Court filing
21A477 005 Mar 14 2022 Main Document 20220314105139279 Appendix
Filed February 13, 2022 in Scotus; one of 28 filings from this case.
Record facts
| Court | Supreme Court of the United States |
|---|---|
| Filed | 2022-02-13 |
Supreme Court of the United States · No. 4:21-cv-01236-O · Doc. 118 · 2022-02-13 · Docket on CourtListener
Full text
No. 21A477
In the Supreme Court of the United 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
KELLY J. SHACKLEFORD
JEFFREY C. MATEER
HIRAM S. SASSER, III
DAVID J. HACKER
MICHAEL D. BERRY
First Liberty Institute
2001 W. Plano Pkwy.
Suite 1600
Plano, Texas 75075
(972) 941-4444
HEATHER GEBELIN HACKER
Counsel of Record
ANDREW B. STEPHENS
Hacker Stephens LLP
108 Wild Basin Rd. South
Suite 250
Austin, Texas 78746
(512) 399-3022
heather@hackerstephens.com
Counsel for Respondents
TABLE OF CONTENTS
Declaration of Navy Diver 2 ........................................................................................................ 1a
Declaration of SEAL 16 (reprinted from record on appeal) ................................................... 4a
Declaration of SEAL 18 (reprinted from record on appeal) ................................................. 10a
Declaration of SWCC 4 (reprinted from record on appeal) .................................................. 16a
DoD Force Health Protection Guidance (Supplement 23) (Dec. 20, 2021) ........................ 20a
Updated Guidance for Mask and Screening Testing for All DoD Installations
and Other Facilities (Mar. 1, 2022) ....................................................................................... 48a
Declaration of Commander Robert A. Green, Jr., USN ........................................................ 51a
Declaration of Brian J. Ferguson .............................................................................................. 85a
Declaration of Lieutenant Commander Erik V. De Sousa, USN ....................................... 151a
Declaration of Lieutenant Daniel Franklin, USN ................................................................ 177a
Joint Service Commendation Medal Citation, EOD 1 (redacted and reprinted
from record on appeal) ......................................................................................................... 197a
SEAL 16 Appeal Denial ............................................................................................................ 199a
Sample of Denial Letters.......................................................................................................... 202a
No. 21A477
In the Supreme Court of the United 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
JEFFREY C. MATEER
HIRAM S. SASSER, III
DAVID J. HACKER
MICHAEL D. BERRY
First Liberty Institute
2001 W. Plano Pkwy.
Suite 1600
Plano, Texas 75075
(972) 941-4444
HEATHER GEBELIN HACKER
Counsel of Record
ANDREW B. STEPHENS
Hacker Stephens LLP
108 Wild Basin Rd. South
Suite 250
Austin, Texas 78746
(512) 399-3022
heather@hackerstephens.com
Counsel for Respondents
1a
1
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 13
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.
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2
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.
______________________________________
NAVY DIVER 2
3a
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, 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.
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,
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.
Case No. 4:21-cv-01236-O
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.
We are 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.
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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
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exchange; public museum; air show; militarymedical 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. If a Service member has been vaccinated against COVID-I9 outside the Military
Health System, that Service member must show official proof of his or her COVID-l9
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-I9 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 22,2021are 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-I9 vaccine or 2 weeks after receiving a single dose of a one-dose COVID-l9
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-
BioNTeoh/COMIRNATY, Moderna, Johnson & Johnson/Janssen vaccines); listed for
emergency use on the World Health Organization Emergency Use Listing (e.g.,
AstaZeneca/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-I9 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-I9 guidance memoranda are centrally located at:
https://www.defense.gov/Spotlights/Coronavirus-DOD-Response/Latest-DOD-Guidance/.
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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. ATTACHMENT 1: Vaccination Requirements for DoD Civilian Employees
2. ATTACHMENT 2: Requirements for DoD Contractor Personnel, Official Visitors, and
Others Seeking Access to Facilities
3. ATTACHMENT 3: DD Form 3175 - "DoD Civilian Employee Certification of
Vaccination"
4. ATTACHMENT 4: DD Form 3150 - "Contractor and Visitor Certification of Vaccination"
5. ATTACHMENT 5: DD Form 3176 - "Request for a Medical Exemption or Delay to the
COVID- 1 9 Vaccination Requirement"
6. ATTACHMENT 6: DD Form 3Il7 - "Request for a Religious Exemption to the COVID-I9
Vaccination Requirement"
7. ATTACHMENT 7: COVID-l9 Screening Testing Requirements
8. ATTACHMENT 8: Requirements for Obtaining Self-Collection Kits and Self-Tests
9. ATTACHMENT 9: Privacy Requirements
10. ATTACHMENT 10: References
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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-l9 vaccine clinical trials begun prior to November 22,2027,
are exempted from mandatory vaccination against COVID-19 until the trial is
complete in order to avoid invalidating such clinical trial results.
b. 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-I9
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.
c. DoD civilian employees are eligible to receive the COVID-l9 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.
d. New DoD civilian employees must be fully vaccinated by their entry on duty (start)
date.
l.
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.
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).
11
e. 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.
4
23a
f. 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 experienco 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 frtness" 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 erLN)' and the environmentallhazardlother 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.
b. 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 verifìed 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:
i.
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. A copy of any other official documentation containing the data points required
to be verified by the supervisor.
c. 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.miU)
will complete the DD Form 3175 viamilConnect; otherwise use of a hard copf 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).
2 https://www.esd.whs.miVPortals/S4/Documents/DD/forms/dd/dd3 1 75.pdf
5
24a
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:
l.
ii.
Type of vaccine administered;
Number of doses received;
Date(s) of administration; and
Name of the health care professional(s) or clinic site(s) administering the
vaccine(s).
111.
iv.
e. In addition to verifying that a DoD civilian employee's proof of vaccination includes
the requireddatapoints, supervisors also will complete Section B of DD Form 3175.
Supervisors with access to milConnect (https://milconnect.dmdc.osd.miV) will
complete the DD Form 3775 viamilConnect using the DoD civilian employee's
Employee Identification Number; otherwise use of a hard copy is acceptable.
f. 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.
g. 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
S AFE file transfer (https : //safe. apps. mil/).
3. Enforcement of DoD Civilian Employee COVID-l9 Vaccination Requirement:
a. 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.
b. Progressive enforcement actions include, but are not limited, to
i.
A 5 calendn-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;
iii.
Removal from Federal service for failing to follow a direct order.
6
25a
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-l9 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
Decision Authorities. Management official(s) will be designated to serve as
Decision Authorities to make decisions conceming 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
7
26a
ll
111.
for the facts and circumstances of each case. Each employee's request must
be considered on its own merits.
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.
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 8,202I, 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-I9
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-I9. 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 3 176
and DD Form 3177 is optional for DoD civilian employees, when DoD civilian
employees make a request, they must provide the following information:
Medical Exemption Requests.
o 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;
o An explanation of why the medical condition or circumstance prevents the
employee from being safely vaccinated against COVID-l9;
o If it is a temporary medical condition or circumstancq a statement
concerning when it will no longer be a medical necessity to delay
vaccination against COVID-l9; and
. 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-I9 vaccination requirement.
l.
8
27a
l1
Religious Exemption Requests.
o A description of the religious belief, practice, or observance that is the
basis for the request for a religious exemption from the COVID-I9
vaccination requirement;
o A description of when and how the DoD civilian employee came to hold
the religious belief or observe the religious practice;
o A description of how the DoD civilian employee has demonstrated the
religious belief or observed the religious practice in the past;
o An explanation of how the COVID-19 vaccine conflicts with the religious
belief, practice, or observance;
o 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
. 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.
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.
ii.
As necessary, supervisors will engage with the employee to ensure
completeness of the employee's exemption request.
iii.
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 worþlace from COVID-I9, if the employee remains unvaccinated.
iv.
Supervisors will forward the exemption request package to the Decision
Authority Support Offi ce.
f. Decision Authority Support Office.
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
l.
ii.
9
28a
1V
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.
The Decision Authority f,rrst analyzes the exemption request package. As
necessary, the Decision Authority may request additional information and consult
with subject matter experts.
ii.
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.
iii.
In cases where the exemption is temporary or denied, the Decision Authority's
determination must specifu 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-I9 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 3775, and informs the DoD
civilian employee of next steps.
i. A chart illustrating the exemption request process is below
Position
Role/Responsibilitv
Output
Submit to
Requesting employee
Attest to vaccination
status via DD Form
3175 to indicate
exemption pending.
Completed DD Form
3175.
Supervisor
Requesting employee
Request exemption.
Completed DD Form
3176 (medical) or
DD Form 3177
(religious), as
appropriate, or other
request that contains
the information
required by FHP 23,
Revision 3.
Supervisor
10
29a
Supervisor, in
consultation with HR
officials
Provide relevant
information
concerning
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
concerning
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
Decision Authority.
Exemption request
package that includes
employee's request;
supervisor
information
concerning
employee's
occupation, work
environment, and
other circumstances
ofthe request; and
any supporting
documentation
relevant to the
Decision Authority's
analysis.
Decision Authority
11
30a
Decision Authority
Review submitted
documentation,
request any
reasonably necessary
additional
information, and
prepare written
decision in
consultation with
legal advisors and
with the advice of
subject matter experts
as appropriate.
Written decision that
addresses employee's
individual
circumstances and
has been reviewed by
appropriate legal
advisors.
Supervisor
Supervisor
Receive decision,
discuss with
employee. If
exemption approved,
implement mitigation
measures and, if
necessary, address
any follow-on
requests for
accommodation in
accordance with
Component EEO
procedures. If
disapproved, provide
opportunity for
counseling by
medical professional
or other appropriate
experl initiate
requirement for
vaccination. Work
with the legal
advisor(s) and, as
appropriate, HR
LMER and EEO
offices.
Ifapproved,
employee continues
to comply with
generally-applicable
mitigation measures
(e.g., screening
testing, masking, and
physical distancing)
and any other
mitigation measures
directed by the
Decision Authority or
management
officials. If
disapproved,
vaccination tracking
and/or progressive
discipline.
Employee
j. Exemption Criteria.
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
31a
ll
that application of the burden to the person is in furtherance of a compelling
govelnmental interest and is the least restrictive means of furthering that
compelling govefirmental interest. ln 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. If so, 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 perrnanently, 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 worþlace 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
emplo¡rment opportunity reasonable accommodation process.
k. AdditionalGuidance.
lll.
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 f,rnal determination conceming those
measures. Without making a finding conceming whether a sufficient basis for
a reasonable accommodation concerning those measures exists, the supervisor
ll.
13
32a
may use the normal interactive process to pursue a temporary accommodation
that protects the health and safety of the workplace while a decision
conceming 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.
iv. A DoD civilian employee who receives an exemption from the vaccination
requirementmay, 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 worþlace.
v.
Requests for exemption from candidates for employment will be handled
consistent with the provisions in this attachment.
vi.
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.
t4
33a
ATTACHMENT 2
Requirements for DoD Contractor Personnel, Offïcial 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 implernented by reference 0), as
directed under Executive Order 14042 (reference (k)).
b. DoD contractor personnel will complete the DD Form 3150, "Contractor and Visitor
Certification of Vaccination" (Attachment4),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-l9 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 (AttachmentT). 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-I9 vaccines at their DoD worksites.
2. Official Visitors
a. Official visitors will complete DD Form 3150, "Contractor and Visitor Certification
of Vaccination"3 (Attachment 4); andmaintain 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-authonzed or approved COVID-I9 test administered
no earlier than72 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.
3 https://www.esd.whs.miUPortals/S4/Documents/DD/forms/dd/dd3 150.pdf
15
34a
c. Offieial visitors will follow applicable policies and procedures of both DoD and the
Department or Agency they are visiting, if different from DoD.
3. Others Seekins Access to Facilities
Individuals other than official visitors seeking access to facilities located on DoD installations,
but operated by other Federal dçartments and agencies, will follow the policies and procedures
of that other department or agency.
t6
35a
ATTACHMENT 3
DD Form 3175 - "DoD Civilian Employee Certification of Vaccination"
CUI (when filled in)
DoD CIVILIAN EMPLOYEE CERTIFICATION OF VACCINATION
PRIVACY ACT STATEMENT
Author¡ty: Pußuant to 5 U.S-C. chapters 1 1 and 79, and in discharging the funct¡ons direcled under Execut¡ve O¡der 14043, Regu¡r¡ng Coronavirus Disease
20l9VaccinationforFederal Employees(Sept.9,2021),DoDisauthorizedtocolleclthisinformation.
Additional authorit¡esforthesystêmsofrecords
assoc¡atad with this collection of inñomation also include: E.O. 13991, Prot€ct¡ng the Fsderal Worldorce and Requiring Mask-Wsaring; E.O. 12196. Occupational
Safety and Health Program for Federal Employees; 10 U.S.C. 1 13, 10 U.S.C. 136. 10 U.S.C. 7013, 10 U.S.C. 8013, 10 U.S.C. 9013. 10 U.S.C. 2672: DoD
D¡rective 5525.21; and DoD lnstruction 6200.03. Providing this information is mandatory, and DoD is authorized to impose penalties for failure to prov¡de the
information pursuant to appl¡æble Federal personnel larc and regulat¡ons.
PrincipalPurpose: Thisinformationisbe¡ngcollectedandma¡ntainedto¡mplementCoronavirusDisease20lg(COVID-19)workplacêsafetyplans.and
ensure the safety and protect¡on of the DoD worKorce, workplace, and othêr DoD facilities and environments, consistent with the abovê-rôferencod authorities,
the COVID-19 WorkPlace Safety: Agency Model Safety Principles established by the Safer Federal Workforæ Task Force. and guidance from the Centeß for
Disease Control ênd Prevention and the Occupat¡onal Safety and Hælth Adm¡n¡strat¡on.
Routlne Use(s): While the information rêquest€d on this fom is intended to be used primarily for ¡ntemal purposes, in certain circumstanc€s it may be
necessary to d¡sclose th¡s information extemally, for example to d¡sclose ¡nformation to: a peßon, organizat¡on or govemmental entity as necessry and
relevant to notify th€m of, respond to, or guard aga¡nst a public hælth emergency, or other similar crisis, includ¡ng to comply with laws governing the reporting of
commun¡cable disease or other laws concerning health and sfêty in the work env¡ronment; âdjudicat¡vê bodies (ê.g., the Merit System Protection Board),
arbitratoß, and hear¡ng examiners to the extent necessary to carry out the¡r authorized duties regarding Federal émployment; æntractors, grantees, experts.
consultants, students, and others as necessary to perform thêir duties for the Federal gov€mment: or agencies. courts. and persons as nècessary and relevant
in the course of litigat¡on, and as necessary and in accordance with requirements for law enforcement; or to a peßon authorized to act on your behalf.
A comPlete list of routine uses may be found in the applicable System of Records Notiæ (SORN) asoc¡ated w¡th the collection of his infiomation as follows:
FormostFedèralcivilianemployees: OPM/GOW-I0,EmployeeMedicalFileSystemRecords,TSFed.Reg.350gg(Jun.21,z}1}),amended80Fed.Reg.
74815(Nov.30,2015). ForFederalciv¡¡¡anemployeesnotcoveredbyOPÍ\,UGOW-10: DPR39DoD,DoDPersonnelAccountabilityandAssessmentSystemôf
Rêcords, 85 Fed. Rsg. 17047 (Mar.26,2020) (also ava¡lable at https://dpcld.defense.gov/Portals/491DæumentlPrivacy/SORNs/OSDJS/DPR-39-DoD.pdf).
Consequencès of Fallure to Provlde lnlormadon: Providing this informalion is mandatory. Unless granted an exêmption, all covered Federal civilian
employees are required to be vacc¡nated against COVID-19. Employees are requ¡red to prov¡de documentation oncern¡ng their vaccinat¡on status to their
employing DoD Component. Failure to provide this infomation may subject you to disciplinary action, including and up to removal from Federal service.
INSTRUCTIONS: Sect¡on A of th¡s form should be completed by DoD civilian employæs only. Sêction B of th¡s frcm should be complêted by thê DoD civilian
emPloyêe's supêruisor (or authorized human re$urces ofücial). This fom should be completed by OoD c¡vilian employees only. Seryice members and
employees of DoD contrac{ors should nol complete this form.
SECTION A. To be completed Þy DoO civil¡an employees.
1. CIVILIAN EMPLOYEE NAME (Last, Firet. Ml):
2. CIVILIAN EMPLOYEE DoD ID NUMBER:
3, PLEASE CHECK ALL THAT COINCIDES WITH YOUR COVID.1g VACCINATION STATUS:
[-l
S.a. I am tully vaccinated.
!
lndividuals ar6 considered'fully vaccinated" two weeks after completing the seænd dose of a twodose COVID-1g vacc¡ne or two weeks after
ræeivingasingledoseofaonedosevaccine. AccêptedCOV|D-19vacc¡nesarethosewhichhavereceivedalicenseorêmêrgencyuse
authorization from the U.S. Food and Drug Adm¡n¡stration and those COVID-I9 vaccines on the World Health Organ¡zation Emergency Use Listing.
"Fully vaæinated" also ¡ncludes circumstances in which the ¡ndiv¡dual was a partic¡pant ¡n a U.S. s¡te clinical trial and has received all recommended
doses.
fl
S-0. I have ræeived one or mor€ doses. but I am notyet ænsidered fully vacc¡nated (in acærdanæ with the definitim of fully vaccinated above).
tl
| | S.". t have submitted proof of vaæination to my superu¡sor.
Proof of vaccination includes a copy of ihe record of immunization from a health care provider or pharmacy. å copy of the COVID-19 Vaccination
Re@rd Card, a copy of mediæl ræords documenting the vacc¡nat¡on, a copy of immunizat¡on records ftom a public hêalth or state immuniätion
¡nformation system, or a copy of any other official documentalion. 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.
f--] S.¿. I have not rec6iv6d anv vaccinat¡on doses.
LI
fl
S... I have submitted a requast for an exemption from vaccination and a decision is slill pending.
LI
| | S.t. t have an approved exempt¡on from vacc¡nat¡on.
LJ
CUI (when filled in)
Controlled by: OUSD(P&R)
Page
Controlled by ASD(HA)
CUI Category: HLTH PRVCY, OPSEC
LDC: DL(DoO Only)
POC. osd.penlagon.ousd-o-r.mbx.foms{A'nìail.
mil
DD FORM
17
36a
CUI (when filled in)
CUI (when filled in)
4. EMPLOYEE VACCINE INFORMATIQN (Employæs cheÇking block 3.a. should skip block 4 and go to block 5):
4.a. VACCINE MANUFACTURER(S) OR VACCINE PRODUcT NAME(S):
Ll
Pfizer-BioNTech/Comimaty
t I Moderna
n
Astrazeneca/Oxford
n
Johnson ând Johnson iJ&J)/Janssen
I I Novavax
Other U.S- Food and Drug Adm¡nistration l¡cenæd or author¡zed.
| ] World Health Organ¡zat¡on Emergencv Uæ l¡sled vaccine or U.S. site
clinical trial vaccine (provitle name):
5, CERTIFICATION/KNOWLEDGE OF POSSIBLE ACTIONS FOR FALSE STATEMENTS
4.b, OATE OF FIRST DOSE:
4.c. DATE OF SECOND DOSE (if two4ose vaccine):
4.d. DATE FULLY VACCINATED:
I certify that the ¡nformation I have provided on his form and the proof of vacc¡nation documentâtion I havè submitled is true and corect.
I understand that a knorving and willful false statement on this form cÊn be punished byfne or imprisonmentor both (18 U.S.C. 1001). I understand
that making a false statement on this fom could result ¡n additional admìnistrat¡ve act¡on includ¡ng an adverse persnnêl action up to and including
rêmoval fiom my posit¡on.
6. CIVILIAN EMPLOYEE SIGNATURE:
G
7. DATE:
SECTION B. To be completëd by the supervlsor of the DoD clvlllan employee completlng sectlon A (or an authorlzed human resources olflclal)
8. SUPERVISOR PROOF OF VACCINATION REVIEW
!
8.a. Prcøotvacc¡nation not reæived.
[
8.b. Proof of vaccinat¡on received and under rêvièw.
[
8.c. Proof of vaccination rêæived and reviewed.
9, STATUS OF VACCINATION. EXEMPTION REVIEW
n
9.a. Exempt¡on rêquest reæ¡ved and pending disposition.
n
9.b. Exêmption request ræeived and approved.
n
9.c. Ex€mption request râcâivêd and dêni€d.
n
9.d. Exempt¡on rêquest not ræe¡ved.
10. SUPERVISOR /AUTHORIZED HR OFFICIAL NAME (Last, First, M!):
11. SUPERVISOR / AUTHORIZED HR OFFICNL
DoD ID NUMEER:
12. SUPERVISOR / AUTHORIZED HR OFFICIAL SIGNATURE:
D
13. DATE:
PREVIOUS EDITION IS OBSOLETE.
18
Page 2
37a
CONTRACTOR PERSONNEL AND VISITOR CERTIFICATION OF VACCINATION
O^48 No.07044613
ExttEîoa: ,220228
AGENCY DISCLOSURE NO]ICE
The publ¡c repqting burden for this cdlect¡m of information is estimated to average 2 minutes per response, ¡ncluding the time fü reviewing ¡nstructids,
searching ex¡st¡ng data sdrces, gather¡ng and maintaining the data needed, and cmpleting and reviewing the collectim of ¡nfomation. Send cmments
reg8rding th¡s burden eslimate or 8ny other aspect ofth¡s collectio of informat¡orì, ¡ncluding suggestifis for reducing the burden, to the Department of Defense,
Washington Headquarters Seruices, at whs.mc-alex.esd.mbx.d+dod-¡nformationcdlections@ma¡l.mil, Respondents should be aware that ndwithstand¡ng any
other prdisiorì of law, no peFon shall be subject to any penalty for fai¡ing to comply with a collect¡m of informatim ¡f it dæs nd d¡splay a currenlly valid OMB
cdtrol number.
PRIVACY ACT STATEITI ENT
Authorfty: OoD is author¡zed to cdlect the ¡nformat¡on orì this form pursuant to Executive Order (E.O;) 14042, Ensur¡ng Adequate COVID Safety Protocds for
Federal Contractors; E.O. 13991, Protect¡ng the Federal Workforce and Requiring Mask-Wearing; and E.O. 12196, Occupatiorìal Safetyand Health program for
Federal Employees; aswell as 10 U.S.C. f'13,10 U.S.C.136, 10 U.S.C.7013,10 U.S.C.8013,10 U.S.C.9013.10 U.S.C.2672.5 U.S.C. chapterTg, and DoD
lnstruct¡on 6200.03.
P¡inc¡pal Purposs: Th¡s infomat¡tr ¡s being cdlected to ¡mplement Cqdavirus Disease 2019 (COMF19) workplace safety plans, ¡nclud¡ng DoD's COVIDlg
testing programs. and to ensure the safety and protect¡on of the DoD wdkfdce, wdkplace, and other DoD facilities and environments, cms¡stent with the
abwe-referenced authorit¡es, the COVID-19 Workplace Safety: Agency Model Safety Princ¡ples established by the Safer Federal Wqkforce Task Force, and
gu¡dance f¡orn the Centers for Disease Cmtrd and Prevent¡on and the OccupatÌonal Safety and Health Adm¡nistrat¡on.
Routlne Use(s)Ì While the informat¡on requested on this form is intended to be used primarily for ¡nternal purposes, in certain c¡rcumstances it may be
necessary to disclce th¡s ¡nformatiorì externally, fq example to d¡sclose information to: a person, otganization, or gcì/emmental entity as necessary and
relevant to not¡ry them of, respmd to, or guard aga¡nst a public health emergency or other similar crisis, includ¡ng to cmply w¡th laws goveming the report¡ng of
cmmunicable disease or dher laws conceming health and safety ¡n the work envirmment; adiudicat¡ve or administrative bod¡es or ofñcials when the records
are relevant and necessary to an adjudicative or admin¡stmtive proceeding; cmtractds, grantees, experts, consultants, students, and others as necessary to
perform their duties fd the Federal go/ernment; agencies, courts, and persons as necessary and relevant ¡n the course of ¡itigation, and as necessary and in
accordance w¡th requirements for law enfdcement: or to a person authorized to act m ydJr behafi. A cornplete list of riltine uses may be found in the
appl¡cable System of Records Notice (SORN) assæiated with the collect¡dì of this ¡nfomation torn corìtractor persmnel and DoD visitors: DPR 39 DoD. DoD
Persmnel Accountability and Assessment System of Records, 85 Fed. Reg. 17047 (Mar. 26, 2020) (also available at https://dpcld.defense.gov/Porta¡s/49./
DæumentslPr¡vacy/SO
R NsiOSDJS/DPR-39 DoD.pdf).
Cons€quoncss of Fa¡ luro to Provide lnformat¡on: Provjding this ¡nftrmat¡d is vduntary. However, ¡f yd fa¡l to provjde this informatim, you w¡ll be treated as
not tully vacc¡nated for purpo6es of ¡mplementing safety measures, including subject to COVIDI 9 screen¡ng test¡ng and/or denied access to DoD fac¡lities.
Fâilure to provide such ¡nformation may also h¡nder DoD's ability to implement COV|Fl9 wdkplace safety plans, thereby increasing the health or safety risk to
DoDafüliated personnel and DoD fac¡l¡ties.
INSTRUCTIONS: This form shflld be cornpleted by DoD cotmctor persorìnel and officialvisittrs in accordance with current DoD Fdce Health Protection
GuidÊnce. DoD c¡vilian employees should not cornplete this fm.
1. NAMEILâs{, FlßlMt)l
2. DoD lD NUMBER
3. PLEASE CHECK THE BOX BELOW THAT COINCIDES wlTH YOUR COVID-I9 VACCINANON STATUS :
f-l
I am tully vacc¡nated.
tJ
lndividuals are cons¡dered Tully vacc¡nated" two weeks aner completing the secoûd dose of a twùdose COVID-19 vaccine or two weeks ater
receiving a single dose of a one-dæe vacc¡ne. Accepted COVID1g vaccines are th6e wh¡ch have received a l¡cense or emergency use
authqizat¡on frm the U.S. Food and Drug Admin¡strat¡m and those COVIÞ19 vacc¡nes on the Wodd Health Organ¡zat¡on Emergency Use List¡ng.
'Fully vaccinated" also ¡ncludes circumstances ¡n wh¡ch the ¡ndividual was a part¡cipant ¡n a U.S. s¡te clinical trial and has received all recmmended
dæes.
f-l
lamnotyetfullyvacc¡naled. lreceivedmlyonedoseofanacceptedtwo-doseCOV|D-19vacc¡ne,dlreceivedmyinal
doseofanacceptedCOV|D-19
U
vaccine less than two weeks ago.
f_l
I have not been vaccinated.
LI
J._l I declinetoresoond-
tl
lnd¡viduals who choose not to cornplete the form will be assumed to be nd fully våcc¡nated fq purposes of applicatiorì of the safety protæols. lf you are not
vacc¡nated due to med¡cal or rel¡g¡ous reasons, please check either 'l have not been vaccinated' or "¡ decline to resptrd.' Note that ¡fyou have already
received one dce of a wcc¡ne, but are not yet fully vacc¡nated, or if ydJ received yor final dose less than two weeks ago, then you will be treated as not fully
vacc¡nated until you are at least two weeks past ydr fnsl dose and resubmit ydr vaccinatiff infsmat¡on.
f-] lcert¡rythattheinfomat¡nprovided¡nthisfmisaccurateandtruetothebestofmyknowledge.
tl
I understand that a knil¡ng and w¡lltul false statement s th¡s form can be punished by fine d ¡mprisonment or both (18 U.S-C. 1001). Check¡ng "l decl¡ne to
respond" does not constitute a false statement.
4. DATE (YYVYÃüMDD)
5. SIGNATU RE lFør, l'raræ)
ATTACHMENT 4
DD Form 3150 - "Contractor Personnel and Visitor Certification of Vaccination"
GUI (when filled in)
CUI (when filled in)
Conbdled by: OUSD(P&R)
Contrdl6d by: ASD(HA)
CUI Catêgory: HLTH: PRVCY; OPSEC
LDC: DL(DoD Only)
POC: osd.p6taoon.oùséÞr.ñbx.fqms@meil.mil
3150, OCT 2t'21
I9
I of I
38a
REQUEST FORA MEDICAL EXEMPTION OR DELAY
TO THE COVID-I9 VACCINATION REQUIREMENT
OMB No. 0704461 I
Exp.20220430
s@ræs, gathering and ma¡ntaining th€ data needed. and complet¡ng ad reviewing he collætion of inbmd¡on. Send comme¡ts .egard¡ng ùis h¡rdq 6timate or aÍy other asped of
this @llection of¡nfo¡mat¡on, ¡ncluding sggegìons br reducing the bu.den, b the Departnent ofDsfense, Whsh¡ngton Headquartqs Seryices, atwhs.mc-alex.esd.mbx.dddo4-
inbrmationcoll€ctiüs@mail.mil. Rêspond€nts should bo ãw†that notwithstandng any oths prov¡s¡on of law, no p€Fon shallbs subjêctto any psalty br fa¡ling to @mply with a
collection of¡nfdmatie ¡fit dæs not d¡sdây a currenüy valid OMB control numbêr.
PRIVACY ACT STATE¡II ENT
Authority: DoD¡sauthori¿êdtocolloctheìnfdmatidonth¡sfomFursuantto29U.S.C.794,42U.S.C.Chapter21,Subû.Vl;ExeÉtiveOrd€r(E.O)1404),RequiringCoronav¡rus
Requ¡ring FedeÞl Ag$cies to Establ¡sh Præedures to Facilitate he Provis¡ñ of Reasoable Accommodd¡on; 29 CFR 1614.2æ, Rehabil¡tation Act: DoD D¡rective 1020.'1.
Nond$r¡m¡nation on thê Bas¡s of Hand€p ¡n Programs ild Activiti6s Asistod or Conductêd by ths DêpafimMt of Dêf€nsê: as wêll as 10 U.S.C. .l13, 10 U.S.C. 136. '10 U.S.C. 7013,
10 U.S.C. 8013, 10 U.S.C.9013, 10 U.S.C. 267¿ 5 U.S.C. chapt{ 79, ¡nd DoD lnshuction 6200.ß.
Prlnclpal purpose: lhê ¡nfomat¡on on h¡s brm is be¡ng collæt€d e that DoD may d€lomin6 whsthêr to gEnt your rêqu6t br a medical êxêmption from thê COV|Dlg Eccinalion
roquirmdt fgr fêdeñl êmployæs, pursuant to F¡eculiv€ Ordd 14043 a¡d in furth6Enc6 of COVID-19 wdkplãæ sf€ty plans.
Rout¡ne Usqs): l ,/h¡ls tho inbrmatìon requêstsd on th¡s brm is ¡ntêndêd to be us€d pr¡marily br int€rnal purposês, in ce.tain c¡rdmstffcgs it may bo nocgssary to disclosê th¡s
cmd¡anco with tho Rohab¡litatjon Act of 1973; d¡$losur€ of medicalconditif or h¡stqy ¡nformatif to fFt aid and safty perennslin tho ovsnt an employ€e's m€dical @ndit¡on might
carry out its resPons¡b¡lities under the progrt; A c6d€tê list of roulìne u*s may be found in ûre appliæble System of Records Notiæ (SORN) associated with thê collection of this
inturmation: DoD 0007, DÞÞns6 Rêaenabls AccommÒdat¡ons and Asistivo lschnology Rê6rds. 86 F6d. Rog. 38692 (July. 22, 2010) (availablê at h[ltittrffi,ggvl¡fo,got/
codent Þkq/FR-2æl-07.22ptr2021-t 5û0l.pdn.
ConsequencË ol Falluæ to Provlde lnfomatlon: Prd¡dng th¡s ¡nfomation is volunt ry ùd usê of th¡s fÞm is optidal. Failur6 ùo provido tho information Þquêstêd on this fom
may¡mpactDoDbab¡litytoévdluat6oractuponarsqu€$fdamodical êxompt¡oniomth6COV|ll9vacc¡nalionrequirêmênt. Afly¡ntgnlionalm¡srepros€rtationtoth6Fodoral
Govdnmorit may rssult ¡n lsgal consequênæs, includng tem¡nation or remwal from Fod€ral Ssryi@.
lnstruct¡ons: Paft 1 is to be completed by DoD civil¡an emplcyees. Part 2 ¡s to be cornpleted by a licensed health care provider. P¡dide namt¡ve responses
where âpplicable (Blocks & 10, l5-17). lf add¡tiona¡ space ¡s needed, præeed on the appropriate cont¡nuation blæk (Blæk 1 1 or 20) by annotating the Sectis
and L¡ne number and cont¡nue your narrative response. Signing th¡s form constitutes a declaration that the informat¡m you pror'¡de ¡s. to the best of your
knowledge and ability. true and conect. Any intentional misrepresentat¡on to the Federal co/emment may result ¡n legal cffsequences, ¡ncluding removal frffi
Federal SeMce.
PART I. TO BE COMPLETED BY THE DOD CIVILIAN EMPLOYEE
l. Ernployee Nam6 (Last, First, M¡ddle ln¡t¡a|
2- DoD lD Number
3. Ofilce Symbol
4. Dato of Requssl (YYYYMMDD)
5. Poslt¡orfTltle
6. Srporvlsor Nme
7. Srpervlsor Phone Numbor
8. Please provida a description of ths msdical cond¡t¡on or circumstanca that is ths bas¡s for the request for a m€d¡cal exemption from the COVI D.l 9
vacclnatlon requlrsmsnt.
9. Please provlde an explanatlon of why the medlcal condltlon or clrcumstance prevents you from belng vacclnated.
10. Ploase provldo any add¡tlonal lnformatlon, that addrossss your partlcular medlcal condltlon or clrcumstancs, wñlch may bs holpful ln rssolvlng
your rsquest for a m€d¡cal exemption or dslay from ths COVID-19 vacc¡nation rsquirsmsnt. lfyou havo msd¡cal documontat¡on {¡n addition to
Pdt 2 of thls Form) that addresses your partlcular medlcal condlllon or clrcumstmce you may submlt the documsntatlon to your supervlsor
along wlth thls fom.
ATTACHMENT 5
DD Form 3176 - "Request for a Medical Exemption or Delay to the COVID-l9 Vaccination
Requirement"
CUI (when filled in)
DD
CUI (when filled in)
Conlrollôd by: OUSD(P&R)
Page
CUI Calegory: HLTH, PRVCY. OPSEC
LDC: DL(DoD Only)
POCi dodhm.mc-al6x.dhr+hq.mbx.foms@m6ll.mll
PREVIOUS EDITION IS OBSOLETE.
20
39a
t1
gonftnuaUon
I declare to the best of my knowledge and ab¡lity that the forego¡ng ¡s true and corect.
12. Date (YYYYMMDD)
13. S¡gnaturs
PART 2. COMPLETED BY EMPLOYEE'S HEALTH CARE PROVIDER
14. Employee Name
MEDICAL CERTIFICATION FOR COVID.I9 VACCINE EXEMPTION OR DELAY
The Depârtment of Defense requ¡res ¡ts employees tobe fullyvaccinåted aga¡nst COVIÞ19, pursuant to Frecutive Order otthe Pres¡dent ofthe Un¡ted Slates.
As ¡ndicåted in Part 1 , the ¡nd¡vidual named abcÀ/e is seek¡ng a med¡cal exemption to the requ¡rement fd COVID-1 I vaccinat¡orì or a delay because of a
temporary cond¡tion or med¡cal c¡rcumstance. Please complete th¡s fm to ass¡st the Department ¡n ¡ts review præess.
Please provide at least the fdlowing infrmat¡m, where applicab¡e, and use the cont¡nuation block Ês needed:
Dear Health Care Provider:
1 5. Pleasê identify ily contraind¡cat¡on(s) ot procaution(s) for COVID-1 I yacc¡nat¡on that are appl¡cabls to th€ ¡ndiv¡dual, and for sach
conlra¡nd¡cation or prscaut¡on, ¡ndicat€:
(a) whether it is recognized by the U.S. Centers fd Disease Control and Preventim pursuant to its gu¡dance: and
(b) whether ¡t ¡s listed in the package insert q Emergency Use Authorizat¡on fact sheet for each ofthe COVlDl9 vaccines author¡zed or approved for use ¡n
the United Sìtates.
16. Please provlde a statement detatllng howthe indlvldual's condltion and medlcal clrcumstanc€s are such that COVID-'19 vacclnatlon ls not
consldsrsd safe. Please explain ths speclflc nature of tho msdlcal condltlon or circumstanco that contmlndlcat€s lmmunlzatlon lr¡lth a COVID-19
mccins or might ¡ncreasg tho risk for a ssf¡ous advÊrss rsaction.
17. Plsas€ proy¡ds my othsr msd¡cal ¡nfomation thaf muld lim¡t the employo€ from råce¡v¡ng any COVID-19 vaccine.
!
Temporary
. l Lmg-TernvPermanent
18. The condit¡on descr¡bed above ls:
I 9. ¡f the employee ls seeklng a delay due to a temporary mêdlcal
condltlon or chcumstmce, please lndlcate when the emp¡oyee r¡,ould
be able to safely receive a COVID-í9 vacclnatlon - provlde detalls lf
llmltsd to speclflc COVID-í9 yacclne(s) or typs(sl of COVID-19 yacclne.
20. Contlnuatlon
21. Hea¡th Cils ProYid€r Name/ïtle
22. Datè (YYYYMMDD)
23. Medical Providsr Signature
3176,OC.f 20.21
CUI (when filled in)
GUI (when filled in)
PREVIOUS EDI-IION IS OBSOLETE.
2l
Pagø 2oÍ?
40a
ATTACHMENT 6
DD Form 3177 - "Request for a Religious Exemption to the COVID-l9 Vaccination
Requirement"
CUI (when filled in)
CUI (when filled in)
Controll€d by:
cul
LDC:
REQUEST FOR A RELIGIOUS EXEMPTION TO THE COVID.I9 VACCINATION REQUIREMENT
PRIVACY ACT STATETIENT
Authoflty: DoDisauhoi¿edtocollectüeinfqmatjononh¡sformprrsuanttoExecutiveO¡der(E.O.)l4043,RequningCoronavirusD¡æase2O19VaccìnationforFede€l
Employe6; 42 U.S.C. Chaptgr 21. Subchapte¡ Vl: 42 U.S.C. Chapter 218: as well as f 0 U.S.C. 1'13, 10 U.S.C. 136. 1O U.S.C. 7013, 10 U.S.C. 8013. 1O U.S.C. 90 t 3, 1O U.S.C. 2672.
5 U.S.C. ûaptêr 79, and DoD lnstructid 6200.03.
Principal Purpose: The inbmation on his furm ¡s being collæted s that DoD may de{emine whether to gE¡t your rcqust fur a religious exflption from he COVIÈ'l9 va6¡nalion
requirmqtforfêdêral êmployæs,pursuanttoE\6cutiveOrdsl4043andinfurhêrancêôfCOV|Dl9wqkplaæef€typlans.
CüsistêntwithheRêligiousFroêdomRêstorationArt
w¡ll submit to DoD suppotting informatiø about thê¡r rèl¡gious belieÉ or pEclicês ¡n ordêr fo. DoD to waluaté the oxffiËion rêquest.
environment; aqudi€tive or adminislEtive bod¡es ú officials when the records are relevilt and neæssry to an adjud¡Étivê or adminidrative procæd¡ng; æntEctors, grantees,
êxpêrts, consultanbs, studênts, and otheß as nêcæsary to perbrm thêir dutiss br he F€dêdl govêrnm€nt; agdc¡ss, æurts, and peßons as næ6ssry and rêlêvant ¡n th€ couße of
litigatid, and as næesery and in ac@rdance with r€qu¡rêmênts br law sforcêmênt; d to a persoh authorÞsd to ad on your bêhalf A cmplête l¡st of routin6 uss may bo found ¡n
tho appl¡cabls Systêm ot Records Notìcgs (SORN) asociatêd w¡th tho collæt¡on of h¡s information: IlPRlg DoÞ. Do{t PeEonnd Accountabilfty ad Asessment SEtm of
Recüds. 85 Fed. Reg. 17047 (Mar. 26, 20æ) (also ava¡lable at htÞsl/dpcld.d€fensE.gov,/Portalv4g/Docum€ntvPrivacy/SoRNVOSDJS/DPR-3SDoO.pdD.
Consequenc$ of FailuE to Provide lnfomat¡on: Prw¡dng h¡s infomation is voluntary üd us6 of Ér¡s fom ¡s optidal. Fa¡lure to provido ths ¡nfomat¡on roqJ6sted on th¡s fo.m
Gwsnment may result ¡n ¡egal consequences, ¡nclúdng removal from FedêÞl Seryice.
lnstructlons: TobecompletedbyDoDc¡vil¡anemployees. Prwidenanativerespmseswhereapplicable(BlocksS-11,12.b,12.c,'13). lfadd¡tional spaceis
needed, præeed on the cont¡nuat¡m blæk (Block 14) by annotating the Sect¡on and L¡ne number and continue your namtive response. Sign¡ng th¡s form
constìtutes a declaratim that the ¡nfomation you pro/ide ¡s, to the best of your knryledge and ability, true and conect. Any intent¡onal m¡srepresentation to the
Federal Gwemment may result in legal consequences, ¡ncluding remdal from Federal Sery¡ce.
l. Employee Nme (¿as¿ Fìrst, M¡ddle ln¡t¡a|
2. DoD lD Numbor
3. Oñlcê Symbol
4. Dato of Requssl (YYYYMMDD)
5. Posltlon/t¡tls
6. S.¡pervlsor Nams
7. Srporvlsor Phons Numb€r
practlco, or obserwnco that ls tho basls for your rgquêst for a rellglous exsmption from tho COVID-i9
wcclnatlon requlrsment.
L Please descrlbo tho rollgious bellêf,
9. Please descrlbe when and howyou came to hold the rêllglous bellef or observe the rellglous pracllce.
'I 0. Please descrlbe how you have demonstrated the rellglous bellêf or observed the rellglous
the past.
I I . Pl€as€ expla¡n how ths COVID-1 9 wccines conflict with your rsligious belief, practice, or obssrvancs.
PREVIOUS EDITION IS OBSOLETE.
22
POC:
HLTH.
OPSEC
41a
GUI (when filled in)
CUI (wfien filled in)
l2.a Havs you prevlously ralsed an oblsctlon to a vacclnatlon, medlcal trsatmerìt, or mEdlclne based on a rs¡lglous bsllaf or practlco.
fves flto
12.b lf Yes, ploaso provlde a dascrlptlon of the clrcumstancês, tlmlng, and resolutlon of the matt€r.
l2.c lf No, please provlde an sxplanatlon as to lrtry your oblectlon ls llmltêd to tho partlcular COVTD-i9 vacclnss.
13. Plsass pfovlds any addltlonal lnformatlon that may be holpful ln rssolvlng your ¡oqusst for a rsllglous sxomptlon from th€ COVID-,lg vacclnatlon
roqu¡remont. You may subm¡t add¡tlonal documontdion in suppoñ of thls roquost to your suporvisor along ¡ìrith th¡s form.
14. Contlnuallon
I declare to the best of my knowledge and abil¡tythat the foregoing ¡s true and conect.
15.Dús (YYYYMMDD)
16. Slgnature
PREVIOUS EDITION IS OBSOLETE.
23
42a
ATTACHMENT 7
COVID-l9 Screening Testing Requirements
1. To establish COVID-I9 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 selÊtesting may be performed at home or in other locations
(Note: these COVID-I9 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-l9 self-tests and establish guidance for where and
how these tests will be distributed and conducted and how results are to be reported.
11.
DoD civilian employees are responsible for providing documentation of
negative COVID-I9 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 govemment equipment. The supervisor is responsible for
maintainingany COVID-l9 test results provided by DoD civilian employees
in accordance with the privacy protection measures in Attachment 9.
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-I9 screening testing procedures are established, the personnel identified in this
memorandum as subject to screening testing are required to have a COVID-I9 screening test
using a test authonzedby Attachment 8, and receive a negative COVID-l9 screening test
result for entry into a DoD facility. If the COVID-I9 screening test is administered offsite,
the negative result must be from a test performed within the prior 72 hours. If a COVID-I9
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 (l)
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-I9 screening tests will be required to remain away from the worþlace in accordance
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with references (l) 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,
confìrmatory 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 (l) 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.
4. For DoD civilian employees, COVID-I9 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.
5. 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.
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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 Authonzation, and will be made available
through the Defense Logistics Agency. DoD Components are responsible for funding required
COVID- I 9 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.9., 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-I9 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.
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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. g 552a, and
Department of Defense Instruction (DoDI) 5400.1l, "DoD Privacy and Civil Liberties
Programs," January 29,2019 (reference (n)), the Rehabilitation Act of 1973, as amended
("Rehabilitation Act"), 29 U.S.C. g 791 et seq., and 5 CFR part293, 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, 762, 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 3I75, 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.
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ATTACHMENT 10
References
(a) Under Secretary of Defense for Personnel and Readiness Memorandum, "Force Health
Protection Guidance (Supplement23) Revision 2 -Department of Defense Guidance for
Coronavirus Disease 2019 Yaccination Attestation, Screening Testing, and Vaccination
Verification, " Octobe r 29, 2021 (hereby rescinded)
(b) Safer Federal Workforce Task Force, "COVID-I9 Workplace Safety: Agency Model Safety
Principles," September 13, 2021
(c) Executive Order 14043, "Requiring Coronavirus Disease 2019 Yaccination for Federal
Employees," Septemb er 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 Yaccination of
Department of Defense Service Members," August 24,2021
(f) United States Office of Personnel Management Memorandum, "Guidance on Applying
Coronavirus Disease 2019 Yaccination Requirements to New Hires - Executive Order
74043," October 1,2021
(g) United States Office of Personnel Management Memorandum, "Guidance on Enforcing
Coronavirus Disease 2079 Yaccination Requirement for Federal Employees - Executive
Order 14043," October 1,202I
(h) Department of Defense Directive 5100.03, "support of the Headquarters of Combatant and
Subordinate Unified Command" February 9,2011, lncorporating Change l,
September 7,2017
(i) Safer Federal Workforce Task Force, "COVID-I9 Worþlace Safety: Guidance for Federal
Contractors and Subcontractors," S eptember 24, 2021
f) Principal Director for Defense Pricing and Contracting Memorandum, "Class Deviation
2021-O0009-Ensuring Adequate COVID-I9 Safety Protocols for Federal Contractors,
October l,2O2l
(k) Executive Order 14042, "Ensuring Adequate COVID Safety Protocols for Federal
Contractors," Septemb er 9, 2021
(l) Acting Under Secretary of Defense for Personnel and Readiness Memorandum, "Force
Health Protection Guidance (Supplement l8) - Department of Defense Guidance for
Protecting All Personnel in Department of Defense Worþlaces During the Coronavirus
Disease 2019 Pandemic," March 77,2021
(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 Diseas e 2019 Laboratory Testing Services," July 2, 2021
(n) Department of Defense Instruction 5400.11, "DoD Privacy and Civil Liberties Programs,"
January 29,2019
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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,
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.
Case No. 4:21-cv-01236-O
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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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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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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EXHIBIT A
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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 “[r]eply 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 A1 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 façade 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 façade
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
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39. 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.
40. 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.
41. Rename Folder and files with appropriate batch number
a. DD_MON_YY-1 (1st Batch)
b. DD_MON_YY-2 (2nd Batch)
42. 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
43. Link the spreadsheet in the folder to the locations by pressing CTRL+K on the word “here”
44. Email the N13 Front office that the folder is ready.
16
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EXHIBIT B
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EXHIBIT C
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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.
R. A. GREEN JR
CDR USN
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1
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, 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.
Case No. 4:21-cv-01236-O
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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2
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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3
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.
I am 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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4
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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EXHIBIT A
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90a
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 in a
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 FOIAonline. 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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2
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
FOIAonline 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:(https://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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3
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
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EXHIBIT B
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EXHIBIT C
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105a
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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Subj: DISEASES TARGETED WITH MANDATORY VACCINATIONS FOR UNITED
STATES NAVY ACTIVE DUTY AND RESERVE PERSONNEL
2
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
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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.
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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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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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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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 83 of 160 PageID 4519
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 84 of 160 PageID 4520
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 85 of 160 PageID 4521
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 86 of 160 PageID 4522
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 86 of 160 PageID 4522
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 87 of 160 PageID 4523
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Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 90 of 160 PageID 4526
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135a
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EXHIBIT D
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146a
DEPARTMENT OF THE NAVY
OFFICE OF THE CHIEF OF NAVAL OPERATIONS
2000 NAVY PENTAGON
WASHINGTON, DC 20350-2000
5720
Ser DNS-36GC/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, N1 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 FOIAonline. 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
FOIAonline 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.
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147a
(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
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148a
EXHIBIT E
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149a
No.
Name
Rate
Rank DESIG
Tasker #
Religion
Specifics
Duty Type
Requesting
Command
Homeport
AC
RC
Compelling
Government Interest
Least Restrictive Means Analysis
Synopsis: Full Range of the facts
Synopsis: Full
Range of the facts
Synopsis: Full Range
of the facts
Synopsis: Full Range
of the facts
Synopsis: Full Range
of the facts
N13 Recommendation
5
Vriens, Brandon EOD1
E6
N/A
N131-3248 Christian Immunizations CONUS SEA
EODMU 11
AC Health/Safety of the Force
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.
EOD1 Vriens' request is based on his religious
beliefs against abortion and the use of fetal stem cells
in the development of vaccines. Member is LIMDU,
pending a medical board. Member is currently
assigned to EOD Mobile Unit 11 for sea duty.
CO's endorsements
make no
recommendation.
ISIC endorsements
recommends
approval.
Chaplain states their
beliefs are sincere.
BUMED recommends
disapproval based on
significant medical
risks associated with
granting such a waiver.
Legal states it is not
legally objectionable to
disapprove the request.
Recommend disapproval
of the request due to the
negative impact to
military readiness and
health of the force.
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150a
1
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, 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.
Case No. 4:21-cv-01236-O
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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151a
2
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 ¶ 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.
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153a
EXHIBIT A
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154a
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K.VINCENT.1
299139375
Digitally signed by
DESOUSA.ERIK.VIN
CENT.1299139375
Date: 2022.02.22
21:29:21 -06'00'
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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 M44/21UM40232
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
(QFO
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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 ****************, MC, USN, Preventive Medicine, who can be
reached at ****************
****************
Deputy Chief
Business Operations
2
(QFO
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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 II, Angelus, Third Sunday of Advent, 2003
As the Bishop of the Roman Catholic Diocese of Tyler, I 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, I 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, I 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. I 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.
&ODM
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As bishop, I 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, I 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
&ODM
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&ODM
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EXHIBIT B
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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 ltr of 22 Feb 22 w/ends
(b) BUPERSINST 1730.11A
(c) DCNO/N1 RA Response ltr of 17 Nov 21
(d) CNO Appeal RA Response ltr 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.
JOHN B. NOWELL, JR
Copy to:
OPNAV (N131, N0975)
BUMED
NOWELL.JOHN.BL
ACKWELDER.JR.1
057611835
Digitally signed by
NOWELL.JOHN.BLACKWELDER
.JR.1057611835
Date: 2022.02.24 20:42:10 -05'00'
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EXHIBIT C
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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 N1 (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 N1 (USA) <diane.s.cua1@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.
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(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 N1 (USA) <diane.s.cua1@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 N1 (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>
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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 N1 (USA) <diane.s.cua1@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 MyNavy 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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EXHIBIT A
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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 ltr 1730 Ser N13/306 of 17 Nov 21
(3) BUMED ltr 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. I am 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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Subj:
REQUEST FOR WAIVER OF POLICY IN SUPPORT OF RELIGIOUS PRACTICE
2
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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Subj:
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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-naïve 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 24th 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.
b. On 15 February 2022, Judge Tillman Self issued a preliminary injunction for the
plaintiff in AIR FORCE OFFICER, v. LLOYD J. AUSTIN, III 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.”
c.
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
I am 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 I am 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.
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189a
DEPARTMENT OF THE NAVY
OFFICE OF THE CHIEF OF NAVAL OPERATIONS
2000 NAVY PENTAGON
WASHINGTON DC 20350-2000
c
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 ltr of 20 Sep 21 w/ends
(h) BUMED ltr 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
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IMMUNIZATION REQUIREMENTS
2
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, N0975)
BUMED
Pls.' Mot. for Classwide Prelim. Inj. App. 0145
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EXHIBIT B
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192a
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 ltr of 23 Feb 22 w/ends
(b) BUPERSINST 1730.11A
(c) DCNO/N1 RA Response ltr of 23 Nov 21
(d) CNO Appeal RA Response ltr 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.
JOHN B. NOWELL, JR
Copy to:
OPNAV (N131, N0975)
BUMED
NOWELL.JOHN.BL
ACKWELDER.JR.1
057611835
Digitally signed by
NOWELL.JOHN.BLACKWELDER
.JR.1057611835
Date: 2022.02.24 20:43:15 -05'00'
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EXHIBIT C
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194a
From: Rogers, Casey L LCDR USN NAVSCOLEOD EGLIN FL (USA) <casey.l.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 N1 (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 N1 (USA) <mery.a.katson.mil@us.navy.mil>
Cc: Rogers, Casey L LCDR USN NAVSCOLEOD EGLIN FL (USA) <casey.l.rogers.mil@us.navy.mil>; Beall,
Steven Gene CAPT USN NAVSCOLEOD EGLIN FL (USA) <steven.beall@navy.mil>;
'ALTN_Navy_Religious_Accommodations@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
Case 4:21-cv-01236-O Document 134 Filed 02/28/22 Page 152 of 160 PageID 4588
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195a
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
TWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000
&sdata=tUhEgalhoCm5cDayMSBuAH92Su06rroXI1hPnTvPTDM%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
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EOD 1
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EOD 1
EOD 1
EOD 1
EOD 1
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(199a)
199a
SEAL 16
200a
201a
DEPARTMENT OF THE NAVY
OtTICF.0f Tl 11: t"IIII F OF I\AVAI Ol•f.JUTIOll:S
llKMI N,w,• l'Ell:T,\I ;1 Iii
WAS) 1111:omi,; DC 20350 21Mlll
1730
Ser Nl/116418
2 Dec 21
From: Deputy Chief of Naval Operations (Manpower, Personnel, Training and Education) (NI)
To:
SOC(SEAL)
, USN
Via:
Commanding Officer, Naval Special Warfare Advanced Training Command
Subj:
REQUEST FOR RELIGIOUS ACCOMMODATION THROUGH W AIYER OF
IMMUNIZATION REQUIREMENTS
Ref:
(a) 42 U.S.C. §2000bb-1
(b) DoD Instruction 1300.17 of I September 2020
(c) SECNAVINST 1730.88
(d) ASN (M&RA) memo of 6 Jun 13
(e) MILPERSMAN 1730-020
(t) United States Attorney General memo of 6 Oct 17
(g) Your !tr of I 6 Oct 21 w/ends
(h) BUMED ltr 6320 Ser M44/21 UM42334 of 10 Nov 21
I.
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 compel ling 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 (t)
emphasizes that only those interests of the highest order can overbalance legitimate claims to the
free exercise of religion.
PX-19
SEAL 2
202a
203a
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)
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 ltr 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
SEAL 3
204a
Subj: REQUEST FOR RELIGIOUS ACCOMMODATION THROUGH WAIVER OF
IMMUNIZATION REQUIREMENTS
2
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, N0975)
BUMED
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DEPARTMENT OF THE NAVY
OFFICE OF THE CHIEF OF NAVAL OPERATIONS
2000 NAVY PENTAGON
WASHINGTON DC 20350-2000
c
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 ltr of 20 Sep 21 w/ends
(h) BUMED ltr 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)
210a
Subj: REQUEST FOR RELIGIOUS ACCOMMODATION THROUGH WAIVER OF
IMMUNIZATION REQUIREMENTS
2
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, N0975)
BUMED
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- www.supremecourt.gov