74) No
BioNTech or _ infection Beta comparison
Moderna
Severe, critical, 72%?(0-91)
or fatal COVID-
19 disease
United Hospitalized patients >18 years _ Pfizer- Hospitalization Ancestral 59%(12-81) 91%(86-95)
States*® BioNTech or strain,
Moderna Alpha

IC: Immunocompromised

* In the Israeli study, the comparison is with overall vaccine effectiveness (i.e., vaccine effectiveness in the entire study
population, including those with immunocompromising conditions). In the U.S. study, the comparison is with vaccine
effectiveness among members of the study population without immunocompromising conditions.
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The 95% confidence interval for each estimate of vaccine effectiveness is displayed in parentheses following the estimate.

1>7 days after second dose
?>14 days after second dose

Figure 1:

Percent of subjects with antibody response after two mRNA vaccine
doses by immunocompromising condition and study (n=63)

-o Y

Controls:
O
80.0 @ 3
6

95%-100%
60.0 ®
OD
20.0 O

Darker blue color is
hematologic cancers

Percent with antibody
response (%)

[ Cancer } [ Hemodialysis ] Organ Transplant | |

Immunosuppressive }
Therapies

*The studies displayed in Figure 1 represent the results of a literature review conducted by the Advisory Committee on
Immunization Practices’ COVID-19 Vaccines Work Group and are current as of July 21, 2021. Numerous additional studies of
antibody response to COVID-19 vaccination in various immunocompromised populations have been published since that date
and are not captured here.

Vaccine immunogenicity and effectiveness of heterologous (mixed) dosing regimens

Multiple small studies from Europe have examined the immunogenicity of a heterologous or ‘mixed’ series of COVID-19
vaccines. These studies found that receipt of a dose of AstraZeneca’s adenovirus vector vaccine followed by a dose of an
mRNA vaccine (most frequently Pfizer-BioNTech) induced a robust immune response (70-72) and was at least as
immunogenic as two doses of MRNA vaccines by most measures of immune response.(73-79) One study examined vaccine
effectiveness of this heterologous series and estimated an effectiveness of 88% against any SARS-CoV-2 infection two weeks
following the mRNA (second) dose.(80) Only one study examined a heterologous series in which the mRNA vaccine was the
priming (first) dose; this study found that a dose of Pfizer-BioNTech vaccine followed by a dose of AstraZeneca vaccine did not
achieve non-inferiority of immune response when compared with two doses of Pfizer-BioNTech.(81) A single study to date
examined heterologous dosing with a primary mRNA vaccine series followed by a dose of the Janssen adenovirus vector
COVID-19 vaccine in four subjects and noted substantially increased immune response against SARS-CoV-2 after the third
dose.(82)

Vaccine-induced neutralizing antibody activity

Sera from mRNA COVID-19 vaccine (both Pfizer-BioNTech and Moderna) recipients have demonstrated minimal to large
reductions in antibody neutralization activity against a variety of mutations, as reviewed in VIEW-Hub [4 . Two related
systematic reviews and meta-analyses have also been published (83, 84); however, these reviews do not include all available
neutralization studies of the Delta variant with sera from people who received mRNA vaccines or the Janssen vaccine.(85-96)
Across studies of VOCs, the greatest reductions were observed for Beta, followed by Gamma and Delta; reductions for Alpha
were minimal. The E484K/Q and L452R mutations alone or in combination with other mutations in the receptor binding
domain have been shown to account for the majority of the reduction in vaccine-induced neutralizing antibody activity for the
Beta, Gamma, and Delta variants.(97-103) Alpha and lota variants with E484K mutations, which have been detected in the
United Kingdom, United States, and other countries, have shown further reductions in neutralization above Alpha and lota
alone, respectively.(87, 97, 104-109) For two-dose COVID-19 vaccines, multiple studies have shown greater neutralization
against variants after the second dose (i.e. among fully vaccinated people) compared with after the first dose alone.(88, 91, 97,
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Robust correlation has been demonstrated between vaccine efficacy and neutralizing antibody levels induced by different
vaccines.(119, 120) Based on evidence from clinical trials, the correlate of protection, or antibody threshold providing
protection against severe disease, has been estimated to be much lower than that required for protection against confirmed
infection.(120) However, in the absence of an accepted antibody threshold that correlates with protection, it is difficult to fully
predict how reduced neutralizing activity may affect COVID-19 vaccine effectiveness. Some variants may reduce neutralizing
antibody levels to near or below the protective threshold, resulting in lowered vaccine efficacy, increased infections in
vaccinated persons, and shortened duration of immunity, and others may not be significant.

Vaccine-induced cellular immunity

Several studies have assessed CD4+ and CD8+ T cell responses from Modema or Pfizer-BioNTech vaccine recipients to the
ancestral SARS-CoV-2 strain compared with the Alpha, Beta, Gamma, and Epsilon variants; these studies observed modest or
no defects in cellular immune recognition of the variants.(112, 116, 121-126) Thus, cellular immunity may help limit disease
severity in infections caused by variants that partially escape neutralizing antibodies. Variations in the genes encoding human
leukocyte antigens have been observed to result in variation of the T cell response to specific SARS-CoV-2 variants, which may
impact different subpopulations differently based on genetic prevalence of these variations.(127-132) There are currently no
studies of vaccine-induced cellular immunity against the Delta variant.

Older adults and long-term care facility residents

Multiple studies have noted reduced vaccine effectiveness in older adults (260 years) (38, 133-135) or residents of long-term
care facilities, compared with general population estimates.(136-138) Compared with younger individuals, persons aged >80
years have been noted to have reduced T-cell responses, lower neutralizing antibody levels, and less potential antibody
diversity (somatic hypermutation), potentially giving this group increased risk for susceptibility to SARS-CoV-2 infection in
vaccinated people. (139) Two studies have observed poor antibody response to the Pfizer-BioNTech vaccine among nursing
home residents compared with staff (140, 141); one study noted 38% of nursing home residents had undetectable antibodies
to the Beta variant at 2-4 weeks after the second dose of Pfizer-BioNTech vaccine, compared with 12% with Moderna vaccine.
(140) Another study showed declining antibody levels among nursing home residents, with 72% of residents having
undetectable neutralizing antibody levels at 6 months post-vaccination with Pfizer-BioNTech.(142)

Duration of protection

Immunogenicity of COVID-19 vaccines has been demonstrated out to 6-8 months after vaccination.(86, 143) At 2-3 months
post vaccination, two studies have shown lower neutralizing titers, including against the Beta and Delta variants, for Janssen
(an adenovirus vector vaccine) compared with the mRNA vaccines.(144, 145) Two studies have shown a combined impact of
waning antibody levels and reduced neutralization of variants; six months after receiving the Moderna vaccine, neutralizing
antibody levels were reduced but sufficient to protect against the ancestral strain, while about 50% of people had
undetectable neutralization activity against Beta and Gamma compared with the ancestral strain.(146, 147) However, a small
study of people 8 months after receiving the Janssen vaccine had minimal decline in neutralizing titers against Beta, Gamma,
and Delta and there was evidence of expanded breadth of neutralizing antibody response against variants over this time
period, likely through B cell maturation.(86) More evidence is still needed in this area, including understanding potential
differences in the kinetics of immune response related to different vaccine platforms. One recent modeling study based on
immunogenicity data predicted that vaccine effectiveness against symptomatic infection caused by the Delta variant may
drop below 50% within the first year after vaccination for most current vaccines in use globally, while the majority are
protected from severe illness.(148)

Six-month clinical efficacy for the Pfizer-BioNTech vaccine shows an overall efficacy against infection of 91% and 97% efficacy
against severe illness.(149) However, a non-significant decrease of six percentage points was observed for every two months
27 days post-vaccination, from 96% at 27 days to <2 months, 90% at 2 to <4 months, and 84% at 4 to <6 months. Similar
results for the Moderna vaccine have not yet been published, but data from the manufacturer [@ cite 93% overall efficacy up
to 6 months.

Several recent studies have noted decreases over time in the effectiveness of COVID-19 vaccines against SARS-CoV-2
infection. A study of U.S. long-term care residents, who were among the first groups in the United States to be vaccinated,
found effectiveness of mRNA vaccination against infection declined from 75% in March-May 2021 to 53% in June-July 2021.
(150) A study of adults in one U.S. state found a decline in vaccine effectiveness against SARS-CoV-2 infection from 92% the
week of May 3, 2021 to 80% the week of July 19, 2021.(151) Two studies in large U.S. health systems examined mRNA vaccine
effectiveness longitudinally from December 2020 and January 2021 through July 2021 and August 2021 and noted marked
declines over this neriod (40. 152): similarlv. a large nonulation-hased studv in the UK identified decreases in effectiveness of
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Pfizer-BioNTech vaccination over 4-5 months following the second dose.(153) Observed changes in vaccine effectiveness
against infection with SARS-CoV-2 may reflect reduced vaccine performance against the Delta variant, waning immunity from
primary vaccination, or other unmeasured confounders. In addition, as people at the highest risk of SARS-CoV-2 infection
were generally vaccinated first, observational studies of duration of immunity may be subject to confounding by risk status.
Importantly, data as of July 2021 confirm sustained high effectiveness of full MRNA vaccination against COVID-19
hospitalization, even up to 6 months post-vaccination.(151, 154)

A retrospective cohort study in a large healthcare system in Israel noted a 2.3-fold increased risk for infection among fully
vaccinated persons who were vaccinated with Pfizer-BioNTech in January vs. April 2021.(155) A similar study observed a
higher rate (2.4% v. 1.1%, OR=2.2) of infection in fully vaccinated persons who received the second Pfizer-BioNTech dose 25
months ago compared with those who received it <5 months ago, with higher magnitude of difference with increasing age.
(156)

Infections in fully vaccinated persons: clinical implications and transmission

As expected, because no vaccines is 100% effective, infections in fully vaccinated persons (e.g. breakthrough infections) have
been observed, albeit at much lower rates than infections among unvaccinated persons; vaccine effectiveness against severe
disease remains high. From January through June 2021, COVID-NET data from laboratory-confirmed COVID-19-associated
hospitalizations in adults >18 years of age for whom vaccination status is known showed 3% of hospitalizations occurred in
fully vaccinated persons. In general, symptoms and duration of illness in infections among fully vaccinated persons have been
attenuated compared with cases among unvaccinated people.(157) CDC conducts nationwide monitoring of infections in fully
vaccinated persons resulting in hospitalization or death. Among hospitalized or fatal cases reported to CDC as of August 30,
2021, 70% of hospitalized cases and 87% of fatal cases of COVID-19 in fully vaccinated persons were in persons aged 65 years
or older. Infections in fully vaccinated persons may be associated with lower antibody levels compared with those who
maintain protection, as shown ina study of fully vaccinated healthcare workers in Israel with infections caused by the Delta
variant.(158) However, infection in a fully vaccinated person may boost immunity; four weeks after an outbreak in a long-term
care facility, fully vaccinated residents who experienced SARS-CoV-2 infections were found to have significantly higher
antibody levels than vaccinated individuals who did not experience SARS-CoV-2 infections.(159)

The proportions of VOCs observed among cases in fully vaccinated persons has been similar to that observed in CDC's
national genomic surveillance,(160) but interpretation of these data are challenging because of local variation and changes in
variant proportions over time. An Israeli study of VOC infections in adults fully vaccinated with Pfizer-BioNTech vaccine
compared with unvaccinated matched controls, during a time when Alpha was the dominant strain and Beta was detected in
<1% of all specimens, found a higher proportion of Beta in fully vaccinated cases (matched odds ratio = 8.0) and a higher
proportion of Alpha in partially vaccinated cases (matched odds ratio = 2.6), though small sample sizes, especially for Beta,
were noted as a limitation.(161) Results of a study from Maryland showed that variants with E484K substitutions (e.g., Beta,
Gamma) were associated with increased odds of SARS-CoV-2 infection (OR=2.0) in fully vaccinated persons and infection in
fully vaccinated persons associated with hospitalization (OR=2.6), while L452R substitutions (e.g., Delta) were not.(162)
However, a study from Houston, Texas observed that Delta caused a significantly higher rate of infections in fully vaccinated
people compared with infections from other variants, but noted that only 6.5% of all COVID-19 cases occurred in fully
vaccinated individuals(163); similar findings were noted in India.(96)

In studies conducted before the emergence of the Delta variant, data from multiple studies in different countries suggested
that people vaccinated with mRNA COVID-19 vaccines who develop COVID-19 generally have a lower viral load than
unvaccinated people.(157, 165-169) This observation may indicate reduced transmissibility, as viral load has been identified as
a key driver of transmission.(170) Studies from multiple countries found significantly reduced likelihood of transmission to
household contacts from people infected with SARS-CoV-2 who were previously vaccinated for COVID-19.(171-176) For the
Delta variant, early data indicate vaccinated and unvaccinated persons infected with Delta have similar levels of viral RNA and
culturable virus detected, indicating that some vaccinated people infected with the Delta variant of SARS-CoV-2 may be able to
transmit the virus to others.(163, 164, 177-180) However, other studies have shown a more rapid decline in viral RNA and
culturable virus in fully vaccinated people (96, 177, 180-182). One study observed that Delta infection in fully vaccinated
persons was associated with significantly less transmission to contacts than persons who were unvaccinated or partially
vaccinated.(181)

Together, these studies suggest that vaccinated people who become infected with Delta have potential to be less infectious
than infected unvaccinated people. However, more data are needed to understand how viral shedding and transmission from
fully vaccinated persons are affected by SARS-CoV-2 variants, time since vaccination, and other factors, particularly as
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transmission dynamics may vary based on the extent of exposure to the infected vaccinated person and the setting in which
the exposure occurs. Additional data collection and studies are underway to understand the extent and duration of
transmissibility of Delta variant SARS-CoV-2 in the United States and other countries.

Conclusions

COVID-19 vaccines currently approved or authorized in the United States have been shown to provide considerable
protection against severe disease and death caused by COVID-19. These findings, along with the early evidence for reduced
levels of viral mRNA and culturable virus in vaccinated people who acquire SARS-CoV-2 infection, suggest that any associated
transmission risk is substantially reduced in vaccinated people: even for Delta, evidence suggests fully vaccinated people who
become infected are infectious for shorter periods of time than unvaccinated people infected with Delta. While vaccine
effectiveness against emerging and other SARS-CoV-2 variants will continue to be assessed, available evidence suggests that
the COVID-19 vaccines approved or authorized in the United States offer substantial protection against hospitalization and
death from emerging variants, including the Delta variant. Data suggest lower vaccine effectiveness against laboratory-
confirmed illness and symptomatic disease caused by the Beta, Gamma, and Delta variants compared with the ancestral
strain and Alpha variant. Early data also find some decline in vaccine effectiveness against SARS-CoV-2 infection over time,
although in fall 2021, 9 months after the start of the U.S. COVID-19 vaccination program, vaccination remains highly protective
against hospitalization with COVID-19.

Evidence suggests the U.S. COVID-19 vaccination program has substantially reduced the burden of disease in the United
States by preventing serious illness in fully vaccinated people and interrupting chains of transmission. Vaccinated people can
still become infected and have the potential to spread the virus to others, although at much lower rates than unvaccinated
people. The risks of SARS-CoV-2 infection in fully vaccinated people are higher where community transmission of the virus is
widespread. Current efforts to maximize the proportion of the U.S. population that is fully vaccinated against COVID-19
remain critical to ending the COVID-19 pandemic.

*Note: This brief summarizes evidence related to vaccines approved or authorized for emergency use in the United States. In
specific circumstances, CDC guidance for fully vaccinated people can also be applied to COVID-19 vaccines that have been
listed for emergency use by the World Health Organization (e.g. AstraZeneca/Oxford) and to some vaccines used for U.S.
participants in COVID-19 vaccine trials.

Previous Updates

Updates from Previous Content Vv

As of July 27, 2021

« Data were added from studies published since the last update that demonstrate currently authorized MRNA
vaccines provide protection against variants of concern, including the Delta strain that is now predominant in the
United States. Vaccine effectiveness against hospitalization and death is high for all current SARS-CoV-2 variants;
emerging data suggest lower effectiveness against confirmed infection and symptomatic disease caused by the
Beta, Gamma, and Delta variants compared with the ancestral strain and the Alpha variant.

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55.

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57.

58.

59.

60.

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=

62.

63.

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medRxiv. 2021;https://www.medrxiv.org/content/10.1101/2021.07.28.21261159v1 [4 .

Nanduri §S, Pilishvili T, Derado G, et al. Effectiveness of Pfizer-BioNTech and Moderna Vaccines in Preventing SARS-
CoV-2 Infection Among Nursing Home Residents Before and During Widespread Circulation of the SARS-CoV-2
B.1.617.2 (Delta) Variant — National Healthcare Safety Network, March 1-August 1, 2021. MMWR Morb Mortal
Wkly Rep. 2021;ePub: 18 August 2021. DOI: http://dx.doi.org/10.15585/mmwr.mm7034e3 [4 .

Rosenberg ES, Holtgrave DR, Dorabawila V, et al. New COVID-19 Cases and Hospitalizations Among Adults, by
Vaccination Status — New York, May 3-July 25, 2021. MMWR Morb Mortal Wkly Rep. 2021;ePub: 18 August 2021.
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Puranik A, Lenehan Pj, Silvert E, et al. Comparison of two highly-effective mRNA vaccines for COVID-19 during
periods of Alpha and Delta variant prevalence. medRxiv.
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survey/finalfinalcombinedve20210816.pdf 4.

Tendforde MW, Self WH, Naioti EA, et al. Sustained Effectiveness of Pfizer-BioNTech and Moderna Vaccines Against
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Israel A, Merzon E, Schaffer AA, et al. Elapsed time since BNT162b2 vaccine and risk of SARS-CoV-2 infection in a
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Thompson MG, Burgess JL, Naleway AL, Tyner H, Yoon SK, Meece J, et al. Prevention and Attenuation of Covid-19
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Bergwerk M, Gonen T, Lustig Y, Amit S, Lipsitch M, Cohen C, et al. Covid-19 Breakthrough Infections in Vaccinated
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Muller L, Andree M, Ostermann PN, et al. SARS-CoV-2 infection in fully vaccinated individuals of old age strongly
boosters the humoral immune response. medRxiv.
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Centers for Disease Control and Prevention. COVID-19 Vaccine Breakthrough Infections Reported to CDC — United
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Kustin T, Harel N, Finkel U, Perchik S, Harari S, Tahor M, et al. Evidence for increased breakthrough rates of SARS-
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Feder KA, Patel A, Vepachedu VR, et al. Association of E484K and L452R spike protein mutations with SARS-CoV-2
infection in vaccinated persons—Maryland, January - May 2021. medRxiv.
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Musser JM, Christensen PA, Olsen Rj, et al. Delta variants of SARS-CoV-2 cause significantly increased vaccine
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Brown CM, Vostok J, Johnson H, Burns M, Gharpure R, Sami S, et al. Outbreak of SARS-CoV-2 Infections, Including
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McEllistrem MC, Clancy CJ, Buehrle DJ, Lucas A, Decker BK. Single dose of a MRNA SARS-CoV-2 vaccine is associated
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Petter E, Mor O, Zuckerman N, et al. Initial real world evidence for lower viral load of individuals who have been
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de Gier B, Andeweg S, Joosten R, Ter Schegget R, Smorenburg N, van de Kassteele J, et al. Vaccine effectiveness
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Harris RJ, Hall JA, Zaidi A, Andrews NJ, Dunbar JK, Dabrera G. Effect of Vaccination on Household Transmission of
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Layan M, Gilboa M, Gonen T. Impact of BNT162b2 vaccination and isolation on SARS-CoV-2 transmission in Israeli
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Salo J, Hagg M, Kortelainen M, et al. The indirect effect of mRNA-based Covid-19 vaccination on unvaccinated
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Shah A, Gribben C, Bishop J, et al. Effect of vaccination on transmission of COVID-19: an observational study in
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Chia PY, Ong SWx, Chiew C, et al. Virological and serological kinetics of SARS-CoV-2 Delta variant vaccine-
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Griffin JB, Haddix M, Danza P, et al. SARS-CoV-2 Infections and Hospitalizations Among Persons Aged 216 Years, by
Vaccination Status — Los Angeles County, California, May 1-July 25, 2021. MMWR Morb Mortal Wkly Rep.
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Riemersma KK, Grogan BE, Kita-Yarbro A, et al. Shedding of Infectious SARS-CoV-2 Despite Vaccination when the
Delta Variant is Prevalent - Wisconsin, July 2021. medRxiv.
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Shamier MC, Tostmann A, Bogers S. Virological characteristics of SARS-CoV-2 vaccine breakthrough infections in
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China. medRxiv. 2021;https://www.medrxiv.org/content/10.1101/2021.08.12.21261991v1 [4 .

Ong SWX, Chiew CJ, Ang LW, et al. Clinical and Virological Features of SARS-CoV-2 Variants of Concern: A
Retrospective Cohort Study Comparing B.1.1.7 (Alpha), B.1.315 (Beta), and B.1.617.2 (Delta). Preprints with The
Lancet. 2021;https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3861566 [4 .

Previous Updates vy

As of May 27, 2021

Data were added from studies published since the last update that further demonstrate currently authorized
COVID-19 vaccines are effective against SARS-CoV-2 infection, symptomatic and severe disease, and hospitalization
with COVID-19.

Data were added suggesting that currently authorized mRNA vaccines provide protection against variants of
concern, including the B.1.1.7 strain that is predominant in the United States.

Data were added from studies published since the last update that further demonstrate people who are fully
vaccinated with a currently authorized mRNA vaccine are protected against asymptomatic infection and, if
infected, have a lower viral load than unvaccinated people.

Last Updated Sept. 15, 2021
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DEPARTMENT OF THE NAVY
BUREAU OF MEDICINE AND SURGERY
7700 ARLINGTON BOULEVARD
FALLS CHURCH VA 22042

IN REPLY REFER TO

6320
Ser M44/21UM401
22 Sep 21

From: Chief, Bureau of Medicine and Surgery
To: Deputy Chief of Naval Operations, Manpower, Personnel, Training, and Education (N1)

Subj: DISEASES TARGETED WITH MANDATORY VACCINATIONS FOR UNITED
STATES NAVY ACTIVE DUTY AND RESERVE PERSONNEL

1. Subject matter experts at the Bureau of Medicine and Surgery have compiled the below facts
on certain mandatory vaccines for United States (U.S.) Navy Active Duty and Reserve
personnel. The information below provides some of the scientific and medical rationale for the
vaccine requirements for vaccine-preventable diseases that would otherwise create risk to the
readiness of the Force.

2. Coronavirus Disease 2019 (COVID-19)

a. Means of infection and infectivity. Person-to-person transmission via respiratory fluids,
composed mainly of respiratory droplets and aerosol particles. Basic reproduction numbers (i.e.,
the number of people who become ill due to exposure to a single case) are estimated to be 2.8 for
the original strain, 4-5 for the Alpha variant, and 5-8 for the Delta variant. In other words, every
case of Delta variant COVID-19 can infect 5-8 people if effective countermeasures are not
employed.

b. Disease’s specific harm to health. COVID-19 symptoms are extremely unpredictable, and
range from non-existent (asymptomatic) to death. The most common symptoms are: fever or
chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches,
headache, loss of taste or smell, sore throat, congestion, nausea or vomiting, and diarrhea. These
more minor symptoms result in clinic visits, time off work, reduced productivity, possible
temporary incapacitation (requiring bed rest). Most serious cases may require hospitalization,
the need for oxygen support, and mechanical ventilation. Between 17 December 2020 and 31
August 2021, six Sailors and one Marine have died due to COVID-19; none of them were fully
immunized.

(1) The risk of complications from COVID-19 illness is significant. A recent Center for
Disease Control and Prevention (CDC) report showed COVID-19 patients had nearly 16 times
the risk for myocarditis compared with patients who did not have COVID-19, and this risk was
higher in younger age groups.

(2) In addition, there is a significant risk of persistent COVID symptoms after recovery
from acute illness, or “long COVID.” A recent study found that in patients who had recovered
from COVID-19, 87.4% reported persistence of at least one symptom, particularly fatigue and
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dyspnea at an average of 60 days after symptoms onset. Another found that nearly 2/3 of people
hospitalized with COVID-19 still had symptoms 6 months later.

c. Treatment required and level of medical treatment facility capable of delivering that
treatment. While mild cases may only require isolation and routine symptomatic care, severe
cases may rapidly require intensive resources (Role 3 hospital with Intensive Care Unit (ICU)
level care and mechanical ventilation) that are not routinely available in a deployed setting. A
recent study of over 43,000 COVID-positive patients in England showed the rate of
hospitalization within 14 days of testing was 2.2% for the Alpha variant and 2.3% for the Delta
variant (74% were unvaccinated).

d. Efficacy/effectiveness of available vaccine(s). In large phase III trials, the Food and Drug
Administration (FDA) approved COVID-19 vaccine was shown to have over 94% efficacy at
preventing symptomatic COVID-19. For the same vaccine, against the Delta variant in a real
world setting, studies show 88% effectiveness against symptomatic disease, to include
hospitalization and death. Nationally in the United States, per the CDC, from January through
August 2021, the unvaccinated comprised over 99% of all hospitalized COVID patients (over 1.6
million) as well as over 99% of all COVID-19 deaths (over 264,000). There have been zero
COVID-19 deaths of Sailors or Marines among those fully immunized, and zero deaths of
Sailors or Marines due to vaccination administration.

e. Likelihood of infection if unvaccinated. In a recent (24 Aug 2021) CDC report of over
43,000 SARS-CoV-2 infections in Los Angeles County, California (population approx. 9.6M),
over 71% of the infections were unvaccinated and over 85% of hospitalizations were
unvaccinated. The same study reported infection and hospitalization rates among unvaccinated
persons were 4.9 times and 29.2 times the rates of those for fully vaccinated people, respectively.
According to current surveillance data, nearly 87% of hospitalized Department of the Navy
(DON) Active Duty COVID-19 cases since 17 December 2020 are among unvaccinated service
members. For DON Service members who had COVID-19 since December 2020, surveillance
data indicates that hospitalization rates are approximately 500 per 100,000 cases, which is
substantially higher than for influenza (see paragraph 2b).

f. Other methods of prevention. For diseases transmitted by respiratory droplets and aerosol
particles such as COVID-19, the CDC recommends non-pharmaceutical interventions (NPI) in
addition to vaccination. NPIs recommended by the CDC to avoid contracting or spreading
COVID-19 have been categorized as either personal or community based. Personal interventions
comprise respiratory hygiene (covering the mouth and nose during coughing and sneezing),
avoiding touching the face, frequent hand washing, cleaning and disinfecting objects and
surfaces that are frequently touched, avoiding sick people, and self-quarantine when a person
feels unwell. Community-based actions include public education through a variety of
communication strategies, social distancing (6 feet), wearing facemasks, ensuring adequate
ventilation of indoor spaces, and restrictions on public gatherings.

g. Efficacy of non-pharmaceutical interventions. Despite the ability of NPIs to prevent
respiratory virus transmission, there are very limited data available on their effectiveness at the
individual level. Data on the effectiveness of NPIs implemented as community-wide mandates

2
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(where NPI impacts both source control and personal protection) would not be applicable at the
individual level.

(1) Recent studies have shown efficacy of mask wearing to prevent COVID-19. During a
COVID-19 outbreak on the USS THEODORE ROOSEVELT, persons who wore masks
experienced a 70% lower risk of testing positive for SARS-CoV-2 infection. Similar reductions
have been reported in case contact investigations when contacts were masked and in household
clusters in which household members were masked.

(2) However, in order to be effective, NPI must be implemented rigorously and
continuously, and breaches in implementation are common. This is particularly true in
communal environments such as aboard ships, in barracks, or in field situations; high rates of
transmission have been documented in schools and household settings. One study during a
recent mask mandate found that 90% of 5,893 individuals were observed not wearing a mask or
not wearing it correctly, despite 75.9% of those individuals self-reporting always wearing a mask
in public.

(3) Similarly, NPI such as masks provide measures of community protection, as described
above, only while they are in use. Because the scientific and medical communities predict that
SARS-CoV-2 will remain in global circulation as an endemic virus, the risk to the Force
associated with COVID-19 in unvaccinated personnel may exist in perpetuity.

h. Scientific and Medical opinion on whether non-pharmaceutical interventions, alone or
in concert, will be successful in meeting the compelling government interest. Any combination
of NPI, in the absence of vaccination, are not likely to be effective at preventing COVID-19
outbreaks and their resulting impacts on the Navy’s mission, especially in the setting of the
highly contagious Delta variant. Unlike NPI, vaccination provides its full measure of protection
in an enduring capacity, subject to potential boosters as recommended by the FDA. Vaccination
is not subject to reductions in efficacy due to incomplete implementation as with NPI. For this
reason, vaccination is significantly superior to NPI, and mask wearing, for preventing respiratory
infections such as COVID-19, especially when only implemented at the individual level and not
by the entire community.

3. Influenza

a. Means of infection. Person-to-person transmission via respiratory droplets. Basic
reproduction numbers are estimated to be 0.9-2.1, which means, on average, a person infected
with influenza will spread the virus to 1-2 other people, if no additional protective measures are
in place.

b. Disease’s specific harm to health. Typical symptoms include: fever, cough, sore throat,
runny nose, muscle aches, headaches, fatigue, and vomiting / diarrhea (more common in children
than adults). This results in clinic visits, time off work, reduced productivity, possible temporary
incapacitation (requiring bed rest), and viral shedding, potentially infecting those who come in
contact with the person. Hospitalization is rare among young adults with influenza, 3-7 per
100,000 age 18-49. The most common complications of influenza include secondary bacterial

3
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pneumonia, exacerbations of underlying respiratory conditions, otitis media,
laryngotracheobronchitis, and bronchitis. Other complications may include primary pneumonia,
encephalitis, aseptic meningitis, transverse myelitis, myocarditis, pericarditis, and Guillain-Barré
syndrome.

c. Treatment required and level of medical treatment facility capable of delivering that
treatment. For mild cases, rest at home /in quarters (in isolation), oral rehydration, antipyretics,
and medications to target symptoms. For severe cases or those with complications,
hospitalization (role 3 hospital, minimum) and ICU-level care with mechanical ventilation may
be required.

d. Efficacy of available vaccine(s). Although influenza vaccine effectiveness is variable from
season to season, since 2003, on average it has been 40% (range 10-60%). In addition, influenza
vaccination has been shown in several studies to reduce severity of illness in people who get
vaccinated but still get influenza illness. Influenza vaccination can also reduce transmission of
the virus, thus protecting family members, co-workers, and other contacts from getting sick.
Some of these contacts may be more vulnerable to serious influenza illness, like babies and
young children, the elderly, and those with certain chronic health conditions.

e. Periodicity of vaccine boosters. Annual vaccination is required due to changes in the
circulating viruses.

f. Likelihood of infection if unvaccinated. If unvaccinated for influenza, a Sailor will have a
higher risk of contracting the disease and transmitting it to co-workers. According to the Centers
for Disease Control and Prevention, the estimated annual incidence of influenza infection is
approximately 8% (varying from 3% to 11%); approximately half of these cases would be
symptomatic. However, outbreaks can be explosive, with attack rates exceeding 60% over
periods as short as 10 days.

g. Other methods of prevention. For diseases transmitted by respiratory droplets such as
influenza, the CDC recommends NPI in addition to vaccination. NPIs recommended by the
CDC to avoid contracting or spreading respiratory infections have been categorized as either
personal or community based. Personal interventions comprise respiratory hygiene (covering the
mouth and nose during coughing and sneezing), avoiding touching the face, frequent hand
washing, cleaning and disinfecting objects and surfaces that are frequently touched, avoiding
sick people, and self-quarantine when a person feels unwell. Community-based actions include
public education through a variety of communication strategies, social distancing (6 feet),
ensuring adequate ventilation of indoor spaces, and restrictions on public gatherings. The use of
masks may be appropriate in certain situations such as during periods of high community
transmission and when an individual or contact is immunocompromised.

h. Efficacy of other methods of prevention. Despite the potential for NPIs to prevent
respiratory virus transmission, there are very limited data available on their effectiveness at the
individual level. Data on the effectiveness of NPIs implemented as community-wide mandates
(where NPI impacts both source control and personal protection) would not be applicable at the
individual level.
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(1) One published observational study out of Japan regarding influenza transmission
showed the overall effectiveness of mask wearing was 8.6%, while handwashing showed a
negative association (i.e., not protective). A meta-analysis of NPIs to prevent 2009 pandemic
influenza infection showed a statistically significant protective effect for regular hand hygiene
(38%) and a statistically non-significant protective effect for facemask use.

(2) In order to be effective, NPI must be implemented rigorously and continuously, and
breaches in implementation are common. This is particularly true in communal environments
such as aboard ships, in barracks, or in field situations; high rates of transmission have been
documented in schools and household settings. One study during a recent mask mandate found
that 90% of 5,893 individuals were observed not wearing a mask or not wearing it correctly,
despite 75.9% of those individuals self-reporting always wearing a mask in public.

1. Medical opinion on whether other methods of prevention, alone or in concert, will be
successful in meeting the compelling government interest. Any combination of NPI in the
absence of vaccination are not likely to be effective at preventing influenza outbreaks and their
resulting impact on the Navy’s mission. Vaccination is not subject to reductions in efficacy due
to incomplete implementation as with NPI. For this reason, and given the limited data available,
it appears vaccination is significantly superior to NPI and mask wearing in particular, for
preventing respiratory infections such as influenza, especially when only implemented at the
individual level and not by the entire community.

4. Tetanus

a. Means of infection. The bacteria that causes tetanus, C. tetani, usually enters the body
through a wound. In the presence of anaerobic conditions, the spores germinate. Toxins are
produced and disseminated via blood and lymphatics.

b. Disease’s specific harm to health. On the basis of clinical findings, three different forms of
tetanus have been described.

(1) The most common type (more than 80% of reported cases) is generalized tetanus. The
disease usually presents with a descending pattern. The first sign is trismus, or lockjaw,
followed by stiffness of the neck, difficulty in swallowing, and rigidity of abdominal muscles.
Other symptoms include elevated temperature, sweating, elevated blood pressure, and episodic
rapid heart rate. Spasms may occur frequently and last for several minutes. Spasms continue for
3 to 4 weeks. Complete recovery may take months.

(2) Localized tetanus is an uncommon form of the disease in which patients have
persistent contraction of muscles in the same anatomic area as the injury. These contractions
may persist for many weeks before gradually subsiding. Localized tetanus may precede the
onset of generalized tetanus, but is generally milder.
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(3) Cephalic tetanus is a rare form of the disease, occasionally occurring with otitis media
in which clostridium tetani is present in the flora of the middle ear or following injuries to the
head. There is involvement of the cranial nerves, especially in the facial area.

(4) Complications of tetanus are common. Laryngospasm or spasm of the muscles of
respiration leads to interference with breathing. Fractures of the spine or long bones may result
from sustained contractions and convulsions. Hyperactivity of the autonomic nervous system
may lead to hypertension or an abnormal heart rhythm. Nosocomial infections are common
because of prolonged hospitalization. Secondary infections may include sepsis from indwelling
catheters, hospital-acquired pneumonias, and decubitus ulcers. Pulmonary embolism is
particularly a problem in persons who use drugs and elderly patients. Aspiration pneumonia is a
common late complication of tetanus, found in 50% to 70% of autopsied cases. In recent years,
tetanus has been fatal in approximately 11% of reported cases.

c. Treatment required and level of medical treatment facility capable of delivering that
treatment. Tetanus cases must be treated in a tertiary care facility with capability to provide long
term ICU care and mechanical ventilation. Tetanus immune globulin (TIG) is recommended for
persons with tetanus. Intravenous immune globulin (VIG) contains tetanus antitoxin and may
be used if TIG is not available. Because of the extreme potency of the toxin, tetanus disease
does not result in tetanus immunity. Active immunization with tetanus toxoid should begin or
continue as soon as the person’s condition has stabilized.

d. Efficacy of available vaccine(s). Efficacy of the tetanus toxoid has never been studied in a
vaccine trial. It can be inferred from protective antitoxin levels that a complete tetanus toxoid
series has an efficacy of almost 100%. In the series of 233 cases from 2001-2008, only 7 cases
(3%) had received a complete tetanus toxoid series with the last dose within the last 10 years.

e. Periodicity of vaccine boosters. Every 10 years.

f. Likelihood of infection if unvaccinated. While tetanus is rare in the US (averaging 31
cases per year for 2000-2007), nearly all of those cases were in unvaccinated or under-vaccinated
individuals. Tetanus is much more common outside the US; in 2015 there were approximately
209,000 infections and about 59,000 deaths globally. As noted above, vaccine efficacy is high,
with over 32 times the risk for unvaccinated persons compared to vaccinated.

g. Other methods of prevention. Usual safety measures can help prevent injuries resulting in
cuts or puncture wounds from contaminated objects.

h. Efficacy of non-pharmaceutical interventions. At the individual level, such accidents are
common and have proven difficult to prevent.

1. Medical opinion on whether other methods of prevention, alone or in concert, will be
successful in meeting the compelling government interest. Safety measures alone will not likely
be successful in preventing tetanus-prone wounds.

5. Diphtheria
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a. Means of infection. Transmission of diphtheria is most often person-to-person through
respiratory droplets. Transmission may also occur from exposure to infected skin lesions or
articles soiled with discharges from these lesions. The basic reproduction number is about 2.6.

b. Disease’s specific harm to health. This may be a spectrum, but should include worst case
scenarios and likelihood of worst case scenarios. Understand that co-morbidities play a
significant role in these calculations, and our population tends to lack co-morbidities. The most
common form of diphtheria results in a membranous pharyngitis and tonsillitis, with symptoms
of fever, sore throat, malaise, and anorexia. While some patients may recover at this point
without treatment, others may develop severe disease. The patient may appear quite toxic, but
the fever is usually not high. Patients with severe disease may develop marked edema of the
submandibular areas and the anterior neck along with lymphadenopathy, giving a characteristic
“bull neck” appearance. If enough toxin is absorbed, the patient can develop severe prostration,
pallor, rapid pulse, stupor, and coma. Death can occur within 6 to 10 days. Death occurs in 5-
10% of diphtheria cases.

c. Treatment required and level of medical treatment facility capable of delivering that
treatment. In addition to supportive care, as described for influenza and COVID-19, specific
treatments include antitoxin and antibiotics. Diphtheria antitoxin, produced in horses, has been
used for treatment of respiratory diphtheria in the United States since the 1890s. Diphtheria
antitoxin is available only from CDC, through an Investigational New Drug (IND) protocol.
Diphtheria antitoxin does not neutralize toxin that is already fixed to tissues, but it will neutralize
circulating toxin and prevent progression of disease.

(1) After a provisional clinical diagnosis of respiratory diphtheria is made, appropriate
specimens should be obtained for culture and the patient placed in isolation. Persons with
suspected diphtheria should be promptly given diphtheria antitoxin and antibiotics in adequate
dosage, without waiting for laboratory confirmation. Respiratory support and airway
maintenance should also be provided as needed. Consultation on the use of and access to
diphtheria antitoxin is available through the duty officer at CDC’s Emergency Operations Center
at 770-488-7100.

(2) In addition to diphtheria antitoxin, patients with respiratory diphtheria should also be
treated with antibiotics. The disease is usually no longer contagious 48 hours after antibiotics
have been given. Elimination of the organism should be documented by two consecutive
negative cultures taken 24 hours apart, with the first specimen collected 24 hours after therapy is
completed.

d. Efficacy of available vaccine(s). Diphtheria toxoid-containing vaccine has been estimated
to have an efficacy of 97%.

e. Periodicity of vaccine boosters. Every 10 years in adults.
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 98 o0f160 PagelD 4534
Subj: DISEASES TARGETED WITH MANDATORY VACCINATIONS FOR UNITED
STATES NAVY ACTIVE DUTY AND RESERVE PERSONNEL

f. Likelihood of infection if unvaccinated. Diphtheria is rare in the U.S. (14 cases were
reported between 1996 and 2018), but it is much more common outside the U.S. where
vaccination coverage is suboptimal (4,500 cases worldwide in 2015).

g. Other methods of prevention. For diseases transmitted by respiratory droplets such as
diphtheria, the CDC recommends non-pharmaceutical interventions (NPI) in addition to
vaccination, although widespread vaccination has all but eliminated disease incidence in the U.S.
(ex. no cases in 2017 and 2018 according to World Health Organization, which largely
eliminated the subsequent need for diphtheria-related NPI in practice). NPIs recommended by
the CDC to avoid contracting or spreading respiratory infections have been categorized as either
personal or community based. Personal interventions comprise respiratory hygiene (covering the
mouth and nose during coughing and sneezing), avoiding touching the face, frequent hand
washing, cleaning and disinfecting objects and surfaces that are frequently touched, avoiding
sick people, and self-quarantine when a person feels unwell. Community-based actions include
public education through a variety of communication strategies, social distancing (6 feet),
ensuring adequate ventilation of indoor spaces, and restrictions on public gatherings. The use of
masks may be appropriate in certain situations such as during periods of high community
transmission and when an individual or contact is immunocompromised.

h. Efficacy of non-pharmaceutical interventions. While we are not aware of any studies
evaluating the efficacy of NPI specifically for diphtheria, it is likely the effectiveness of most
NPI would be similar to that for other infections transmitted by respiratory droplets.

(1) Despite the potential for NPIs to prevent respiratory disease transmission, there are
very limited data available on their effectiveness at the individual level. Data on the
effectiveness of NPIs implemented as community-wide mandates (where NPI impacts both
source control and personal protection) would not be applicable at the individual level.

(2) In order to be effective, NPI must be implemented rigorously and continuously, and
breaches in implementation are common. This particularly true in communal environments such
as aboard ships, in barracks, or in field situations; high rates of transmission have been
documented in schools and household settings. One study during a recent mask mandate found
that 90% of 5,893 individuals were observed not wearing a mask or not wearing it correctly,
despite 75.9% of those individuals self-reporting always wearing a mask in public.

i. Medical opinion on whether non-pharmaceutical interventions, alone or in concert, will be
successful in meeting the compelling government interest. Any combination of NPI in the
absence of vaccination are not likely to be effective at preventing diphtheria outbreaks and their
resulting impact on the Navy’s mission. Vaccination is not subject to reductions in efficacy due
to incomplete implementation as with NPI. For this reason, and given the limited data available,
it appears vaccination is significantly superior to NPI and mask wearing in particular, for
preventing respiratory infections such as diphtheria, especially when only implemented at the
individual level and not by the entire community.

6. Pertussis. Note: there is no pertussis vaccine preparation that does not contain tetanus and
diphtheria toxoids.
144a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 99 o0f160 PagelD 4535
Subj: DISEASES TARGETED WITH MANDATORY VACCINATIONS FOR UNITED
STATES NAVY ACTIVE DUTY AND RESERVE PERSONNEL

a. Means of infection. Transmission most commonly occurs person-to-person through
contact with respiratory droplets, or by contact with airborne droplets of respiratory secretions.
Transmission occurs less frequently by contact with an infected person’s freshly contaminated
articles. The basic reproduction number is about 5.5.

b. Disease’s specific harm to health. The clinical course of pertussis is divided into three
stages: catarrhal (with symptoms similar to the common cold lasting 1-2 weeks), paroxysmal
(with more severe cough and paroxysms of numerous rapid coughs lasting 1-6 weeks), and
convalescent (with gradual recovery over weeks to months). The most common complication
and cause of death is secondary bacterial pneumonia, occurring in 13.2% of cases. Between
2000 and 2017, 307 deaths from pertussis were reported to CDC, mostly in children. Adults may
also develop complications of pertussis, such as difficulty sleeping, urinary incontinence,
pneumonia, rib fracture, syncope, and weight loss

c. Treatment required and level of medical treatment facility capable of delivering that
treatment. Varying levels of supportive management are required, depending on severity of
disease, as with influenza and COVID-19. Antibiotics are of some value if administered early
(i.e., during the first 1 to 2 weeks of cough before coughing paroxysms begin).

d. Efficacy of available vaccine(s). Diphtheria, Tetanus, and Pertussis (DTaP) vaccine
efficacy ranged from 80% to 85%, with overlapping confidence intervals.

e. Periodicity of vaccine boosters. Every 10 years.

f. Likelihood of infection if unvaccinated. Reported pertussis incidence has been
gradually increasing in the U.S. since the late 1980s and early 1990s, and large epidemic peaks
in disease have been observed since the mid-2000s. A total of 48,277 pertussis cases were
reported in 2012, the largest number reported since the mid-1950s. Recent outbreaks of pertussis
in the U.S. were due to low vaccination rates with large numbers of vaccine refusals (over 75%
in one cluster) based on nonmedical reasons. The disease is more common outside the U.S.; an
estimated 16.3 million people worldwide were infected in 2015, with 58,700 deaths.

g. Other methods of prevention, such as non-pharmaceutical interventions. For diseases
transmitted by respiratory droplets such as pertussis, the CDC recommends non-pharmaceutical
interventions (NPI) in addition to vaccination. NPIs recommended by the CDC to avoid
contracting or spreading respiratory infections have been categorized as either personal or
community based. Personal interventions comprise respiratory hygiene (covering the mouth and
nose during coughing and sneezing), avoiding touching the face, frequent hand washing,
cleaning and disinfecting objects and surfaces that are frequently touched, avoiding sick people,
and self-quarantine when a person feels unwell. Community-based actions include public
education through a variety of communication strategies, social distancing (6 feet), ensuring
adequate ventilation of indoor spaces, and restrictions on public gatherings. The use of masks
may be appropriate in certain situations such as during periods of high community transmission
and when an individual or contact is immunocompromised.
145a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 100 of 160 PagelD 4536
Subj: DISEASES TARGETED WITH MANDATORY VACCINATIONS FOR UNITED
STATES NAVY ACTIVE DUTY AND RESERVE PERSONNEL

h. Efficacy of non-pharmaceutical interventions. While we are not aware of any studies
evaluating the efficacy of NPI specifically for pertussis, it is likely the effectiveness of most NPI
would be similar to that for other infections transmitted by respiratory droplets.

(1) Despite the potential for NPIs to prevent respiratory disease transmission, there are
very limited data available on their effectiveness at the individual level. Data on the
effectiveness of NPIs implemented as community-wide mandates (where NPI impacts both
source control and personal protection) would not be applicable at the individual level.

(2) In order to be effective, NPI must be implemented rigorously and continuously, and
breaches in implementation are common. This is particularly true in communal environments
such as aboard ships, in barracks, or in field situations; high rates of transmission have been
documented in schools and household settings. One study during a recent mask mandate found
that 90% of 5,893 individuals were observed not wearing a mask or not wearing it correctly,
despite 75.9% of those individuals self-reporting always wearing a mask in public.

i. Medical opinion on whether non-pharmaceutical interventions, alone or in concert, will
be successful in meeting the compelling government interest. Any combination of NPI in the
absence of vaccination are not likely to be effective at preventing pertussis outbreaks and their
resulting impact on the Navy’s mission. Vaccination is not subject to reductions in efficacy due
to incomplete implementation as with NPI. For this reason, and given the limited data available,
it appears vaccination is significantly superior to NPI and mask wearing in particular, for
preventing respiratory infections such as pertussis, especially when only implemented at the
individual level and not by the entire community.

7. My point of contact is Preventive Medicine, who can be
reached at .

B. L. GILLI

10
147a

Document 134 Filed 02/28/22 Page 102 of 160 PagelD 4538
DEPARTMENT OF THE NAVY
OFFICE OF THE CHIEF OF NAVAL OPERATIONS
2000 NAvY PENTAGON
WASHINGTON, DC 20350-2000

5720
Ser DNS-36G6C/21U103110
December 23, 2021

Mr. Branden M Vriens

Dear Mr. Vriens:

This is in reference to your Freedom of Information Act
(FOIA) /Privacy Act (PA) request dated December 6, 2021. Your
request was received in our office on the same day and assigned
case number DON-NAVY-2022-002169.

In the course of processing your FOIA request, this office
contacted OPNAV OfficeN1, to conduct a search for applicable
records. Accordingly, Nl has searched their database for records
relating to “All responsive records reviewed by the Deputy Chief
of Naval Operations (Manpower, Personnel, Training and
Education) (N1) in adjudicating the Request for Religious
Accommodation Through Waiver of Immunization Requirements for
EOD1 Branden M. Vriens, USN. (For ease of reference notification
of the denial was sent on 29 Nov 21 under ltr 1730 Ser
N1/116214.)” Upon review of the responsive records, it has been
determined that they are releasable in their entirety.

You have the right to an appeal within 90 calendar days
from the date of this letter. There are two ways to file an
appeal: through FOIAonline or by mail.

(1) Through FOTAonline. This will work only if you set
up an account on FOIAonline before you make the request that you
would like to appeal. To set up an account, go to FOIAonline
(this is a website that will appear as the top hit if you search
the internet for “FOIAonline”), click “Create Account” (a link
located within the blue banner at the top in the upper right
corner), enter your data into the field that subsequently
appears, and click “Save” (at the bottom left of the screen).
With your account thereby created, you will have the power to
file an appeal on FOIAonline to any request you file on
FOITAonline thereafter. To do so, locate your request (enter a
keyword or the request tracking number in the “Search for” field
on the “Search” tab), click on it, then the "Create Appeal" tab
in the left-hand column. Complete the subsequent field, click
“Save,” and FOIAonline will submit your appeal.
148a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 103 of 160 PagelD 4539

(2) By mail. Address your appeal to:

The Judge Advocate General (Code 14)
1322 Patterson Avenue SE, Suite 3000
Washington Navy Yard, DC 20374-5066

If filing an appeal by mail please provide a letter that
explains what you are appealing with any supporting arguments or
reasons you think may be worthy of consideration;

b. A copy of your initial request;

c. A copy of the letter of denial.
Also, please provide me a copy of your appeal letter at:

DONFOIA-PA@NAVY. MIL

In this instance, the fees associated with the processing
of your request are waived, but this action is not indicative of
how future requests will be handled.

For this determination, you have the right to seek dispute
resolution services from either the DoD Navy Component FOIA
Public Liaison, Mr. Chris Julka, at:
Christopher.a.julka@navy.mil, via phone: (703) 697-0031; or by
contacting the Office of Government Information Services
at: (https://ogis.archives.gov/), (202) 741-5770, ogis@nara.gov.

Questions regarding the action this office has taken during
the processing of your request may be directed to our FOIA
service center at (202) 685-0412 or via email at
DONFOIA-PA@navy.mil, and reference the FOIA tracking numbers
cited above.

Sincerely,

G. Cason
Deputy Director,
DON FOIA/PA Program Office
151a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 107 of 160 PagelD 4543

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

U.S. NAVY SEALs 1-3, on behalf of
themselves and all others similarly situated;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1, on behalf of
himself and all others similarly situated; U.S.
NAVY SEALS 4-26; U.S. NAVY SPECIAL
WARFARE COMBATANT CRAFT
CREWMEN 1-5; and U.S. NAVY DIVERS
1-3,

Plaintiffs, Case No. 4:21-cv-01236-O
Vv.

LLOYD J. AUSTIN, II, in his official
capacity as United States Secretary of
Defense; UNITED STATES
DEPARTMENT OF DEFENSE; CARLOS
DEL TORO, in his official capacity as
United States Secretary of the Navy,

Defendants.

DECLARATION OF LIEUTENANT COMMANDER ERIK V. DE SOUSA, USN

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury as follows:

1. I am over the age of eighteen and am competent to make this declaration.

2. I have served in the United States Navy for 10 years. I have the rank of Lieutenant
Commander (O-4). I received a BS in Naval Architecture from the U.S. Naval Academy in 2011
and a MS in Naval/Mechanical & Total Ship Systems Engineering from the Naval Postgraduate
School in 2018. I am currently the Program Manager’s Representative (PMR) for the
Expeditionary Fast Transport (T-EPF) shipbuilding program, an Acquisition Category (ACAT) 1

program under the purview of Supervisor of Shipbuilding, Conversion & Repair Gulf Coast, a
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 108 of 160 PagelD 4544

Naval Sea Systems Command (NAVSEA) field activity. We provide on-site, hands-on contract
oversight for new construction ships in order to ensure on-time delivery of ships to the fleet. We
operate out of the Navy Administration Building at the Austal USA shipyard in Mobile, AL, and
we also get underway for various sea trial events. I have 5 government civilians reporting to me
as well as several dozen government civilians and government contractors providing matrixed
support for testing, quality assurance, engineering, and contract management, and finance.

3. I have a sincere religious objection to receiving the COVID-19 vaccination as
mandated by the Navy and submitted a religious accommodation request on 30 August 2021. This
accommodation request was disapproved by the Chief of Naval Personnel (CNO N1) on 17
November 2021. On 01 December 2021, I appealed the disapproval by CNP to the Chief of Naval
Operations. On 14 February 2022, I received the denial of my appeal from the Chief of Naval
Operations.

4. On 22 February 2022 I submitted a renewed religious accommodation request.
According to BUPERSINST 1730.11A 9 5f(2), “When a religious accommodation request is
denied, the requestor may renew the request upon change in physical, operational or geographical
environment, or at any time in which there is a change to pertinent policy.” In my accommodation
request, I explained that my operational environment had changed since August because I have
since contracted and recovered from a mild case of COVID-19 in January 2022 and noted
widespread COVID infection among vaccinated co-workers and other military officials despite
vaccination. The BUMED letter relied on to deny my religious accommodation request was dated
in September 2021, making it outdated in light of more recent COVID-19 developments. My

religious accommodation request is attached to this declaration as Exhibit A.
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 109 of 160 PagelD 4545

5: On 24 February 2022, the Chief of Naval Personnel John B. Nowell denied my
request, claiming that my operational circumstances had not changed despite this. A copy of the
denial is attached to this declaration as Exhibit B.

6. As a result, on 25 February 2022, CDR Diane Cua stated that my previously
adjudicated religious accommodation from CNO remains in effect. My commanding officer
informed me the same day that the administrative separation process would begin next week unless
Telect to resign by 1 June 2022. A copy of this email chain is attached to this declaration as Exhibit

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and

ERIK V. DE SOUSA

correct.

Executed on February 27, 2022.
154a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page110of160 PagelD 4546

EXHIBIT A
155a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page1110f160 PagelD 4547

22 Feb 22

From: LCDR DeSousa, Erik V., USN

To: | Deputy Chief of Naval Operations (Manpower, Personnel, Training and Education)
(N1)

Via: Commanding Officer, Supervisor of Shipbuilding Conversion and Repair Gulf Coast

Subj: REQUEST FOR WAIVER OF POLICY IN SUPPORT OF RELIGIOUS PRACTICE

Ref: (a) DOD Instruction 1300.17
(b) SECNAVINST 1730.8
(c) BUPERSINST 1730.11A

Encl: (1) BUMED Itr 6320 Ser M44/21UM40232 of 28 Sep 21

(2) List of abortion-tainted vaccines compiled by the non-profit group Children of God for
Life (https://cogforlife.org/)

(3) Letter discussing ethical vaccine practices by Bishop Joseph Strickland, Diocese of
Tyler, TX

(4) Endorsement of sincerely held religious beliefs by Fr. Gabriel Mills, Christ the King
Catholic Church, Daphne, AL

(5) NAVPERS 1070/613 signed by member

(6) Chaplain memorandum for the record completed by LCDR D.E. Clark, LCDR, CHC,
USN

(7) Chaplain checklist completed by LCDR D.E. Clark, LCDR, CHC, USN

1. Per references (a) and (b), the Department of the Navy (DON) recognizes that religion can be as
integral to a person’s identity as one’s race or sex. To that extent, DON promotes a culture of
diversity, tolerance, and excellence by making every effort to accommodate religious practices
absent a compelling operational reason to the contrary. Religious medical practices include
traditional objections to receiving immunizations. It is DON policy to accommodate the traditional
observances of the religious faith practiced by individual members when these doctrines or
observances will not have an adverse impact on military readiness, individual or unit readiness, unit
cohesion, health, safety, discipline, or mission accomplishment. Immunization requirements may be
waived when requested by the member based on religious objection.

2. Iam submitting a new RA request per BUPERSINST 1730.11A which states as follows:
5f(2) When a religious accommodation request is denied, the requestor may renew
the request upon change in physical, operational or geographical environment, or at
any time in which there is a change to pertinent policy.

Since my original request for RA submitted 30AUG21, my physical and operational environments
have changed significantly in the last 4.5 months as follows:
a. I contracted the COVID-19 virus on 25JAN22 (date of positive test) with mild throat and
sinus symptoms associated with the Omicron variant and now have natural immunity that I
did not have previously.
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Case 4:21-cv-01236-O0 Document 134 Filed 02/28/22 Page 112 0f160 PagelD 4548
Subj: REQUEST FOR WAIVER OF POLICY IN SUPPORT OF RELIGIOUS PRACTICE

b. As of 18FEB22, at least 197 of 553 members in my command (combined CIVPERs and
active duty military) have contracted the COVID-19 virus despite a ~92% vaccination rate.

c. The HON Lloyd Austin (SECDEF), Gen Mark Milley (Chairman, Joint Chiefs of Staff), The
HON Carlos Del Toro (SECNAV), and many other military leaders have contracted
COVID-19 despite receiving a complete vaccination series including boosters. World-wide

reports clearly indicate current COVID-19 vaccinations do not prevent contraction or spread
of the COVID-19 virus.

d. The Omicron variant (as opposed to the original virus and subsequent variants), though
more transmissible, has significantly lower instances leading to hospitalization and almost
non-existent instances of death directly relating to COVID-19 infection.

3. Upon reading the BUMED letter dated 28SEP21 (Encl 1), but first recetved by me on 17FEB22,
in opposition to my previous request for RA, I would like to proactively address some of the
information that is contained therein as follows:

a. Per para 3, vaccines required for individual medical readiness have met the safety
requirements of the FDA. Of note, vaccines that are required for individual medical readiness have
been approved by the FDA. The only COVID-19 vaccines that are currently approved by the FDA
are “COMIRNATY” by BioNTech Manufacturing GmbH (Mainz, Germany) and “SPIKEVAX” by
Moderna, neither of which are available in the United States presently as stated in the 31 Jan 2022
letter to ModernaTX, Inc. which states:

“Although SPIKEVAX (COVID-19 Vaccine, mRNA) and Comirnaty (COVID-19
Vaccine, mRNA) are approved to prevent COVID-19 in certain individuals, within the
scope of the Moderna COVID-19 Vaccine authorization, there is not sufficient approved
vaccine available for distribution to this population in its entirety at the time of
reissuance of this EUA.”

b. Currently, all other COVID-19 vaccinations that are available to service members are
authorized by the FDA for Emergency Use Authorization (EUA) only. Per 21 USC Sec.
360bbb-3, vaccinations under EUA are voluntary, unless waived by POTUS per 10 USC
Sec. 1107a, DoDI 1300.17, DoDI 6200.02 and DoDI 6205.02.

c. The BUMED letter states that vaccinations have demonstrated effectiveness in disease
prevention. That statement may apply to other vaccinations; however, it does not apply to any of the
current COVID-19 vaccines available. The efficacy of the current COVID-19 vaccinations is based
on reducing symptoms if exposed and preventing severe illness or death. None of the COVID-19
vaccinations prevent contracting the predominant Omicron variant virus, or transmission of the
virus as evidenced by worldwide reports and current Navy COVID-19 virus positivity tracking data.

d. Per para 4, the letter states that active duty personnel will be up to date on routine
vaccinations. COVID-19 is not a routine vaccination.

e. Per para 5, the BUMED letter states that a waiver of immunization requirements would
have a detrimental effect on readiness of myself and my fellow service members. The letter does

2
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Subj: REQUEST FOR WAIVER OF POLICY IN SUPPORT OF RELIGIOUS PRACTICE

not explain how this is detrimental. The letter continues to state that primary prevention of disease
is through immunization. It is still common knowledge that COVID-19 vaccination does not
prevent the contraction or spread of COVID-19. Studies have shown natural immunity is an
effective guard against contraction, spread and symptoms that would cause hospitalization or death.

f. The BUMED letter further cites the case of USS THEODORE ROOSEVELT (CVN 71)
that had a COVID outbreak in March 2021 as an example of how an outbreak of COVID can
degrade unit readiness. This case is used by BUMED to “highlight the importance of vaccination to
both individual and unit force health protection. A similar outbreak happened to the USS
MILWAUKEE (LCS 5) in December 2021 with a crew that was 100% vaccinated. One-third of the
crew tested positive for COVID. This ship was isolated in-port, removing the unit from executing
its mission capabilities for several days. A similar COVID-19 outbreak occurred on USS HALSEY
(DDG 97) with one-third of the crew testing positive for COVID-19. Both of the latter two
outbreaks (among a list of others) clearly demonstrate that unit and mission readiness could be
negatively impacted regardless of COVID vaccination status of its sailors.

g. Per para 6, the BUMED letter states that unvaccinated individuals remain at risk for
developing COVID-19 and propagating new variants that impact the force. This statement is
inaccurate in that both vaccinated and unvaccinated individuals can develop COVID-19. Also,
studies show that vaccinated individuals are just as likely to transmit COVID and propagate
variants. Specifically, researchers using data from Israel’s Maccabi Healthcare Services found that
“those who were fully vaccinated with the Pfizer-BioNTech COVID-19 vaccine had a 13.06-fold
increased risk of developing COVID-19 from the delta variant than those who had previously
contracted and recovered from a COVID-19. The study also found that those who previously
contracted and recovered from COVID-19 had increased protection against reinfection from a
single dose of Pfizer's COVID-19 vaccine compared to those who had had a prior infection and
remained unvaccinated. Researchers calculated the 13-fold increased risk of infection based on just
238 infections among about 16,000 vaccinated people—accounting for less than 1.5% of that
group—versus 19 reinfections among roughly 16,000 study participants who had been previously
infected.” Similarly, CDC Director Rochelle Walensky said in a statement, “High viral loads
suggest an increased risk of transmission and raised concern that, unlike with other variants,
vaccinated people infected with Delta can transmit the virus....This finding is concerning and was a
pivotal discovery leading to CDC’s updated mask recommendation. The masking recommendation
was updated to ensure the vaccinated public would not unknowingly transmit virus to others,
including their unvaccinated or immunocompromised loved ones.” The BUMED letter is not up to
date with the CDC comments on vaccinated individuals being susceptible to transmitting COVID.
Therefore, it should not be used against unvaccinated personnel who are no different.

h. Per para 7, the BUMED letter states that vaccination remains the most effective means to
prevent COVID-19. However, studies show that vaccination does not prevent one from contracting
or spreading COVID. The letter does state that efficacy was tied to preventing symptomatic
COVID. It should be restated that the efficacy is not tied to preventing the contraction or
transmission of COVID. Additionally, the BUMED letter refers to the FDA-approved vaccine. The
FDA has only approved two of the five COVID-19 vaccine products, COMIRNATY on 23 Aug
2021 and SPIKEVAX on 31 Jan 2022. Of note, the other three COVID vaccine products (Pfizer-
BioNTech, Moderna, and Johnson&Johnson) remain under EUA. This statement by BUMED
implies that the FDA approved vaccine is and has been available to servicemembers. Based upon

3
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Subj: REQUEST FOR WAIVER OF POLICY IN SUPPORT OF RELIGIOUS PRACTICE

the most recent FDA letter to Moderna on 31 Jan 2022, no FDA licensed vaccine is currently
available in the U.S.

i. Per para 8, the BUMED letter states that my religious objections must be balanced against
the medical risk to me and my unit. All personnel (vaccinated or unvaccinated) are susceptible to
COVID transmission; vaccination status does not affect this fact. It has already been shown that
mission accomplishment can still be achieved despite vaccination status. Additionally, even
commands with 100% vaccination status can still be impacted by COVID, which could affect unit
readiness. Not receiving the vaccine has no measurable effect to the facts which BUMED states in
their letter. Consequently, these facts should not be held against service members that have a
sincerely held belief or religious objection.

4. The Religious Freedom Restoration Act of 1993 (RFRA) states the Government may
substantially burden an individual’s exercise of religion only if it demonstrates that the application
of the burden to the person is: (1) in furtherance of a compelling governmental interest, and (2) is
the least restrictive means of furthering that interest. The burden rests with the government to
demonstrate both factors in their entirety, not the individual requesting the exemption per DoDI
1300.17, September 1, 2020. All requests for accommodation of religious practices are to be
assessed on a case-by-case basis. My original RA request, subsequent appeal, and this new RA
request demonstrate facts that the government’s vaccination mandate is not the least restrictive
means to further the interest of mission accomplishment and unit readiness. The original
disapproval from CNP and subsequent appeal disapproval from CNO do not explain how
vaccination outweighs my sincerely held beliefs to accomplish the mission and promote good order
and discipline, nor do they explain how this would detrimentally affect me and my unit’s readiness.
Using the information provided, I have demonstrated how the COVID-19 vaccination is not the
least restrictive means available to preserve military readiness, mission accomplishment and the
health and safety of military service members. The government must show it cannot accommodate
the religious adherent while achieving its interest through a viable alternative, which is available.

5. On 3 Jan 2022, Judge Reed O’Connor issued a preliminary injunction for plaintiffs in U.S.
NAVY SEALS 1-26, et al, v. JOSEPH R. BIDEN, JR., et al. Plaintiffs had submitted RA requests
but were not provided the legal review required in evaluating their submissions. The Court noted
that the Navy utilized a “six-phase, fifty step process” wherein at Phase 1 the administrator is
instructed to update a prepared disapproval template with the requestor’s name and rank. Based
upon the boilerplate rejection template, it appears the RA review process is pre-determined and
sidesteps an individualized review process as required by law. The Judge called the Navy RA
review process “theater” stating it “merely rubber stamps each denial.” Based upon the documents
presented to the Court and the Judge’s acknowledgement of the blanket denial process of all RA
requests, I am submitting a new RA request for an individualized case-by-case review as required
under the law.

6. Pursuant to references (a) through (c), I hereby request religious accommodation from Navy
vaccination policy in order to not be injected with any abortion-tainted vaccines as listed in Encl.
(1),

including but not limited to the Johnson & Johnson, Pfizer, and Moderna COVID-19 vaccines, due
to

my religious belief that members should not be compelled to receive vaccinations which use or

4
159a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page115o0f160 PagelD 4551
Subj: REQUEST FOR WAIVER OF POLICY IN SUPPORT OF RELIGIOUS PRACTICE

contain aborted fetal cell lines in any stage of vaccine production or testing.

7. My request is based on my religious belief that innocent life is sacred from the time of
conception. By allowing ourselves to be injected with or consume any by-product of an aborted
fetus, we are complicit, regardless of how remotely, in the continued practice of abortions, as
summarized by Bishop J. Strickland in Encl (3). This sincerely held belief is corroborated in Encl.
(4) by Fr. Gabriel Mills of the Catholic Parish my family and I attend weekly as well as in Encl. (6)
by Chaplain Clark from NAS Pensacola. This request is based on additional growth in religious
practices that have greatly evolved in our family since the birth of our first child in 2017. Despite
having had several of the aforementioned vaccines administered in the past, I can no longer in good
conscience accept these vaccines or any boosters of same.

8. Additionally, based on a recent COVID-19 infection (positive test date 25JAN22), it would be
both scientifically irresponsible to take a COVID-19 vaccine at this point (lack of studies focusing
on vaccine interaction with natural antibodies) as well as morally prohibitive based on the
likelihood of causing myself harm (see 1 Corinthians 3:16-17).

9. I certify that I understand that any approved or partially approved waiver may not be appropriate
for future duty to which I may be assigned, including operational, non-operational or training
command(s), and may be suspended or withdrawn in accordance with reference (c).

10. Based upon the above arguments and enclosures in support, I respectfully request review of my
religious accommodation request. As stated by Judge O’Connor:
“The COVID-19 pandemic provides the government no license to abrogate
those [religious] freedoms. There is no COVID-19 exception to the First
Amendment. There is no military exclusion from our Constitution. ”

Very respectfully,

Date: 2022.02.22
299139375 31.2021 -06'00'

Erik V. De Sousa
LCDR USN
160a

ase 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 116 of 160 PagelD 4552
DEPARTMENT OF THE NAVY
BUREAU OF MEDICINE AND SURGERY
7700 ARLINGTON BOULEVARD
FALLS CHURCH VA 22042

IN REPLY REFER TO

6320
Ser M44/21UM40232
28 Sep 21

From: Chief, Bureau of Medicine and Surgery
To: | Deputy Chief of Naval Operations (Manpower, Personnel, Training, and Education) (N1)

Subj: REQUEST FOR RELIGIOUS ACCOMMODATION THROUGH WAIVER OF
IMMUNIZATION REQUIREMENTS ICO LT ERIK V. DeSOUSA, USN

Ref: (a) LT DeSousa’s Waiver Request of 30 Aug 21
(b) BUMED Memo, Diseases Targeted with Mandatory Vaccinations for U.S.
Navy Active Duty and Reserve Personnel of 22 Sep 21
(c) BUMED INST 6230.15B, Immunizations and Chemoprophylaxis for the Prevention
of Infectious Diseases, 7 Oct 2013
(d) SECNAVINST 1730.8B CH-1

1. Subject matter experts at the Bureau of Medicine and Surgery have reviewed reference (a).
Per reference (a), LT DeSousa objects to receiving all immunizations developed or tested using
fetal cells based on his religious beliefs.

2. Fetal embryo fibroblast cells are used to grow viruses for multiple vaccines, including
adenovirus, varicella (chickenpox), rubella (the “R” in the MMR vaccine), hepatitis A, one
preparation of rabies vaccine, two combination vaccines containing the polio vaccine virus, and
two formulations of zoster (shingles) vaccine. The FDA-approved Coronavirus Disease 2019
(COVID-19) vaccine did not require the use of any fetal cell cultures in order to manufacture the
vaccine, however, early in the development of mRNA vaccine technology, fetal cells were used
for “proof of concept” or to characterize the SARS-CoV-2 spike protein. All other vaccines,
including tetanus, diphtheria, pertussis, influenza, etc., are not derived from fetal cells. No
alternative formulations grown without fetal cells are currently available for COVID-19,
adenovirus, varicella, rubella, and hepatitis A vaccines.

3. All vaccines required for maintenance of individual medical readiness and vaccines required
for specific overseas deployments meet the safety requirements of the U.S. Food and Drug
Administration (FDA), and have demonstrated effectiveness in disease prevention.

4. Per reference (c), Active Duty and Reserve Component personnel will receive or be up-to-
date on adult routine vaccinations. Details of required vaccinations are outlined in this
instruction and are available at www.health.mil/vaccines.

5. A waiver of immunization requirements would have detrimental effects on the readiness of
both LT DeSousa and Service members who serve alongside LT DeSousa. Primary prevention
of disease through immunizations is a key enabler for maintaining force health protection and
avoiding disease-related non-battle injury, and has been the cornerstone of these efforts for
decades. Recent outbreaks of contagious viral diseases aboard Navy ships highlight the

Encl. 1
161a

Case 4:21-cv-01236-O0 Document 134 Filed 02/28/22 Page117 of 160 PagelD 4553
Subj: RELIGIOUS ACCOMMODATION REQUEST THROUGH WAIVER OF

IMMUNIZATION REQUIREMENTS ICO LT ERIK V. DeSOUSA, USN

operational impact of low levels of immunity. Diseases such as COVID-19 are highly
contagious and can rapidly degrade individual and unit readiness. In the current COVID-19
pandemic, the outbreak aboard the USS THEODORE ROOSEVELT in March 2020, resulted in
71 days of unavailability for a forward deployed aircraft carrier. There was an infection rate of
more than 26% of the crew as confirmed by laboratory testing within 5 weeks of the initial
positive case (including four hospitalizations and one death, according to data published in
Journal of The American Medical Association 11 November 2020). This outbreak resulted in
crew-wide quarantine, isolation, and repeated testing, and highlights the importance of
vaccination to both individual and unit force health protection. Additional information on the
potential impacts of vaccine-preventable diseases is provided in reference (b).

6. The scientific and medical communities believe that SARS-CoV-2 will likely remain in
global circulation as an endemic virus and a threat to the Force. The emergence of the SARS-
CoV-2 Delta variant shows that while some vaccinated personnel may transmit the virus, they
are largely protected against severe illness and death. Unvaccinated individuals remain at risk
for developing COVID-19 and propagating new variants that may adversely impact the readiness
of the Force.

7. Vaccination remains the most effective means to prevent COVID-19 (as well as influenza,
pertussis, diphtheria, tetanus, and other diseases). Optimally, vaccination should be coupled with
other countermeasures to minimize risk of infections to the Sailor’s health, co-workers’ health,
and to Navy’s mission. In large phase III trials, the FDA-approved COVID-19 vaccine
demonstrated over 94% efficacy in preventing symptomatic COVID-19. For the same vaccine,
against the Delta variant in a real world setting, studies show 88% effectiveness against
symptomatic disease, to include hospitalization and death. Additional information on the
efficacy of other vaccines is provided in reference (b).

8. Per reference (d), the religious objection of the Service member must be balanced against the
medical risk to the Service member and their military unit. The Department of Defense has a
compelling interest in mission accomplishment and safeguarding the health of military Service
members. In this case, the medical risks of not receiving required vaccines outweigh the
religious objection that LT DeSousa has stated in reference (a).

9. A waiver of required immunizations is not recommended due to the aforementioned reasons.

10. My point of contact is ******##Ak aH MIC, USN, Preventive Medicine, who can be

Deputy Chief
Business Operations

Encl. 1
163a

2 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 119 of 160 PagelD 4555

Dear Flock of East Texas,

“To know that God is not distant but close, not indifferent but compassionate, not aloof but
a merciful Father who follows us lovingly with respect for our freedom: all this is a cause of
deep joy which the alternating ups and downs of daily life cannot touch.”

Pope John Paul Il, Angelus, Third Sunday of Advent, 2003

As the Bishop of the Roman Catholic Diocese of Tyler, | wish you peace as we approach the end
of a challenging 2020 and unwavering faith as we enter 2021. We have walked together through
these difficult times. Soon we will face the availability of vaccines which we hope will alleviate
the painful consequences of COVID-19 and its spread. Along with other Christian leaders, | have
stressed the importance of ensuring that vaccines respect the dignity of human life and do not
use the remains of electively aborted children in any part of the process.

We have the responsibility to make an informed and moral choice as to the use of a particular
vaccine. The Church teaches: “Conscience must be informed and moral judgment enlightened. A
well-formed conscience is upright and truthful. It formulates its judgments according to reason,
in conformity with the true good willed by the wisdom of the Creator” (Catechism of the Catholic
Church 1783). Christians are called to form their consciences in accordance with what is true as
revealed in natural law and divine revelation and to act accordingly when deciding about the use
of a COVID-19 vaccine.

Every procured abortion murders an innocent human person. For university, government, or
industrial scientists to use materials obtained from the remains of an electively aborted child in
the research, development, testing, or production of any vaccine is immoral and constitutes
formal cooperation in evil. We must never cease to protest this practice with maximum
determination to defend the dignity and sacredness of children in the womb. They are not objects
to be used but persons to be received as gifts, our brothers and sisters. As your shepherd, | cannot
in good conscience receive a vaccine that has been produced using an aborted child. There are
ethical vaccines in development which are worth waiting for.

The instructions, which were promulgated in Dignitas Personae in 2008, say we have a duty to
ask healthcare systems to do better. In this time of Covid-19, Catholic leaders have not asked for
better. Too many have accepted the exploitation of aborted children. | urge you to reject any
vaccine that uses the remains of aborted children in research, testing, development, or
production. Testify to the truth that abortion must be rejected and make a choice that is
consistent with the dignity of every human life from conception to natural death and is rooted in
a mature faith and trust in eternal life, not fear of suffering in this life.

Encl. 3
164a

As bishop, | affirm the call from the American Association of Pro-Life Obstetricians and
Gynecologists, American College of Pediatricians, Catholic Medical Association, and Christian
Medical and Dental Associations that we should all “expect and demand vaccines that are safe,
effective, and ethically sound” (Joint Statement, December 2, 2020). Until that day, | urge all of
us to exercise patience and to educate our conscience by studying the teaching of the Church.
Then remain faithful to the truth concerning the dignity of every human life. We must prayerfully
consider how we might best conform our will to Jesus Christ and seek the good in all things for
ourselves, for our families, and for our communities. To echo Dignitas Personae, may we here in
East Texas “mobilize our consciences in favour of life.”

Most Reverend Joseph E. Strickland
Bishop of Tyler

Encl. 3
165a

Case 4:21-cv-01236-0 CPriat 134 File LI Page 121 of 160 PagelD 4557

Christ The ing UTe,

711 COLLEGE AVE. * DAPHNE, ALABAMA 36526

251-626-2343 * 251-626-3740

August 2, 2021

To Whom It May Concern:

and spiritual care over LT Erik DeSousa both as a
Roman Catholic Priest as well as their spiritual advisor. After having spoken to Erik at length
regarding the moral circumstances and obligations concerning the COVID-19 vaccinations, |
hereby confirm that they maintain insurmountable obstacles of conscience both in respect to
prudence and to justice, and that these obstacles are reasonable and are consistent with
traditional Catholic moral teaching as pertaining to the natural law. As taking the vaccinations

would constitute a violation of conscience, | hereby request that they please be excused from

the mandatory vaccination policy of the U.S. Navy and Department of Defense. LT DeSousa, in
choosing this decision to abstain from receiving the COVID-19 vaccination, will do all in his
power to protect the common good of the people he comes into contact with during the course
of his duties by using every other means at his disposal to guard against contracting and
spreading COVID-19. These basic human rights and responsibilities that people have who freely
choose to refuse to take the COVID-19 vaccination are taught and reiterated by the

Congregation of the Doctrine of the Faith in paragraph no. 5 of their recent document from

December 21, 2020, entitled Note on the Morality of using some anti-COVID-19 Vaccines.

| testify to the fact that | exercise both pastoral

Respectfully Yours,

Reverend Gabriel Mills
Parochial Vicar

Christ the King Catholic Church
Daphne, Alabama

Encl. 4
166a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 122 of160 PagelD 4558

ADMINISTRATIVE REMARKS
NAVPERS 1070/613 (REV. 08-2012) PREVIOUS EDITIONS ARE OBSOLETE SUPPORTING DIRECTIVE MILPERSMAN 1070-320

SHIP OR STATION

Supervisor of Shipbuilding Conversion and Repair Gulf Coast

SUBJECT: 1% PERMANENT [~ TEMPORARY
ennai EXEMPTIONS FOR RELIGIOUS BELIEFS ICO LT ERIK V. AUTHORITY dF PERMANENT)

CHIEF OF NAVAL PERSONNEL

T request a waiver of any immunization containing aborted fetal cell lines (as outlined in Encl. (1) of the religious accommodation
request dated 27AUG21). I hereby state that my request is based upon religious objection to receiving immunizations tainted with
aborted fetal cell lines in development, production, or testing, regardless of how remote. I acknowledge having received the
following counseling:

1, Failure to obtain immunization poses additional risk to my health upon exposure to disease.
2. in the event of foreign travel, | may be detained during travel across foreign borders due to international health regulations,

3. If granted, a waiver may be revoked by my commanding officer if! am at imminent risk of disease or due to international health
regulations.

4. If my job duties change, i may need to route a new request.

5. If 1 am at my permanent change of station while my waiver is in effect, | may need to route a new request if my job duties change,
my geographic region exposes me to the aforementioned disease, or other factors exist that could put me at imminent risk of discase.

Erik V. De Sousa
LF USN

~~ Daniel E. Clark
LCDR, CHC, USN

ENTERED AND VERIFIED IN ELECTRONIC SERVICE RECORD:
VERIFYING OFFICIAL RANK OR GRADE/TITLE DATE. SIGNATURE OF VERIFYING OFFICIAL.

NAME (LAST, FIRST, MIDDLE); SOCIAL SECURITY NUMBER: |BRANCH AND CLASS
DeSousa, Erik, V. USN
FOR OFFICIAL USE ONLY

| _ResetForm | | Printform | ERIVGEY SETI Submit by E-mail

Encl. 5
167a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 123 of 160 PagelD 4559

1730
27 Aug 21

MEMORANDUM FOR THE RECORD
From: Daniel E. Clark, LCDR, CHC, USN

To: Chief of Naval Operations N1
Via: Commanding Officer, Supervisor of Shipbuilding Conversion and Repair Gulf Coast

Subj: RECOMMENDATION FOR IMMUNIZATION WAIVER ICO LT ERIK DESOUSA

Ref: (a) MILPERSMAN 1730-020
(b) SECNAVINST 1730.8C
(c) SECNAVINST 1730.9A

1. LT Erik DeSousa has submitted a request to accommodate a religious belief based on a
sincerely held moral or ethical principle. I interview him as required by reference (b) on August
17", 2021. I explained to LT DeSousa the difference between confidential communications to a
chaplain, as defined in reference (c), and the interview process to support this memorandum. LT
DeSousa was given the opportunity to confidentially discuss his request with a chaplain other
than myself. I reviewed the content of this memorandum with him and provided LT DeSousa a
copy of the memorandum.

2. LT DeSousa is seeking a religious accommodation to be exempt from taking the currently
offered COVID vaccines. Through the development of his sincerely held beliefs he and his
family have come to the conclusion that taking these vaccines would irrefutably damage his
moral conscience. He has not previously had a related request approval.

3. LT DeSousa openly shared his Christian faith and religious convictions that he has regarding
the currently offered COVID vaccinations. The request is based on his Catholic view on the
sanctity of life as it pertains to abortion, his body and the greater community. LT DeSousa’s
beliefs and their connection to these vaccinations are sincerely held and morally grounded. He
consistently demonstrates a sincerity of faith and conviction of conscience. His service record
indicates his Christian faith. He has not previously requested this kind of exemption due to the
fact that most required vaccinations for military service have been around for many years of
testing and have alternatives that do not use feta! cell lines.

4. There are currently no alternate means of meeting the request.

5. LT DeSousa has provided more than adequate means to prove his sincerity in this matter.
Though he is currently 100% physically mission ready his mental readiness continues to decline
due to the prospect of being forced to take a vaccine that undermines his personal religious
convictions. This is negatively impacting his morale and mission readiness. Though no one can
say for certain that forcing him to receive the vaccination will prevent him from getting COVID
and therefore increase mission readiness and the safety of all, I can 100% confirm that it will
decrease his mission readiness if forced to receive it.

Encl. 6
168a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 124 of160 PagelD 4560

6. Therefore, considering the Public Law 112-239, Section 533 from the Defense Authorization
Act of 2013, the “Armed Forces shall accommodate the beliefs of a member of the armed forces
reflecting the conscience, moral principles, or religious beliefs of the member”, and balancing
the religious accommodation request with military readiness and mission accomplishment, I
recommend favorable consideration of LT DeSousa’s immunization waiver for the foreseeable
future. My contact information is Mand daniel.clark7@navy.mil

D. E. CLARK

Encl. 6
169a

Case 4:21-cv-01236-O0 Document 134 Filed 02/28/22 Page125o0f160 PagelD 4561

Religious Accommodation Interview Checklist

Applicant: ERIK DESOUSA Date of Interview(s): August 17th, 2021
Rate/Rank: | T Chaplain Interviewer: LCDR Daniel Clark
Phone: Phone:

Command: Supervisor of Shipbuilding Conversion | Chaplain’s Command: NAS Pensacola

Interview Preliminaries:
Yes No N/A

x Review DoDI 1300.170n religious accommodation.
Notify Applicant that the interview is not confidential or privileged, and will be used in an
x official report to advise the command on the Applicant’s request.
x Obtain Applicant’s signed waiver (see attached).
Explain to the Applicant that confidential support can be obtained through either 1)
x another chaplain or 2) a separate counseling session.
x Has the Applicant been granted a policy waiver for this practice previously?

Does the Applicant’s Page 2 (NAVPERS 1070/602) reflect the belief cited in the
x application?

The application is for a waiver from the following:
Yes No N/A

Uniform standards
Grooming standards

x Immunization requirements
Xx DNA sampling
x Other

Interview Results:
Yes No N/A

Applicant communicated his/her beliefs (conscience, moral principles, or religious
x beliefs) in an honest and sincere manner.

x Applicant was credible (consistently keeps tenets, practices, etc.).
x Applicant’s demeanor and pattern of conduct are consistent with the request.
x Applicant participates in activities associated with the belief(s).
x Persons supporting the claim are credible.
Applicant’s request is supported by letter(s) of verification or endorsement from an
x organization espousing the beliefs which are the basis for the claim.
x Alternate means of accommodating the practice were explored in the interview.

Process Checklist:
Yes No N/A

x Chaplain has prepared a memorandum memorializing the interview, following the
guidance, specifically identifying the religious importance of the accommodation to the
Applicant.

x Chaplain reviewed memorandum with Applicant and provided a copy.

Chaplain submitted the memorandum and this document to the commanding officer via
x chain of command.
x Chaplain referred Applicant to command to process request.

Encl. 7
170a

Case 4:21-cv-01236-O0 Document 134 Filed 02/28/22 Page 126 of 160 PagelD 4562

WARNING ADVISEMENT ABOUT STATEMENTS MADE DURING A RELIGIOUS
ACCOMODATION INTERVIEW

I, LT ERIK DESOUSA , have been advised
that statements that are made during the course of my religious
accommodation interview are not confidential and may be
disclosed by Chaplain DANIEL CLARK to further my
religious accommodation request.

17AUG21

Date Counselee

Date Chaplain

Encl.

7
172a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 128 of 160 PagelD 4564
DEPARTMENT OF THE NAVY

OFFICE OF THE CHIEF OF NAVAL OPERATIONS
2000 NAVY PENTAGON
WASHINGTON DC 20350-2000

1730
Ser N1/118244
24 Feb 22

From: Deputy Chief of Naval Operations (Manpower, Personnel, Training and Education) (N1)
To: | LCDR Erik V. DeSousa, USN
Via: Commanding Officer, Supervisor of Shipbuilding Conversion and Repair Gulf Coast

Subj: REQUEST FOR WAIVER OF POLICY IN SUPPORT OF RELIGIOUS PRACTICE

Ref: (a) LCDR Erik V. DeSousa, USN Itr of 22 Feb 22 w/ends
(b) BUPERSINST 1730.11A
(c) DCNO/N1 RA Response Itr of 17 Nov 21
(d) CNO Appeal RA Response Itr of 10 Feb 22

1. Your request in reference (a) is denied. Contrary to your assertion, there have been no
substantive changes to the physical environment since your original request and appeal. The
compelling government interest in ensuring mission accomplishment, to include military
readiness, unit cohesion, good order and discipline, health and safety, on both individual and unit
levels remains the same.

2. As provided in reference (b), members are afforded the opportunity to renew requests when
the physical, operational, or geographical environment in which they work or operate has
changed. In your case, the environment has not materially changed. Specifically, and as already
noted in references (c) and (d), you remain an Engineering Duty Officer and continue to fill a
vital billet at your command, interacting on the waterfront with essential Navy personnel.
Further, a waiver of the COVID-19 immunization would continue to have a predictable and
detrimental effect on your readiness and the readiness of the Sailors who serve alongside you in
both operational and non-operational environments. Granting your request would still have a
direct and foreseeable negative impact on the compelling government interests of military
readiness and health of the force. Finally, while no vaccine is completely effective, vaccines
reduce disease incidence and disease severity.

NOWELL.JOHN.BL pigitally signed by

057611835 Date: 2022.02.24 20:42:10 -05'00'

JOHN B. NOWELL, JR

Copy to:
OPNAV (N131, N0975)
BUMED
173a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page129of160 PagelD 4565

EXHIBIT C
174a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 130of160 PagelD 4566

From: Schneider, Nathan A CAPT USN SUPSHIP GULFCOAST MS (USA)
<nathan.a.schneider.mil@us.navy.mil>

Sent: Friday, February 25, 2022 4:18 PM

To: DeSousa, Erik Vincent LCDR USN SUPSHIP GULFCOAST MS (USA) <erik.v.desousa.mil@us.navy.mil>
Cc: Suarez, S M (Sal) CAPT USN SUPSHIP GULFCOAST MS (USA) <salvador.m.suarez2.mil@us.navy.mil>;
Massey, Mark A Jr CPO USN (USA) <mark.a.massey22.mil@us.navy.mil>

Subject: FW: CNO Religious Accommodation Appeal Response ICO LT Erik DeSousa

Erik,
The DCNO has responded to your RA stating that the conditions described do not constitute valid
“change[s] in physical, operational or geographical environment” — see attached.

Please note that IAW guidance, we need to start the administrative separation process possibly as early
as next week unless you elect to request resignation by 1 June 2022 (14 days from the disapproval of the
appeal - will be following up w/ PERS-834 to determine how to address this given the additional RA
request). With that in mind, please let me know how you would like to proceed once you’ve had a
chance to review.

V/R,

CAPT Nate Schneider
SSGC CO

W: (228) 935-0275

nathan.a.schneider.mil@us.navy.mil

From: Cua, Diane S CDR USN DCNO N11 (USA) <diane.s.cua.mil@us.navy.mil>

Sent: Friday, February 25, 2022 3:26 PM

To: Schneider, Nathan A CAPT USN SUPSHIP GULFCOAST MS (USA)
<nathan.a.schneider.mil@us.navy.mil>; Navy Religious Accommodations

<ALTN Navy Religious Accommodations@navy.mil>

Cc: Katson, Mery Angela Sanabria CAPT USN DCNO N1 (USA) <mery.a.katson.mil@us.navy.mil>; Cua,
Diane S CDR USN DCNO N11 (USA) <diane.s.cual@navy.mil>; richard.a.neuer@navy.mil; Johnson, Katelyn
A PO2 USN (USA) <katelyn.a.johnson2@navy.mil>; Suarez, S M (Sal) CAPT USN SUPSHIP GULFCOAST MS
(USA) <salvador.m.suarez2.mil@us.navy.mil>; Massey, Mark A Jr CPO USN (USA)
<mark.a.massey22.mil@us.navy.mil>

Subject: RE: CNO Religious Accommodation Appeal Response ICO LT Erik DeSousa

CAPT Schneider,

Good afternoon. Please find attached DCNO N1’s response to LCDR DeSousa’s request for waiver of
policy in support of religious practice. The conditions described do not constitute valid “change|[s] in
physical, operational or geographical environment.” Therefore, the previously adjudicated Religious
Accommodation from CNO remains in effect. Request you (or your designee):

(1) acknowledge receipt of DCNO N1’s letter by responding to this email (kindly reply to all above).
(2) provide DCNO N1’s response to LCDR DeSousa.
175a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 131o0f160 PagelD 4567

(3) update the CCDA database with the appropriate entry. Specifically, change the entry from
“unvaccinated, pending religious accommodation” to (NAVADMIN 249/21):
a. ‘unvaccinated, vaccination series started but not complete’ if the service member
initiated the two series vaccination (Pfizer or Moderna), OR
b. ‘vaccination series complete, previously reported as unvaccinated’ if the service
member received the one shot vaccination (Johnson & Johnson), OR
c. ‘unvaccinated, refuser’ if the service member decided to not comply with CNO’s
direction.
Note: These updates can be made via the My Navy Portal Site: https://www.mnp.navy.mil/group/navy-
covid-19-reporting (NAVADMIN 249/21 pertains).

V/r
Diane

CDR Diane Cua

OPNAV N131B

Deputy Branch Head, Officer Plans and Policy
diane.s.cua.mil@us.navy.mil

Office: (703) 604-5023

From: Schneider, Nathan A CAPT USN SUPSHIP GULFCOAST MS (USA)
<nathan.a.schneider.mil@us.navy.mil>

Sent: Wednesday, February 23, 2022 11:43 AM

To: Navy Religious Accommodations <ALTN Navy Religious Accommodations@navy.mil>

Cc: Katson, Mery Angela Sanabria CAPT USN DCNO N1 (USA) <mery.a.katson.mil@us.navy.mil>; Cua,
Diane S CDR USN DCNO N11 (USA) <diane.s.cual@navy.mil>; richard.a.neuer@navy.mil; Johnson, Katelyn
A PO2 USN (USA) <katelyn.a.johnson2@navy.mil>; Suarez, S M (Sal) CAPT USN SUPSHIP GULFCOAST MS
(USA) <salvador.m.suarez2.mil@us.navy.mil>; DeSousa, Erik Vincent LCDR USN SUPSHIP GULFCOAST MS
(USA) <erik.v.desousa.mil@us.navy.mil>; Massey, Mark A Jr CPO USN (USA)
<mark.a.massey22.mil@us.navy.mil>

Subject: RE: CNO Religious Accommodation Appeal Response ICO LT Erik DeSousa

Good morning. LCDR DeSousa is requesting a new reasonable accommodation be considered due to a
change in operational environment - please see attached.

V/R,

CAPT Nate Schneider
SSGC CO

W: (228) 935-0275

nathan.a.schneider.mil@us.navy.mil

From: Katson, Mery Angela Sanabria CAPT USN DCNO N11 (USA) <mery.a.katson.mil@us.navy.mil>
Sent: Monday, February 14, 2022 5:47 AM

To: Suarez, S M (Sal) CAPT USN SUPSHIP GULFCOAST MS (USA) <salvador.suarez@navy.mil>; Schneider,
Nathan A CAPT USN SUPSHIP GULFCOAST MS (USA) <nathan.a.schneider3 @navy.mil>
176a

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Cc: Katson, Mery Angela Sanabria CAPT USN DCNO N1 (USA) <mery.a.katson.mil@us.navy.mil>; Cua,
Diane S CDR USN DCNO N11 (USA) <diane.s.cual@navy.mil>; richard.a.neuer@navy.mil; Johnson, Katelyn
A PO2 USN (USA) <katelyn.a.johnson2@navy.mil>

Subject: CNO Religious Accommodation Appeal Response ICO LT Erik DeSousa

CAPT Suarez,

Good morning. Please find attached LT DeSousa’s fully adjudicated Religious Accommodation Appeal from CNO
Gilday. This is the final step in the Religious Accommodation process. Request you (or your designee):

(1) acknowledge receipt of the CNO’s letter by responding to this email (kindly reply to all above).

(2) provide the CNO’s response to LT DeSousa and remind him of the requirement to initiate vaccination
against COVID-19 within five (5) calendar days upon receipt of this letter and become fully vaccinated
by following the required vaccine series protocol.

(3) update the CCDA database with the appropriate entry after the five (5) calendar days has passed.
Specifically, change the entry from “unvaccinated, pending religious accommodation” to (NAVADMIN
249/21):

a. ‘unvaccinated, vaccination series started but not complete’ if the service member initiated the
two series vaccination (Pfizer or Moderna), OR
b. ‘vaccination series complete, previously reported as unvaccinated’ if the service member
received the one shot vaccination (Johnson & Johnson), OR
c. ‘unvaccinated, refuser’ if the service member decided to not comply with CNO’s direction by the
fifth calendar day.
Note: These updates can be made via the MyNavwy Portal Site: https://www.mnp.navy.mil/group/navy-
covid-19-reporting (NAVADMIN 249/21 pertains).

Thank you,

V/r CAPT Mery-Angela S. Katson

COVID-19 Religious Accommodation Appeals Team Lead
701 South Courthouse Road, Bldg 12, Suite 301
Arlington, VA 22204
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

U.S. NAVY SEALs 1-3, on behalf of
themselves and all others similarly situated;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1, on behalf of
himself and all others similarly situated; U.S.
NAVY SEALS 4-26; U.S. NAVY SPECIAL
WARFARE COMBATANT CRAFT
CREWMEN 1-5; and U.S. NAVY DIVERS
1-3,

Plaintiffs, Case No. 4:21-cv-01236-O

Ve

LLOYD J. AUSTIN, III, in his official
capacity as United States Secretary of
Defense; UNITED STATES
DEPARTMENT OF DEFENSE; CARLOS
DEL TORO, in his official capacity as
United States Secretary of the Navy,

Defendants.

DECLARATION OF LIEUTENANT DANIEL FRANKLIN, USN

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury as follows:

l. I am over the age of eighteen and am competent to make this declaration.

2: I have served in the United States Navy for 16 years. I have the rank of Lieutenant
(O-3). | am an Explosive Ordnance Disposal (EOD) Officer and prior command Division Officer.
My command is a training command with ten training divisions. As a Division Officer my overall
responsibility was the proper management of my division which composed of around 25 personnel,
mostly instructors. Command instruction dictates 18 specific responsibilities for Division Officers

including but not limited to: ensuring staff proficiency, planning, budgeting, maintaining curricula
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and records, enforcing safety regulations and command instructions, counseling students,
accounting for controlled items such as training aids and publications, submitting reports,
scheduling, coordinating with other divisions and supervising and training assigned staff. The
majority of my time as a Division Officer was spent in my private office fulfilling these
administrative responsibilities. I am a qualified instructor and did assist in training students a
limited number of times due to the administrative responsibilities. The division I was assigned to
is considered a “high-risk” division due to the nature of the training. The majority of student
training in my division occurs outside, either in physical training, underwater diving or in outdoor
practice areas.

3 I have a sincere religious objection to receiving the COVID-19 vaccination as
mandated by the Navy and submitted a religious accommodation request on 20 September 2021.
After it was denied I submitted an appeal to Chief of Naval Operations on 08 December 2021. In
January 2022 a new EOD officer arrived at the command and I was instructed to begin training
him as my replacement in preparation of my separation from the Navy for not receiving the
COVID-19 vaccination, so I can “get my personal things in order”. Around 27 January 2022 I
was fully replaced as the Division Officer. I still assist in training students as a qualified instructor
but am no longer performing duties that correlate with my rank or that are meaningful to
professional development and advancement of my career as an EOD Officer. My original and
current orders have me working at my command until July 2022.

4. On 18 February 2022, I received the denial of my appeal from the Chief of Naval
Operations. On 23 February 2022 | submitted a renewed religious accommodation request.
According to BUPERSINST 1730.11A § 5f(2), “When a religious accommodation request is

denied, the requestor may renew the request upon change in physical, operational or geographical
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environment, or at any time in which there is a change to pertinent policy.” In my accommodation
request, I explained that my physical and operational environment had changed since first
requesting accommodation in September. I have since contracted and recovered from a mild case
of COVID-19 in December 2022 and have tested positive for COVID-19 T-cells. I had witnessed
widespread COVID infection among vaccinated co-workers and other military officials despite
vaccination. I have also since been removed from my position as a command Division Officer.
The BUMED letter relied upon to deny my religious accommodation request was dated September
2021, making it outdated in light of more recent COVID-19 developments. I updated my
accommodation request to now include all routine and non-routine vaccinations in addition to
COVID-19 vaccines for religious reasons detailed in my renewed accommodation request. My
renewed religious accommodation request is attached to this declaration as Exhibit A.

bi On 24 February 2022, the Chief of Naval Personnel John B. Nowell denied my
request, claiming that my physical environment had not changed despite this. A copy of the denial
is attached to this declaration as Exhibit B.

6. As a result, on 25 February 2022, CDR Diane Cua stated that my previously
adjudicated religious accommodation from CNO remains in effect. A copy of this email chain is

attached to this declaration as Exhibit C.

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and
correct.

Executed on February 26, 2022.

gl XA

DANIEL'FRANKLIN
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23 Feb 22

From: LT Daniel Franklin, USN

To: | Deputy Chief of Naval Operations (Manpower, Personnel, Training and Education)
(N1)

Via: CAPT Steven Beall, Commanding Officer, Naval School Explosive Ordnance Disposal

Subj: REQUEST FOR WAIVER OF POLICY IN SUPPORT OF RELIGIOUS PRACTICE

Ref: (a) DOD Instruction 1300.17
(b) SECNAVINST 1730.8
(c) BUPERSINST 1730.11A

Encl: (1) CNO disapproval 15 Feb 22
(2) OPNAV N13 Itr 1730 Ser N13/306 of 17 Nov 21
(3) BUMED Itr 6320 Ser M44/21UM401 of 22 Sep 21
(4) Positive Serological test for Covid-19 T-cells
(5) Naval Medical Intel report of 11 February 2022
(6) Study Comparing SARS-CoV-2 natural immunity to vaccine-induced immunity, Gazit
(7) CDC FOIA Response, 05 Nov 21
(8) Defense Medical Epidemiology Database (DMED) data, 26 Jan 22

1. Per references (a) and (b), the Department of the Navy (DoN) recognizes that religion can be as
integral to a person’s identity as one’s race or sex. To that extent, DoN promotes a culture of
diversity, tolerance, and excellence by making every effort to accommodate religious practices
absent a compelling operational reason to the contrary. Religious medical practices include
traditional objections to receiving immunizations. It is DoN policy to accommodate the traditional
observances of the religious faith practiced by individual members when these doctrines or
observances will not have an adverse impact on military readiness, individual or unit readiness, unit
cohesion, health, safety, discipline, or mission accomplishment. Immunizations requirements may
be waived when requested by the member based on religious objection.

2. Per enclosure (1) [CNO Denial Letter], I received denial of my Religious Accommodation (RA)
appeal request from the CNO dated 15 February 2022. Iam submitting a new RA request per
BUPERSINST 1730.11A which states as follows:

5f(2) When a religious accommodation request is denied, the requestor may renew
the request upon change in physical, operational or geographical environment, or at
any time in which there is a change to pertinent policy.

Since my original request for RA dated 20 September 2021, my physical and operational
environment has changed significantly in the last 5 months as follows:

a. I contracted the COVID-19 virus on 24 December 2021, with mild throat, fever, chills and
headache symptoms associated with the Omicron variant and have natural immunity that I
did not have previously. See enclosure (4), Positive Serological test for Covid-19 T-cells;
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b. I received a positional change and am no longer a command division officer;

c. 100% of active duty staff at my command are now vaccinated and/or went through natural
infection and recovery from the COVID-19 virus. Mr. Lloyd Austin (SECDEF), Gen Mark
Milley (Chairman, Joint Chiefs of Staff), Mr. Vivek Murthy (U.S. Surgeon General), Navy
Secretary Carlos Del Toro (SECNAV) and other military leaders have contracted COVID-
19 despite receiving a complete vaccination series including boosters. World-wide reports
clearly indicate current COVID-19 vaccinations do not prevent contraction or spread of the
COVID-19 virus;

d. The Omicron variant emerged and swept across the Nation and my geographical area,
drastically shifting the nature of the COVID-19 pandemic and providing proven natural
immunity;

e. Evidence of widespread harm from the COVID-19 vaccines are now known, including but
not limited to data from the CDC/FDA database VAERS and Defense Medical
Epidemiology Database (DMED);

f. Federal vaccine mandates were stopped in courts, including the OSHA requirement. The
five DoD contractors I work with in my division are now not required to be vaccinated.

g. Ongoing Federal court cases continue to reveal discrepancies in DoD following Federal and
Constitutional law in the implementation of its COVID-19 Vaccine mandate among DoD
personnel;

3. Upon reading the OPNAV N13 letter I received with my appeal denial, enclosure (2), in
opposition to my previous request for RA, I would like to proactively address some of the
information that is contained therein as follows:

a. Per paragraph 1, the OPNAV N13 letter states it is the Navy’s compelling government
interest to prevent the spread of vaccine-preventable communicable diseases among sailors.
However, this does not apply to any of the current COVID-19 vaccines available. The efficacy of
the current COVID-19 vaccinations is based on reducing symptoms if exposed and preventing
severe illness or death. None of the COVID-19 vaccinations prevent contracting the predominant
Omicron variant virus, or transmission of the virus as evidenced by world-wide reports and current
Navy COVID-19 virus positivity tracking data.

b. The OPNAV N13 letter states only 1.7% of sailors who were fully vaccinated contracted
a breakthrough case and 23.3% of unvaccinated became infected up to October 2021. This is
misleading and outdated. Force vaccination rates were changing throughout 2021 and were not a
fixed number. According to Naval Medical Intel report of 11 February 2022, enclosure (5), from
December 2020 to February 2022 a total of 15,855 non-vaccinated sailors became infected. In the
same time frame 28,966 fully vaccinated sailors became infected. There is an 82% increase in
vaccinated sailors contracting COVID-19 over unvaccinated sailors contracting COVID-19. Not
only is vaccination failing to prevent disease, it appears vaccination increases the risk of contracting

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COVID-19, and does not serve the alleged compelling government interest of preventing the spread
of disease.

c. The OPNAV letter states “even one unvaccinated Sailor, after contracting COVID-19
affects mission accomplishment” then two paragraphs later mentions, “The small group of Sailors
who have temporary medical exemptions and the very small group with permanent medical
exemptions are at higher risk”. It is not congruent with the protections of the Constitution to state
the Navy’s compelling government interest is achieved through approving unvaccinated medical
and administrative exemptions while simultaneously disapproving every single Religious
Accommodation request.

4. Upon reading the BUMED letter I received with my appeal denial, enclosure (3), in opposition
to my previous request for RA, I would like to proactively address some of the information that is
contained therein as follows:

a. Per para 7, the BUMED letter refers to phase III trials of the FDA approved COVID-19
vaccine. Of note, the only COVID-19 vaccines that are currently approved by the FDA are
“COMIRNATY” by BioNTech Manufacturing GmbH (Mainz, Germany) and “SPIKEVAX” by
Moderna, neither of which are available in the United States presently as stated in the 31 Jan 2022
letter to Moderna, Inc. which states:

“Although SPIKEVAX (COVID-19 Vaccine, mRNA) and Comirnaty (COVID-19
Vaccine, mRNA) are approved to prevent COVID-19 in certain individuals, within the
scope of the Moderna COVID-19 Vaccine authorization, there is not sufficient approved
vaccine available for distribution to this population in its entirety at the time of
reissuance of this EUA.”

b. Currently, all COVID-19 vaccinations available to service members are
only authorized by the FDA for Emergency Use Authorization (EUA) only. Per 21 USC Sec.
360bbb-3, vaccinations under EUA are voluntary, unless waived by POTUS per 10 USC Sec.
1107a, DoDI 1300.17, DoDI 6200.02 and DoDI 6205.02.

c. The BUMED letter cites the COVID-19 outbreak on the USS THEODORE
ROOSEVELT that occurred in March 2021, prior to wide-spread vaccinations. A similar outbreak
later happened to the USS MILWAULKEE (LCS 5) in December 2021 with a crew that was 100%
vaccinated. One third of the crew tested positive for COVID-19. This ship was isolated in port,
removing the unit from executing its mission capabilities for several days. A similar COVID-19
outbreak occurred on USS HALSEY (DDG 97) with one-third of the crew testing positive for
COVID-19. Both outbreaks (among others) clearly demonstrate that vaccination status does not
preserve mission accomplishment.

5. Both the OPNAV and BUMED letters I received applied the threat of COVID-19 while working
and living on-board a ship referring to situations such as narrow passage-ways, community berthing
and messing areas. Shipboard comparisons are inapplicable to my current assignment and for future
assignments as I follow the narrow EOD LDO career path for the duration of my career.
BUPERSINST 1730.11A, reference (c) states, “Each request for religious accommodation must be
reviewed on a case-by-case basis, giving consideration to the full range of facts and circumstances

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relevant to the specific request”. Also, “It is essential that commanders articulate the factual basis
underlying any compelling government interest and that they articulate why a recommended denial
or partial denial is the least restrictive means available to the commander to protect the compelling
government interest over the individual request”. By making a denial based upon ship-board
operations that do not apply to my case-by-case bases, this requirement was not met. The Religious
Freedom Restoration Act of 1993 (RFRA) states the Government may substantially burden an
individual’s exercise of religion only if it demonstrates that the application of the burden to the
person is: (1) in furtherance of a compelling governmental interest, and (2) is the least restrictive
means of furthering that interest. The burden rests with the government to demonstrate both factors
in their entirety, not the individual requesting the exemption per DoDI 1300.17, September 1, 2020.
My original RA request, subsequent appeal, and this renewed RA request demonstrate facts that the
DOD’s vaccination mandate is not the least restrictive means to further the interest of mission
accomplishment and unit readiness. The original disapproval from CNP and subsequent Appeal
disapproval from CNO fail to explain how vaccination outweighs my sincerely held beliefs to
accomplish the mission and promote good order and discipline, nor do they explain how this would
detrimentally affect me and my unit’s readiness. Using the information throughout this RA, despite
not bearing the burden, I demonstrate how the COVID-19 vaccination is not the least restrictive
means available to preserve military readiness, mission accomplishment and the health and safety of
military service members. The government must show it cannot accommodate the religious
adherent while achieving its interest through a viable alternative. The government cannot meet this
burden.

6. The arrival of the Omicron variant occurred after my originally submitted RA and Omicron was
not mentioned at all in the supporting OPNAV or BUMED letters I received. Omicron was first
identified in South Africa on 11 November 2021 and quickly spread around the globe entirely
changing the nature of the COVID-19 pandemic. Though more transmissible than prior variants, it
had significantly lower instances leading to hospitalization and almost non-existent instances of
death directly relating to COVID-19 infection. On 10 January 2022, the European Medicines
Agency (EMA) based in Amsterdam reported that the spread of Omicron was pushing COVID-19
towards an endemic disease that humanity can live with. Numerous regulatory agencies and
medical governance authorities have also denied repeated boosters as a sustainable strategy. Marco
Cavaleri, head of vaccine strategy at EMA reported “With the increase of immunity in population —
and with Omicron, there will be a lot of natural immunity taking place on top of vaccination — we
will be fast moving towards a scenario that will be closer to endemicity”. Additionally, Spain
released a study of Omicron on 20 January 2022 stating “once infected, index vaccinated cases
seem to have the same transmission capacity as non-vaccinated people.” A study by the Africa
Health Research Institute found the antibody response of people infected with Omicron increased
protection against the Delta variant more than fourfold. “These results are consistent with Omicron
displacing the Delta variant, since it can elicit immunity which neutralizes Delta making re-
infection with Delta less likely” reported the team of scientists led by Khadija Khan. Any
evaluation on the COVID-19 disease and vaccines is not complete or current without considering
the altering impact Omicron had around the globe.

7. Natural immunity was not mentioned at all in the OPNAV or BUMED letters I received
although many countries, scientists and doctors are discussing it with many studies supporting the
effectiveness of natural immunity. https://brownstone.org/articles/79-research-studies-affirm-
naturally-acquired-immunity-to-covid-19-documented-linked-and-quoted/ provides 150 studies,

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reports and papers supporting the evidence of natural immunity vs vaccine induced immunity. In
on such study, enclosure (6), Gazit et al. conducted “a retrospective observational study comparing
three groups: (1) SARS-CoV-2-naive individuals who received a two-dose regimen of the
BioNTech/Pfizer mRNA BNT162b2 vaccine, (2) previously infected individuals who have not been
vaccinated, and (3) previously infected and single dose vaccinated individuals”. In Model 1,
findings revealed a 13-fold increased risk of breakthrough Delta infections in double vaccinated
persons, and a 27-fold increased risk for symptomatic breakthrough infection in double vaccinated
relative to the natural immunity recovered persons. Additionally, the risk of hospitalization was 8
times higher in the double vaccinated. In conclusion, “this analysis demonstrated that natural
immunity affords longer lasting and stronger protection against infection, symptomatic disease and
hospitalization due to the Delta variant of SARS-CoV-2, compared to the BNT162b2 two-dose
vaccine induced immunity.” I have fully recovered from a prior COVID-19 infection and still carry
naturally protective T-cell immunity as shown in my positive, serological T-cell test, enclosure (4).
In their response to a FOIA request, the CDC reinforced natural immunity on 05 Nov 2021 when
they failed to provide even one document evidencing a single case where an individual infected
with SARS-Cov-2, recovered and then later became re-infected or infected others, enclosure (7).

8. The COVID-19 vaccines are now known to have caused physical bodily harm in numbers far
surpassing standard vaccine adverse events. This is seen in data from the Defense Medical
Epidemiology Database (DMED). On January 24" attorney Thomas Renz representing three
military doctors testified to Senator Ron Johnson about the highly concerning trends found in the
DMED database. Enclosure (8) details the information and actual screen shots taken directly from
DMED. Comparing data from a 5-year average 2016-2020 to the data during 2021 when vaccines
were implemented is alarming. To list some of the examples, unspecified chest pain increased by
1,529%, Acute Myocarditis increased by 285%, Pulmonary Embolism increased by 467%, HIV
increased by 590%, Spontaneous Abortion increased by 306%. This is clear harm done to DoD
service members. Within days of this whistleblower release, DMED was taken off-line. When it
was put back online the numbers were “fixed” to show no large discrepancies through 2016-2021.
The damaging effects of these vaccines are being actively hidden.

9. In addition to hiding how unsafe the vaccines are, concerted efforts have been taken to actively
hide how ineffective they are. For example, prior to 26 August 2021 the definition of vaccine on
the CDC website was “A product that stimulates a person’s immune system to produce immunity to
a specific disease, protecting the person from that disease.” Since September 2021, the CDC
changed the definition of vaccine to “A preparation that is used to stimulate the body’s immune
response against diseases.” Which is now the new definition of vaccine as found on Merriam
Webster dictionary website. Further, on 20 February 2022, the New York times reported “the CDC
has been routinely collecting information since the Covid vaccines were first rolled out last year,
according to a federal official familiar with the effort. The agency has been reluctant to make those
figures public, the official said, because they might be misinterpreted as the vaccines being
ineffective.” Data regarding the effectiveness of the vaccines is actively being hidden.

10. Federal court cases continue to reveal discrepancies in DoD following Federal and
Constitutional law in the implementation of its COVID-19 Vaccine mandate among DoD personnel.
Below are three recent examples:
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a.

On 3 Jan 2022, Judge Reed O’Connor issued a preliminary injunction for plaintiffs in
U.S. NAVY SEALS 1-26, et al, v. JOSEPH R. BIDEN, JR., et al. Plaintiffs had
submitted RA requests but were not provided the legal review required in evaluating
their submissions. The Court noted that the Navy utilized a “‘six-phase, fifty step
process” wherein at Phase 1 the administrator is instructed to update a prepared
disapproval template with the requestor’s name and rank. Based upon the boilerplate
rejection template, it appears the RA review process is pre-determined and sidesteps an
individualized review process as required by law. The Judge called the Navy RA review
process “theater” stating it “merely rubber stamps each denial.” The Judge further
states, “The COVID-19 pandemic provides the government no license to abrogate those
[religious] freedoms. There is no COVID-19 exception to the First Amendment. There is
no military exclusion from our Constitution.” Based upon the documents presented to
the Court and the Judge’s acknowledgement of the blanket denial process of all RA
requests, I am submitting a new RA request for an individualized case-by-case review as
required under the law.

On 15 February 2022, Judge Tillman Self issued a preliminary injunction for the
plaintiff in AIR FORCE OFFICER, v. LLOYD J. AUSTIN, Ill et al. The Judge states,
“Plaintiff's claim that she has been “forced to choose between her sincerely held
religious beliefs and her livelihood” undoubtedly checks the box for an allegation of a
deprivation of a constitutional right or violation of an applicable federal statute.”. In
conclusion, the Judge also states, “Given “the Nation’s essential commitment to
religious freedom|[,]” Plaintiff's harm—a constitutional injury involving her right to
freely exercise her religion—is not a mere trivial grievance. Church of Lukumi, 508 U.S.
at 524. And, what real interest can our military leaders have in furthering a requirement
that violates the very document they swore to support and defend? The Court is
unquestionably confident that the Air Force will remain healthy enough to carry out its
critical national defense mission even if Plaintiff remains unvaccinated and is not forced
to retire.”

On 18 February 2022, Judge Steven Merryday issued a preliminary injunctive relief for
two plaintiffs in NAVY SEAL 1, et al v. LLOYD J. AUSTIN, et al. Within the order,
the Judge states, “Requiring a service member either to follow a direct order contrary to
a sincerely held religious belief or to face immediate processing for separation or other
punishment undoubtedly causes irreparable harm.”

11. This Religious Accommodation request is for waiver from COVID-19 immunizations and
routine and non-routine vaccines. As a believer in Christ, I am called to test and look into all
prophecies and claims (1 Thess 5:21) and to search for understanding as if it were a treasure (Prov
2:3-4). As such, I diligently researched the COVID-19 disease and the related vaccines in search of
understanding. Though my situation and the dynamic nature of the Covid-19 pandemic has
changed and further information has become available, my religious beliefs and convictions have
stayed the same. Following is the basis of my convictions in how I am to live in the reality of this
disease and vaccines as governed by my faith rooted in God’s Holy Word.
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As of this writing, the Navy reports eight out of 346,000 active duty sailors have passed
away from COVID-19 since December 2020, enclosure (5). This equates to a .002% chance of
death to sailors such as myself. The chance of myself or any sailor dying in a car crash driving to
work is 8 times more likely at .016% per National Safety Council. The heightened level of fear for
COVID-19 does not match the threat of the disease to service members. As a believer, I have been
commanded not to be overcome by fear or live my life in a constant state of fear (Joshua 1:9, 2 Tim
1:7). If I partake in the vaccine, I would be bearing a false witness to my spiritual beliefs and will
be complicit in the effects of this hysterical fear upon my life.

The immense national and global pressure to take the COVID-19 vaccine is unlike any other
vaccine in history. It is being pushed by governments, employers and big tech companies on the
news, on the radio, on the internet, on social media, on billboards, in newspapers, essentially
anywhere one turns. Taking the COVID-19 vaccine has clearly been ascribed supreme importance,
absolute and worthy of special reverence. These qualities are what make a religion. To receive
these vaccines, I would be guilty of subjecting myself to the demands of those who have idolized
COVID-19 vaccination as the only way to live a happy life. However, I am a follower of Christ and
Iam commanded not to follow or have affection for any other gods (Exodus 20:3-5).

Observing history, the evil actions of the drug and vaccine industry are clearly evident.
Simply look into AZT for AIDs, the Polio Cutter Incident and Polio SV40, Swine Flu vaccine and
the Stanley Plotkin deposition. From vaccines contaminated with viruses to experimentation on
babies whose mothers were imprisoned. These historical examples show how greed, rushed FDA
approvals and conflicts of interest resulted in a multitude of innocent humans killed or permanently
maimed over decades. These same actions, especially rushed FDA approval, took place for
COVID-19 vaccines. There is not a single medical professional or expert in the world who can
describe or state with particularity the long-term effects of the current COVID-19 vaccines.
However, we now know what the near-term affects are. As of this writing, there are 23,990
reported deaths and 43,476 permanently disabled individuals by COVID-19 vaccines as shown in
the VAERS public database managed by the CDC and FDA. Comparably, only 605 deaths were
reported as adverse events to all vaccines combined in the calendar year 2019 (prior to COVID-19
vaccines). During the Swine Flu vaccine debacle in 1976, the vaccination campaign was shut down
forever when adverse events reached 94 cases of paralysis. Yet today, the vaccine campaign
continues for DoD personnel despite high adverse events and such a low threat from the COVID-19
disease. Continuing to authorize and mandate the use of COVID-19 vaccines with such high
adverse events that cause suffering and death, is evil. As a Christian, I have been commanded by
God to turn away from the path of evildoers (Prov 4:14-15). By following the Lord’s command in
turning from this evil and not taking the COVID-19 vaccines, I will be protecting my physical
health and spiritual health, as God cares for both.

The governing officials who have the responsibility to protect Americans from harmful
drugs and vaccines are failing. God’s word states, “you can identify people by their actions” (Matt
7:20). As such, through the actions of these governing officials throughout the COVID-19
pandemic, I have identified them as untrustworthy. If these current governing entities cannot or will
not protect Americans in managing the safety of the COVID-19 vaccines, how can they be trusted
to govern the safety of other vaccines? The mis-management of the COVID-19 vaccine in regard to

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safety directly correlates to the continued safety management of routine and non-routine
vaccinations. In 1 Corinthians 3:16-17, God’s word declares that His Holy Spirit dwells within me
and that Iam His temple. It goes on to say if anyone destroys God’s temple, He will destroy that
person. I am to care for this body as it is the dwelling place of God’s Holy Spirit, if I do not, I will
face the wrath of God. As such, I cannot in good faith allow the injection of any routine, non-
routine or COVID-19 vaccines into my healthy body knowing the great harm they may do to this
temple of God.

12. There are no effects upon command mission accomplishment for grounds to disapprove this
accommodation. Since the beginning of the COVID-19 pandemic a large number of personnel
became infected with COVID-19. Both vaccinated and un-vaccinated alike. The average recovery
time was two weeks or less before returning to work. The divisions I worked in and the command
itself still accomplished its mission in training the same amount of EOD ascension students as years
prior. Not one of our 327 command staff members have been permanently removed from
performing their duty due to getting COVID-19. As detailed prior in this RA, natural immunity has
proven to be superior to vaccine induced immunity. A large number of our command staff have
now had and recovered from COVID-19, including myself. My accommodation from being
vaccinated will have zero effect on the command meeting its mission.

Approving this accommodation, will not produce a negative effect on health or safety as
both vaccinated and un-vaccinated at the command have been infected with COVID-19.
Additionally, less restrictive means than denial of this accommodation exist. Alternate means of
mitigating the transmission of COVID-19 or any disease include: Masks, distancing, performing
activities or training outdoors, weekly COVID-19 testing and staying home when symptomatic. I
claim I have utilized a combination of these alternate means since checking into the command July
2020 to present day all while performing the responsibilities of my occupation in the same period.
No studies or proof have been provided showing these alternate means are not available or not
effective. No proof or studies have been provided showing natural immunity does not mitigate
COVID-19.

When not at my private desk, my instructor duties take place in open air outdoors.
Although billeted as an instructor, “hands-on” training does not mean hands-on the students. It
means students are getting their hands on tools and equipment while performing training. The
training objectives are met without me putting hands on the students. With me following our
proven mitigation protocols and the large majority of staff being vaccinated or naturally immune,
there will be no negative effect on health or safety in approving this accommodation.

Unit cohesion and good order will not be negatively affected by approving this
accommodation. My convictions on vaccines are mine and in Romans 14:1-6 I am instructed not to
attack others’ convictions or cause divisions. I will continue to abide by this as a believer and
Naval Officer and continue to promote good order and discipline to those I am assigned over. The
submission of this Religious Accommodation for vaccination is not counter to a display of good
order and discipline. To the contrary, it is an example of good order and discipline as I strive to
abide by the rules and regulations as provided for Religious Accommodations.
189a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 146 of 160 PagelD 4582
Subj: REQUEST FOR WAIVER OF POLICY IN SUPPORT OF RELIGIOUS PRACTICE

13. These COVID-19 vaccinations were created, approved and mandated under a hyped worldwide
fear. The vaccines have been idolized as the only hope of having a normal life. They have been
created and approved by an industry marred by evil effects whose actions are being repeated. The
governing entities in charge of vaccine safety continue to allow known suffering and death. In all
these ways, accepting any routine, non-routine or COVID-19 vaccines into my body would violate
God’s instructions as directed to me through His Holy Word. My faith is not new and it has played
a large role in my life and the life of my family. An example of how my faith has directed our
health and wellness in past years is through the births of our three younger children. My wife
successfully birthed each of our three children at home with a midwife, naturally and without
medicine or a doctor. The births were VBACs (vaginal birth after caesarean) due to our first child
being born by caesarean. VBACs are considered high-risk births, by many medical professionals,
even in a hospital setting. Through careful research, consideration and prayer, it was ultimately our
faith in God and His provisions for us that navigated us through all three safe and successful home
births resulting in three wonderful and healthy children. Approval of this Religious
Accommodation waiver from the COVID-19 vaccines allows me to serve my Nation in the United
States Navy as I continue standing upon my long-held religious convictions.

14. Based upon the above arguments and enclosures in support, I respectfully request review of my

religious accommodation request.

D. J. Franklin
190a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 147 of 160 PagelD 4583
DEPARTMENT OF THE NAVY
OFFICE OF THE CHIEF OF NAVAL OPERATIONS
2000 NAVY PENTAGON
WASHINGTON DC 20350-2000

1730
Ser N1/115723
23 Nov 21

From: Deputy Chief of Naval Operations (Manpower, Personnel, Training and Education) (N1)
To: LT Daniel J. Franklin, USN
Via: Commanding Officer, Naval School Explosive Ordnance Disposal

Subj: REQUEST FOR RELIGIOUS ACCOMMODATION THROUGH WAIVER OF
IMMUNIZATION REQUIREMENTS

Ref: (a) 42 U.S.C. §2000bb-1
(b) DoD Instruction 1300.17 of 1 September 2020
(c) SECNAVINST 1730.8B
(d) ASN (M&RA) memo of 6 Jun 13
(e) MILPERSMAN 1730-020
(f) United States Attorney General memo of 6 Oc 17
(g) Your Itr of 20 Sep 21 w/ends
(h) BUMED Itr 6320 Ser M44/21UM40931 of 19 Oct 21

1. Pursuant to references (a) through (h), your request for religious accommodation through
waiver of immunization requirements is disapproved. You must receive all required vaccines.
However, you are free to request from your healthcare provider alternative vaccines that are
available and meet the Navy’s immunization requirements, as determined by a credentialed
military healthcare provider. You are free to choose which COVID-19 vaccine to take. If you
choose a COVID-19 vaccine that requires two doses, you must receive your first dose within five
calendar (5) days upon receipt of this letter and complete the series as prescribed. If you choose
a one-dose vaccine you must receive the vaccine within five calendar (5) days upon receipt of
this letter.

2. In line with references (b) through (d), I am designated as the approval authority for requests
for religious accommodation.

3. Reference (a), the Religious Freedom Restoration Act (RFRA), states that the Government
may substantially burden an individual’s exercise of religion only if 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 interest. Reference (b) incorporates the RFRA
and notes that the Government has a compelling interest in mission accomplishment, to include
military readiness, unit cohesion, good order and discipline, health and safety, on both individual
and unit levels. Additionally, unless it will have an adverse impact on mission accomplishment,
including military readiness, unit cohesion and good order and discipline, the Navy will
accommodate individual expressions of sincerely held beliefs of Sailors. Reference (f)

Pls.' Mot. for Classwide Prelim. Inj. App. 0144
191a

Case 4:21-cv-01236-O0 Document 134 Filed 02/28/22 Page 148 of 160 PagelD 4584
Subj: REQUEST FOR RELIGIOUS ACCOMMODATION THROUGH WAIVER OF
IMMUNIZATION REQUIREMENTS

emphasizes that only those interests of the highest order can overbalance legitimate claims to the
free exercise of religion.

4. All requests for accommodation of religious practices are assessed on a case-by-case basis.
In line with references (b) and (c), determination of a request for religious accommodation
requires consideration of the following factors:

a. Impact on military readiness, unit cohesion, good order and discipline, health and safety
b. Religious importance of the request

c. Cumulative impact of repeatedly granting similar requests

d. Whether there are alternatives available to meet the requested accommodation and

e. How other such requests have been treated

5. In making this decision, I reviewed reference (g), including the endorsements from your
chain of command, the local chaplain and the advice of Chief, Bureau of Medicine and Surgery
in reference (h).

a. A waiver of immunizations would have a predictable and detrimental effect on your
readiness and the readiness of the Sailors who serve alongside you in both operational and non-
operational (including training) environments. Primary prevention of disease through
immunizations has been a key enabler for maintaining force health and avoiding disease-related
non-battle injury. Granting your request will have a direct and foreseeable negative impact on
the compelling Government interests of military readiness and health of the force.

b. While serving in the U.S. Navy, you will inevitably be expected to live and work in close
proximity with your shipmates. I find that disapproval of your request for a waiver of
immunization requirements is the least restrictive means available to preserve the Department of
Defense’s compelling interest in military readiness, mission accomplishment and the health and
safety of military Service Members.

6. The Navy is a specialized community governed by a discipline separate from that of the rest
of society. While every Sailor is welcome to express a religion of choice or none at all, our
greater mission sometimes requires reasonable restrictions. You have my sincere best wishes for
your continued success in your Navy career.

JOHN B. NOWELL, JR

Copy to:
OPNAV (N131, NO975)
BUMED

Pls.' Mot. for Classwide Prelim. Inj. App. 0145
193a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 150 of160 PagelD 4586
DEPARTMENT OF THE NAVY
OFFICE OF THE CHIEF OF NAVAL OPERATIONS
2000 NAVY PENTAGON
WASHINGTON DC 20350-2000

1730
Ser N1/118245
24 Feb 22

From: Deputy Chief of Naval Operations (Manpower, Personnel, Training and Education) (N1)
To: LT Daniel J. Franklin, USN
Via: Commanding Officer, Naval School Explosive Ordnance Disposal

Subj: REQUEST FOR WAIVER OF POLICY IN SUPPORT OF RELIGIOUS PRACTICE

Ref: (a) LT Daniel J. Franklin, USN Itr of 23 Feb 22 w/ends
(b) BUPERSINST 1730.11A
(c) DCNO/N1 RA Response Itr of 23 Nov 21
(d) CNO Appeal RA Response Itr of 15 Feb 22

1. Your request in reference (a) is denied. Contrary to your assertion, there have been no
substantive changes to the physical environment since your original request and appeal. The
compelling government interest in ensuring mission accomplishment, to include military
readiness, unit cohesion, good order and discipline, health and safety, on both individual and unit
levels remains the same.

2. As provided in reference (b), members are afforded the opportunity to renew requests when
the physical, operational, or geographical environment in which they work or operate has
changed. In your case, the environment has not materially changed. Specifically, and as already
noted in references (c) and (d), you remain an Explosive Ordnance Disposal officer and an
instructor interacting with Sailors. Further, a waiver of the COVID-19 immunization would
continue to have a predictable and detrimental effect on your readiness and the readiness of the
Sailors who serve alongside you in both operational and non-operational environments.

Granting your request would still have a direct and foreseeable negative impact on the
compelling government interests of military readiness and health of the force. Finally, while no
vaccine is completely effective, vaccines reduce disease incidence and disease severity.

NOWELL.JOHN.BL pigitally signed by
05761 1 835 Date: 2022.02.24 20:43:15 -05'00'

JOHN B. NOWELL, JR

Copy to:
OPNAV (N131, N0975)
BUMED
195a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 152 of 160 PagelD 4588

From: Rogers, Casey LLCDR USN NAVSCOLEOD EGLIN FL (USA) <casey.|.rogers.mil@us.navy.mil>

Sent: Friday, February 25, 2022 3:41 PM

To: Franklin, Daniel J LT USN (USA) <daniel.j.franklin@navy.mil>

Cc: Beall, Steven Gene CAPT USN NAVSCOLEOD EGLIN FL (USA) <steven.g.beall.mil@us.navy.mil>
Subject: Fw: RELIGIOUS ACCOMMODATION (RA) PACKAGE WITH ENDORSEMENT ICO LT DANIEL J.
FRANKLIN

Dan,

Email from the DCNO's office as requested.

V/R,

XO

From: Cua, Diane S CDR USN DCNO N11 (USA) <diane.s.cua.mil@us.navy.mil>

Sent: Friday, February 25, 2022 3:14 PM

To: Stewart, Charles M CIV USN NAVSCOLEOD EGLIN FL (USA) <charles.m.stewart.civ@us.navy.mil>;
Katson, Mery Angela Sanabria CAPT USN DCNO N11 (USA) <mery.a.katson.mil@us.navy.mil>

Cc: Rogers, Casey LLCDR USN NAVSCOLEOD EGLIN FL (USA) <casey.|.rogers.mil@us.navy.mil>; Beall,
Steven Gene CAPT USN NAVSCOLEOD EGLIN FL (USA) <steven.beall@navy.mil>;

<ALTN Navy Religious Accommodations@navy.mil>

Subject: RE: RELIGIOUS ACCOMMODATION (RA) PACKAGE WITH ENDORSEMENT ICO LT DANIEL J.
FRANKLIN

Mr. Stewart,

Good afternoon. Please find attached DCNO N1’s response to LT Franklin’s request for waiver of policy
in support of religious practice. The conditions described do not constitute valid “change|[s] in physical,
operational or geographical environment.” Therefore, the previously adjudicated Religious
Accommodation from CNO remains in effect. Request you (or your designee):

(1) acknowledge receipt of DCNO N1’s letter by responding to this email (kindly reply to all above).

(2) provide DCNO N1’s response to LT Franklin.

(3) update the CCDA database with the appropriate entry. Specifically, change the entry from
“unvaccinated, pending religious accommodation” to (NAVADMIN 249/21):

a. ‘unvaccinated, vaccination series started but not complete’ if the service member initiated the two
series vaccination (Pfizer or Moderna), OR

b. ‘vaccination series complete, previously reported as unvaccinated’ if the service member received
196a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 153 of 160 PagelD 4589

the one shot vaccination (Johnson & Johnson), OR
c. ‘unvaccinated, refuser’ if the service member decided to not comply with CNO’s direction.

Note: These updates can be made via the My Navy Portal Site: https://www.mnp.navy.mil/group/navy-
covid-19-
reporting<https://usg01.safelinks.protection.office365.us/?url=https%3A%2F%2Fwww.mnp.navy.mil%2
Fgroup%2Fnavy-covid-19-
reporting&data=04%7C01%7Cdaniel.j.franklin5.mil%40us.navy.mil%7Cffcade56e5624e6eb6a308d9f8a7
7bcf%7Ce3333e00c8774b87b6ad45e942de1750%7C0%7C0%7C637814220483271758%7CUnknown%7C
&sdata=tUhEgalhoCm5cDayMSBuAH92Su06rroxXl1hPnTvPTDM%3D&reserved=0> (NAVADMIN 249/21
pertains).

V/r

Diane

CDR Diane Cua

OPNAV N131B

Deputy Branch Head, Officer Plans and Policy

diane.s.cua.mil@us.navy.mil<mailto:diane.s.cua.mil@us.navy.mil>

Office: (703) 604-5023
197a

Case 4:21-cv-01236-O Document 115 *SEALED* Filed 02/10/22 Page 1010f102 PagelD 3425

DEPARTMENT OF DEFENSE
SPECIAL OPERATIONS COMMAND-KOREA
UNIT #15622
APO AP 96271-5622

14 Aprit 2021
MEMORANDUM FOR SOCKOR/SOJ1
FROM: SOCKOR/SOJ0-CG

SUBJECT: Recommendation for Award

To: EODCS Bxe)bml United States Navy

1. Service member approved for: Joint Service Commendation Medal

2. The point of contact for this award is SGT Walker, USA, who may be reached at DSN

OTTO K. LILLER
Brigadier General, USA
Commanding

PX-26
198a

Case 4:21-cv-01236-O Document 115 *SEALED* Filed 02/10/22 Page 102 o0f102 PagelD 3426

Citation

TO ACCOMPANY THE AWARD OF THE

Joint Service Commendation Medal

TO
Senior Chief Petty Officer EOD 1 United States Navy, distinguished himself by

exceptionally meritorious service as Navy Explosive Ordnance Disposal Task Element Leading
Chief Petty Officer for Special Operations Command, Korea from January 2020 to July 2020.
Senior Chief OP—M coordinated 41 days of training with 73 Republic of Korea partner force
members, resulting in 13 joint full mission profiles focusing on critical mission specific areas in
an effort to strengthen bilateral capabilities and Influence command level operational procedures
on the Korean peninsula. Senior Chief BX@SMMfacilitated 37 unilateral air, surface, and maritime
engagements with United States Army, Air Force and Navy forces focused on seamless
interoperability in theatre specific operational requirements for conventional and special
operations forces. While assigned to the Korean Theatre of Operations Senior Chief EOD
supervised his platoon’s flawless execution of 76 joint service engagements resulting in over
18,000 man-hours of training and 11 high-risk evolutions with 21 different United States and
Republic of Korea partner forces while safely navigating restricted movement and distancing
requirements. The distinctive accomplishments of Senior Chief /EOD 1 git credit upon himself,
the United States Navy, and the Department of Defense.
199a

CUI

DEPARTMENT OF THE NAVY
OFFICERIN-CHARGE
NAVAL SPECIAL WARFARE GROUP EIGHT
TRAINING DETACHMENT

1730
11 Feb 22

From: Officer-in-Charge, Naval Special Warfare Group EIGHT, Training Detachment
To: CWO3 BRN | USN

Subj: NOTIFICATION OF CWO3 USN IRT CHIEF OF NAVAL
OPERATIONS DECISION DTD 23 JAN 22

Encl: CNO ltr 1730 Ser NOO of 23 Jan 22

1. As of 11 February 2022, you are in receipt of the Chief of Naval Operations’ decision
regarding your appeal of 7 November 2021.

2. In accordance with NAVADMIN 283/21, service members whose COVID-19 vaccination
exemption request is denied are required to receive the COVID-19 vaccine as directed by the
exemption adjudicating authority or commence vaccination within 5 days of being notified of the
denial if the exemption adjudicating authority does not specify. However, should you choose not
to become fully vaccinated within the required time frame, follow on action as required per
NAVADMIN 225/21 will be withheld until resolution of the pending civil litigation to which
you are a party, in accordance with the preliminary injunction issued 3 January 2022.

J.T. SIMMONS

FIRST ENDORSEMENT on Letter of Notification dtd 11 Feb 22

From: CWO3 NS UsN
To: — Officer-in-Charge, Naval Special Warfare Group EIGHT, Training Detachment

1. | acknowledge receipt of the above Letter of Notification concerning my religious
accommodation appeal. I have read and understand the contents of the enclosure.
/s/ SEAL 16
SEAL 16

Controlled by: NSWG8
CUI Category: PRIVACY
D/D Conuols: FEDCON
POC: 757-763-5367

CUI

(199a)
200a

DEPARTMENT OF THE NAVY
CHIEF OF NAVAL OPERATIONS
2000 NAVY PENTAGON
WASHINGTON DC 20350-2000

1730
N00
23 Jan 22

From: Chief of Naval Operations
Via: Commander, Naval Special Warfare Group EIGHT

Subj: APPEAL OF RELIGIOUS ACCOMMODATION FOR IMMUNIZATION
REQUIREMENT

Ref: (a) DCNO (N1) Itr 1730 Ser N1/114428 of 27 Oct 21
(b) DoD Instruction 1300.17 of 1 Sep 2020
(c) SECNAVINST 1730.8B
(d) ASN (M&RA) memo of 6 Jun 13
(e) BUPERSINST 1730.11A
(f) CHBUMED Itr 6320 Ser M44/21UM40416 of 7 Oct 21
(g) NAVADMIN 190/21

1. Your appeal of reference (a) is disapproved. | am disapproving your appeal due to the Navy’s
compelling governmental interest in preventing spread of diseases to support mission
accomplishment, including military readiness, unit cohesion, good order and discipline, and
health and safety, at the individual, unit, and organizational levels. A waiver of immunizations
would have a predictable and detrimental effect on the readiness of you and the Sailors who
serve alongside you. Granting your request will have a direct and foreseeable negative impact on
the compelling governmental interest in military readiness and health of the force. I further find
that there are no less restrictive means to achieve the Navy’s compelling governmental interest.

2. References (b) through (e) designate me as the final appeal authority for requests for religious
accommodation.

3. I considered your original request, your appeal, and the endorsements on your
correspondence. Your billet as training officer for a special operations command weighed
heavily in my consideration. In reviewing your appeal, I evaluated the request under the
assumption that your religious beliefs are sincere and would be substantially burdened. This
assumption is not an endorsement of your religious belief that the vaccine requirement of
reference (g) is in violation of the Constitution. As explained in reference (f), while no vaccine
is 100 percent effective, vaccines with lower effectiveness still reduce disease incidence in the
population, reduce an individual’s risk of contracting the disease, and generally reduce the
severity of disease for those who do contract the illness. In addition, the current coronavirus
disease 2019 (COVID-19) pandemic further highlights the importance of vaccination in both
individual and unit force health protection.

4. Vaccination of Navy personnel can impact both individual and unit mission accomplishment.
It reduces the risk to the individual for disease-related performance impairment, and it reduces
201a

Subj: APPEAL OF RELIGIOUS ACCOMMODATION FOR IMMUNIZATION
REQUIREMENT

the risk to the unit for disease outbreaks of contagious diseases such as COVID-19. While non-
pharmacologic measures such as personal hygiene, mask wearing, and social distancing can also
reduce the risk of disease outbreaks, they too are not 100 percent effective and must be
implemented in conjunction with immunization to reduce the risk of mission failure. As
explained in reference (f), these measures are not as effective as vaccination in maintaining
military readiness and the health of the force.

5. You must now become fully vaccinated against COVID-19 in accordance with reference (g).
You are free to choose which authorized COVID-19 vaccine to take, but you must receive a
vaccine within five calendar days upon receipt of this letter. If you choose a COVID-19 vaccine
that requires two doses, you must complete the series as prescribed.

6. The Navy welcomes people of all faiths and no faith to join our ranks in patriotic service.
Our greater mission sometimes requires reasonable restrictions. You have my sincere best
wishes for your continued success in your Navy career.

Copy to:

ASN (M&RA)
OPNAV (N131)
BUMED
202a

DEPARTMENT OF THE NAVY
OFFICE OF THE CHIEF OF NAVAL OPERATIONS
201) NAVY PENTAGOS.
Wastincron DC 20350 2000

1730
Ser N1/116418
2 Dec 21

From: Deputy Chief of Naval Operations (Manpower, Personnel, Training and Education) (N 1)

To: SOC(SEAL) SEENON. USN

Via: Commanding Officer, Naval Special Warfare Advanced Training Command

Subj: REQUEST FOR RELIGIOUS ACCOMMODATION THROUGH WAIVER OF
IMMUNIZATION REQUIREMENTS

Ref: (a) 42 U.S.C. §2000bb-1
(b) DoD Instruction 1300.17 of | September 2020
(c) SECNAVINST 1730.8B
(d) ASN (M&RA) memo of 6 Jun 13
(e) MILPERSMAN 1730-020
(f) United States Attomey General memo of 6 Oct 17
(g) Your ltr of 16 Oct 21 w/ends
(h) BUMED Itr 6320 Ser M44/21UM42334 of 10 Nov 21

1. Pursuant to references (a) through (h), your request for religious accommodation through
waiver of immunization requirements is disapproved. You must receive all required vaccines.
However, you are free to request from your healthcare provider alternative vaccines that are
available and meet the Navy’s immunization requirements, as determined by a credentialed
military healthcare provider. You are free to choose which COVID-19 vaccine to take. If you
choose a COVID-19 vaccine that requires two doses, you must receive your first dose within five
calendar (5) days upon receipt of this letter and complete the series as prescribed. If you choose
a one-dose vaccine you must receive the vaccine within five calendar (5) days upon receipt of
this letter.

2. In line with references (b) through (d), | am designated as the approval authority for requests
for religious accommodation.

3. Reference (a), the Religious Freedom Restoration Act (RFRA), states that the Government
may substantially burden an individual’s exercise of religion only if 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 interest. Reference (b) incorporates the RFRA
and notes that the Government has a compelling interest in mission accomplishment, to include
military readiness, unit cohesion, good order and discipline, health and safety, on both individual
and unit levels. Additionally, unless it will have an adverse impact on mission accomplishment,
including military readiness, unit cohesion and good order and discipline, the Navy will
accommodate individual expressions of sincerely held beliefs of Sailors. Reference (f)
emphasizes that only those interests of the highest order can overbalance legitimate claims to the
free exercise of religion.

PX-19
208a

Subj: REQUEST FOR RELIGIOUS ACCOMMODATION THROUGH WAIVER OF
IMMUNIZATION REQUIREMENTS

4. All requests for accommodation of religious practices are assessed on a case-by-case basis.
In line with references (b) and (c), determination of a request for religious accommodation
requires consideration of the following factors:

a. Impact on military readiness, unit cohesion, good order and discipline, health and safety
b. Religious importance of the request

c. Cumulative impact of repeatedly granting similar requests
d. Whether there are alternatives available to meet the requested accommodation and

e. How other such requests have been treated

5. In making this decision, I reviewed reference (g), including the endorsements from your
chain of command, the local chaplain and the advice of Chief, Bureau of Medicine and Surgery
in reference (h).

a. A waiver of immunizations would have a predictable and detrimental effect on your
readiness and the readiness of the Sailors who serve alongside you in both operational and non-
operational (including training) environments. Primary prevention of disease through
immunizations has been a key enabler for maintaining force health and avoiding disease-related
non-battle injury. Granting your request will have a direct and foreseeable negative impact on
the compelling Government interests of military readiness and health of the force.

b. While serving in the U.S. Navy, you will inevitably be expected to live and work in close
proximity with your shipmates. I find that disapproval of your request for a waiver of
immunization requirements is the least restrictive means available to preserve the Department of
Defense’s compelling interest in military readiness, mission accomplishment and the health and
safety of military Service Members.

6. The Navy is a specialized community governed by a discipline separate from that of the rest
of society. While every Sailor is welcome to express a religion of choice or none at all, our
greater mission sometimes requires reasonable restrictions. You have my sincere best wishes for
your continued success in your Navy career.

NOWELL.JOHN.BL oguysimesty

057611835 Dota: 2024.12.03 18:19:53 -2500"

JOHN B. NOWELL, JR

to:
OPNAV (N131, N0975)
BUMED
COMNAVSPECWARCEN
COMNAVSPECWARCOM
204a

DEPARTMENT OF THE NAVY
OFFICE OF THE CHIEF OF NAVAL OPERATIONS
2000 NAVY PENTAGON
WASHINGTON DC 20350-2000

1730
Ser N1/115638
22 Nov 21

From: Deputy Chief of Naval Operations (Manpower, Personnel, Training and Education) (N1)

To: SO1(SEAL) SEAL 3 USN

Via: Commanding Officer, Naval Special Warfare Advanced Training Command

Subj: REQUEST FOR RELIGIOUS ACCOMMODATION THROUGH WAIVER OF
IMMUNIZATION REQUIREMENTS

Ref: (a) 42 U.S.C. §2000bb-1
(b) DoD Instruction 1300.17 of 1 September 2020
(c) SECNAVINST 1730.8B
(d) ASN (M&RA) memo of 6 Jun 13
(e) MILPERSMAN 1730-020
(f) United States Attorney General memo of 6 Oct 17
(g) Your ltr of 16 Oct 21 w/ends
(h) BUMED Itr 6320 Ser M44/21UM42170 of 9 Nov 21

1. Pursuant to references (a) through (h), your request for religious accommodation through
waiver of immunization requirements is disapproved. You must receive all required vaccines.
However, you are free to request from your healthcare provider alternative vaccines that are
available and meet the Navy’s immunization requirements, as determined by a credentialed
military healthcare provider. You are free to choose which COVID-19 vaccine to take. If you
choose a COVID-19 vaccine that requires two doses, you must receive your first dose within five
calendar (5) days upon receipt of this letter and complete the series as prescribed. If you choose
a one-dose vaccine you must receive the vaccine within five calendar (5) days upon receipt of
this letter.

2. In line with references (b) through (d), I am designated as the approval authority for requests
for religious accommodation.

3. Reference (a), the Religious Freedom Restoration Act (RFRA), states that the Government
may substantially burden an individual’s exercise of religion only if 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 interest. Reference (b) incorporates the RFRA
and notes that the Government has a compelling interest in mission accomplishment, to include
military readiness, unit cohesion, good order and discipline, health and safety, on both individual
and unit levels. Additionally, unless it will have an adverse impact on mission accomplishment,
including military readiness, unit cohesion and good order and discipline, the Navy will
accommodate individual expressions of sincerely held beliefs of Sailors. Reference (f)
emphasizes that only those interests of the highest order can overbalance legitimate claims to the
free exercise of religion.

PX-11
205a

Subj: REQUEST FOR RELIGIOUS ACCOMMODATION THROUGH WAIVER OF
IMMUNIZATION REQUIREMENTS

4. All requests for accommodation of religious practices are assessed on a case-by-case basis.
In line with references (b) and (c), determination of a request for religious accommodation
requires consideration of the following factors:

a. Impact on military readiness, unit cohesion, good order and discipline, health and safety
b. Religious importance of the request

c. Cumulative impact of repeatedly granting similar requests

d. Whether there are alternatives available to meet the requested accommodation and

e. How other such requests have been treated

5. In making this decision, I reviewed reference (g), including the endorsements from your
chain of command, the local chaplain and the advice of Chief, Bureau of Medicine and Surgery
in reference (h).

a. A waiver of immunizations would have a predictable and detrimental effect on your
readiness and the readiness of the Sailors who serve alongside you in both operational and non-
operational (including training) environments. Primary prevention of disease through
immunizations has been a key enabler for maintaining force health and avoiding disease-related
non-battle injury. Granting your request will have a direct and foreseeable negative impact on
the compelling Government interests of military readiness and health of the force.

b. While serving in the U.S. Navy, you will inevitably be expected to live and work in close
proximity with your shipmates. I find that disapproval of your request for a waiver of
immunization requirements is the least restrictive means available to preserve the Department of
Defense’s compelling interest in military readiness, mission accomplishment and the health and
safety of military Service Members.

6. The Navy is a specialized community governed by a discipline separate from that of the rest
of society. While every Sailor is welcome to express a religion of choice or none at all, our
greater mission sometimes requires reasonable restrictions. You have my sincere best wishes for
your continued success in your Navy career.

JOHN B. NOWELL, JR

Copy to:

OPNAV (N131, NO975)
BUMED

NSWC
206a

DEPARTMENT OF THE NAVY
OFFICE OF THE CHIEF OF NAVAL OPERATIONS
2000 NAVY PENTAGON

1730
5 Oct 21

From: Deputy Chief of Naval Operations (Manpower, Personnel, Training and Education) (NI)
To: EODCS Hgxeeml USN

Via: Commanding Officer, Naval School Explosive Ordinance Disposal

Subj: REQUEST FOR RELIGIOUS ACCOMMODATION THROUGH WAIVER OF
IMMUNIZATION REQUIREMENTS

Ref: (a) 42 U.S.C. §2000bb-1
(b) DeD Instruction 1300.17 of 1 September 2020
(c) SECNAVINST 1730.88
(d} ASN (M&RA) memo of 6 Jun 13
(e) MILPERSMAN 1730-020
(f) United States Attommey General memo of 6 Oct 17
(g) Your ltr of 17 Aug 21
(h) BUMED itr 6320 Ser M44/21UM40112 of 24 Sep 21

1. Pursuant to references (a) through (h), your request for religious accommodation through
waiver of immunization requirements is disapproved, You mast receive ail required vaccines.
However, you are free to request from your healthcare provider alternative vaccines that are
available and meet the Navy’s immunization requirements, as determined by a credentialed
military healthcare provider.

2. Ie line with references (b) through (4), 1 am designated as the approval authority for requests
for religious accommodation.

3. Reference (a), the Religious Freedom Restoration Act (RFRA), states that the Government
may substantially burden an individual’s exercise of religion only if it demonsirates 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 interest. Reference (b) incorporates the RFRA
and notes that the Government has a compelling interest in mission accomplishment, to include
military readiness, unit cohesion, good order and discipline, health and safety, on both individual
and unit levels. Additionally, unless it will have an adverse impact on mission accomplishment,
including military readiness, unit cchesion and good order and discipline, the Navy will
accommodate individual expressions of sincerely held beliefs of Sailors. Reference (f)
emphasizes that only those interests of the highest order can overbalance legitimate claims to the
free exercise of religion.

PX-24
208a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 32 of 160 PagelD 4468

DEPARTMENT OF THE NAVY
OFFICE OF THE CHIEF OF NAVAL OPERATIONS
2000 NAVY PENTAGON
WASHINGTON DC 20350-2000

1730
Ser N1/115772
23 Nov 21

From: Deputy Chief of Naval Operations (Manpower, Personnel, Training and Education) (N1)
To: CDR Robert A. Green Jr., USN
Via: Commanding Officer, Maritime Expeditionary Security Squadron EIGHT

Subj: REQUEST FOR RELIGIOUS ACCOMMODATION THROUGH WAIVER OF
IMMUNIZATION REQUIREMENTS

Ref: (a) 42 U.S.C. §2000bb-1
(b) DoD Instruction 1300.17 of 1 September 2020
(c) SECNAVINST 1730.8B
(d) ASN (M&RA) memo of 6 Jun 13
(ec) MILPERSMAN 1730-020
(f) United States Attorney General memo of 6 Oct 17
(g) Your ltr of 19 Oct 21 w/ends
(h) BUMED Itr 6320 Ser M44/21UM41350 of 28 Oct 21

1, Pursuant to references (a) through (h), your request for religious accommodation through
waiver of immunization requirements is disapproved. You must receive all required vaccines.
However, you are free to request from your healthcare provider alternative vaccines that are
available and meet the Navy’s immunization requirements, as determined by a credentialed
military healthcare provider. You are free to choose which COVID-19 vaccine to take. If you
choose a COVID-19 vaccine that requires two doses, you must receive your first dose within five
calendar (5) days upon receipt of this letter and complete the series as prescribed. If you choose
a one-dose vaccine you must receive the vaccine within five calendar (5) days upon receipt of
this letter.

2. In line with references (b) through (d), I am designated as the approval authority for requests
for religious accommodation.

3. Reference (a), the Religious Freedom Restoration Act (RFRA), states that the Government
may substantially burden an individual’s exercise of religion only if 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 interest. Reference (b) incorporates the RFRA
and notes that the Government has a compelling interest in mission accomplishment, to include
military readiness, unit cohesion, good order and discipline, health and safety, on both individual
and unit levels. Additionally, unless it will have an adverse impact on mission accomplishment,
including military readiness, unit cohesion and good order and discipline, the Navy will
accommodate individual expressions of sincerely held beliefs of Sailors. Reference (f)
209a

Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 33 0f 160 PagelD 4469

Subj: REQUEST FOR RELIGIOUS ACCOMMODATION THROUGH WAIVER OF
IMMUNIZATION REQUIREMENTS

emphasizes that only those interests of the highest order can overbalance legitimate claims to the
free exercise of religion.

4. All requests for accommodation of religious practices are assessed on a case-by-case basis.
In line with references (b) and (c), determination of a request for religious accommodation
requires consideration of the following factors:

a. Impact on military readiness, unit cohesion, good order and discipline, health and safety
b. Religious importance of the request

c. Cumulative impact of repeatedly granting similar requests

d. Whether there are alternatives available to meet the requested accommodation and

e. How other such requests have been treated

5. In making this decision, I reviewed reference (g), including the endorsements from your
chain of command, the local chaplain and the advice of Chief, Bureau of Medicine and Surgery
in reference (h).

a. A waiver of immunizations would have a predictable and detrimental effect on your
readiness and the readiness of the Sailors who serve alongside you in both operational and non-
operational (including training) environments. Primary prevention of disease through
immunizations has been a key enabler for maintaining force health and avoiding disease-related
non-battle injury. Granting your request will have a direct and foreseeable negative impact on
the compelling Government interests of military readiness and health of the force.

b. While serving in the U.S. Navy, you will inevitably be expected to live and work in close
proximity with your shipmates. I find that disapproval of your request for a waiver of
immunization requirements is the least restrictive means available to preserve the Department of
Defense’s compelling interest in military readiness, mission accomplishment and the health and
safety of military Service Members.

6. The Navy is a specialized community governed by a discipline separate from that of the rest
of society. While every Sailor is welcome to express a religion of choice or none at all, our
greater mission sometimes requires reasonable restrictions. You have my sincere best wishes for
your continued success in your Navy career.

NOWELL.JOHN.BL pigtaity signed by
057611835 Date; 2021.11.23 12:58:47 -05°00'

JOHN B. NOWELL, JR

Copy to:
OPNAV (N131, N0975)
BUMED
210a

DEPARTMENT OF THE NAVY
OFFICE OF THE CHIEF OF NAVAL OPERATIONS
2000 NAVY PENTAGON
WASHINGTON DC 20350-2000

1730
Ser N1/115723
23 Nov 21

From: Deputy Chief of Naval Operations (Manpower, Personnel, Training and Education) (N1)
To: LT Daniel J. Franklin, USN
Via: Commanding Officer, Naval School Explosive Ordnance Disposal

Subj: REQUEST FOR RELIGIOUS ACCOMMODATION THROUGH WAIVER OF
IMMUNIZATION REQUIREMENTS

Ref: (a) 42 U.S.C. §2000bb-1
(b) DoD Instruction 1300.17 of 1 September 2020
(c) SECNAVINST 1730.8B
(d) ASN (M&RA) memo of 6 Jun 13
(e) MILPERSMAN 1730-020
(f) United States Attorney General memo of 6 Oc 17
(g) Your Itr of 20 Sep 21 w/ends
(h) BUMED Itr 6320 Ser M44/21UM40931 of 19 Oct 21

1. Pursuant to references (a) through (h), your request for religious accommodation through
waiver of immunization requirements is disapproved. You must receive all required vaccines.
However, you are free to request from your healthcare provider alternative vaccines that are
available and meet the Navy’s immunization requirements, as determined by a credentialed
military healthcare provider. You are free to choose which COVID-19 vaccine to take. If you
choose a COVID-19 vaccine that requires two doses, you must receive your first dose within five
calendar (5) days upon receipt of this letter and complete the series as prescribed. If you choose
a one-dose vaccine you must receive the vaccine within five calendar (5) days upon receipt of
this letter.

2. In line with references (b) through (d), I am designated as the approval authority for requests
for religious accommodation.

3. Reference (a), the Religious Freedom Restoration Act (RFRA), states that the Government
may substantially burden an individual’s exercise of religion only if 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 interest. Reference (b) incorporates the RFRA
and notes that the Government has a compelling interest in mission accomplishment, to include
military readiness, unit cohesion, good order and discipline, health and safety, on both individual
and unit levels. Additionally, unless it will have an adverse impact on mission accomplishment,
including military readiness, unit cohesion and good order and discipline, the Navy will
accommodate individual expressions of sincerely held beliefs of Sailors. Reference (f)
211a

Subj: REQUEST FOR RELIGIOUS ACCOMMODATION THROUGH WAIVER OF
IMMUNIZATION REQUIREMENTS

emphasizes that only those interests of the highest order can overbalance legitimate claims to the
free exercise of religion.

4. All requests for accommodation of religious practices are assessed on a case-by-case basis.
In line with references (b) and (c), determination of a request for religious accommodation
requires consideration of the following factors:

a. Impact on military readiness, unit cohesion, good order and discipline, health and safety
b. Religious importance of the request

c. Cumulative impact of repeatedly granting similar requests

d. Whether there are alternatives available to meet the requested accommodation and

e. How other such requests have been treated

5. In making this decision, I reviewed reference (g), including the endorsements from your
chain of command, the local chaplain and the advice of Chief, Bureau of Medicine and Surgery
in reference (h).

a. A waiver of immunizations would have a predictable and detrimental effect on your
readiness and the readiness of the Sailors who serve alongside you in both operational and non-
operational (including training) environments. Primary prevention of disease through
immunizations has been a key enabler for maintaining force health and avoiding disease-related
non-battle injury. Granting your request will have a direct and foreseeable negative impact on
the compelling Government interests of military readiness and health of the force.

b. While serving in the U.S. Navy, you will inevitably be expected to live and work in close
proximity with your shipmates. I find that disapproval of your request for a waiver of
immunization requirements is the least restrictive means available to preserve the Department of
Defense’s compelling interest in military readiness, mission accomplishment and the health and
safety of military Service Members.

6. The Navy is a specialized community governed by a discipline separate from that of the rest
of society. While every Sailor is welcome to express a religion of choice or none at all, our
greater mission sometimes requires reasonable restrictions. You have my sincere best wishes for
your continued success in your Navy career.

JOHN B. NOWELL, JR

Copy to:
OPNAV (N131, NO975)
BUMED


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