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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
NAVY SEALS 1-3, et al.,
Plaintiffs,
v.
LLOYD AUSTIN, III, in his official capacity as
Secretary of Defense, et al.,
Defendants.
Case No. 4:21-cv-01236-O
DEFENDANTS’ APPENDIX IN SUPPORT OF THEIR
OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION
Table of Appendix
Bates Stamps
Description
App001–App011
Email Chain Between Counsel re: Meet and Confer
App012–App016
Declaration of Elizabeth Galvez
App017–App053
Declaration of Captain Mery-Angela Sanabria Katson, Feb. 15, 2022
App054–App056
Declaration of Captain Mery-Angela Sanabria Katson, Feb. 3, 2022
App057–App023
DoD Instruction 1332.45
Dated: February 15, 2022
Respectfully submitted,
BRIAN M. BOYNTON
Acting Assistant Attorney General
ALEXANDER K. HAAS
Director, Federal Programs Branch
ANTHONY J. COPPOLINO
Deputy Director
/s/ Cassandra Snyder
ANDREW E. CARMICHAEL
AMY E. POWELL
Senior Trial Counsel
STUART J. ROBINSON
Senior Counsel
ZACHARY A. AVALLONE
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2
COURTNEY D. ENLOW
LIAM C. HOLLAND
CATHERINE YANG
CASSANDRA M. SNYDER (DC Bar. No. 1671667)
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
Tel: (202) 451-7729
Fax: (202) 616-8460
Email: cassandra.m.snyder@usdoj.gov
Counsel for Defendants
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3
CERTIFICATE OF SERVICE
I hereby certify that on February 15, 2022, I electronically filed the foregoing document
through the Court’s ECF system, which automatically notifies counsel of record for each party.
/s/ Cassandra Snyder
CASSANDRA M. SNYDER
Trial Attorneys
United States Department of Justice
Civil Division, Federal Programs Branch
Tel: (202) 451-7729
Fax: (202) 616-8460
Email: cassandra.m.snyder@usdoj.gov
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Exhibit 1
App.001
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From:
Carmichael, Andrew E. (CIV)
To:
Andrew Stephens; Heather Hacker; Powell, Amy (CIV); Enlow, Courtney D. (CIV)
Cc:
David Hacker; Mike Berry; Justin Butterfield; Holly Randall; Avallone, Zachary A. (CIV); Robinson, Stuart J. (CIV);
Holland, Liam C. (CIV)
Subject:
RE: Navy SEALs 1-26 v Biden, 4:21-cv-01235
Date:
Tuesday, January 25, 2022 3:05:00 PM
Andrew,
Are you available to discuss on the phone tomorrow? We are generally available between 11am
and 2pm EST tomorrow.
We would like to discuss your class definition and in particular the subclass definition because at
least one part—“who are now or will be assigned”—seems vague and undefinable. I was hoping
we could at least try to eliminate that as an issue by discussing if there is a more discernable class
definition.
We would also like to discuss how you planned to address cases brought in other jurisdictions
involving plaintiffs that would likely fall into your putative class definition.
Best regards,
Drew
Drew Carmichael
Senior Trial Counsel | United States Department of Justice
Civil Division | Federal Programs Branch
Tel: (202) 514-3346
From: Andrew Stephens <andrew@hackerstephens.com>
Sent: Tuesday, January 25, 2022 12:11 PM
To: Carmichael, Andrew E. (CIV) <Andrew.E.Carmichael@usdoj.gov>; Heather Hacker
<heather@hackerstephens.com>; Powell, Amy (CIV) <Amy.Powell@usdoj.gov>; Enlow, Courtney D.
(CIV) <Courtney.D.Enlow@usdoj.gov>
Cc: David Hacker <dhacker@firstliberty.org>; Mike Berry <mberry@firstliberty.org>; Justin
Butterfield <jbutterfield@firstliberty.org>; Holly Randall <hrandall@firstliberty.org>; Avallone,
Zachary A. (CIV) <Zachary.A.Avallone@usdoj.gov>; Robinson, Stuart J. (CIV)
<Stuart.J.Robinson@usdoj.gov>; Holland, Liam C. (CIV) <Liam.C.Holland@usdoj.gov>
Subject: [EXTERNAL] RE: Navy SEALs 1-26 v Biden, 4:21-cv-01235
Drew,
We plan to file a motion for class certification today. Could you please let me know if Defendants
are opposed or unopposed.
Best regards,
App.002
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Andrew
Andrew B. Stephens
Partner
www.hackerstephens.com
This message contains information that may be confidential and privileged. Unless you are the intended recipient (or
authorized to receive for the intended recipient), you may not use, copy, or disclose to anyone the message or any
information contained in the message. If you have received the message in error, please advise the sender by replying or by
phone at (512) 399-3022 and delete the message.
From: Carmichael, Andrew E. (CIV) <Andrew.E.Carmichael@usdoj.gov>
Sent: Monday, January 24, 2022 10:53 AM
To: Heather Hacker <heather@hackerstephens.com>; Andrew Stephens
<andrew@hackerstephens.com>; Powell, Amy (CIV) <Amy.Powell@usdoj.gov>; Enlow, Courtney D.
(CIV) <Courtney.D.Enlow@usdoj.gov>
Cc: David Hacker <dhacker@firstliberty.org>; Mike Berry <mberry@firstliberty.org>; Justin
Butterfield <jbutterfield@firstliberty.org>; Holly Randall <hrandall@firstliberty.org>; Avallone,
Zachary A. (CIV) <Zachary.A.Avallone@usdoj.gov>; Robinson, Stuart J. (CIV)
<Stuart.J.Robinson@usdoj.gov>; Holland, Liam C. (CIV) <Liam.C.Holland@usdoj.gov>
Subject: RE: Navy SEALs 1-26 v Biden, 4:21-cv-01235
Thanks. Some attorneys from my office may join. We can use this dial in:
1-877-465-7975
Pin 96446767#
From: Heather Hacker <heather@hackerstephens.com>
Sent: Monday, January 24, 2022 11:50 AM
To: Carmichael, Andrew E. (CIV) <Andrew.E.Carmichael@usdoj.gov>; Andrew Stephens
<andrew@hackerstephens.com>; Powell, Amy (CIV) <Amy.Powell@usdoj.gov>; Enlow, Courtney D.
(CIV) <Courtney.D.Enlow@usdoj.gov>
Cc: David Hacker <dhacker@firstliberty.org>; Mike Berry <mberry@firstliberty.org>; Justin
Butterfield <jbutterfield@firstliberty.org>; Holly Randall <hrandall@firstliberty.org>; Avallone,
Zachary A. (CIV) <Zachary.A.Avallone@usdoj.gov>; Robinson, Stuart J. (CIV)
<Stuart.J.Robinson@usdoj.gov>; Holland, Liam C. (CIV) <Liam.C.Holland@usdoj.gov>
Subject: [EXTERNAL] RE: Navy SEALs 1-26 v Biden, 4:21-cv-01235
App.003
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Hi Drew,
Yes, that works. Is the number below the best number for you? Or if others are going to participate,
do you have a dial-in that you want to use or do you want us to circulate ours?
Thanks,
Heather
From: Carmichael, Andrew E. (CIV) <Andrew.E.Carmichael@usdoj.gov>
Sent: Monday, January 24, 2022 10:34 AM
To: Heather Hacker <heather@hackerstephens.com>; Andrew Stephens
<andrew@hackerstephens.com>; Powell, Amy (CIV) <Amy.Powell@usdoj.gov>; Enlow, Courtney D.
(CIV) <Courtney.D.Enlow@usdoj.gov>
Cc: David Hacker <dhacker@firstliberty.org>; Mike Berry <mberry@firstliberty.org>; Justin
Butterfield <jbutterfield@firstliberty.org>; Holly Randall <hrandall@firstliberty.org>; Avallone,
Zachary A. (CIV) <Zachary.A.Avallone@usdoj.gov>; Robinson, Stuart J. (CIV)
<Stuart.J.Robinson@usdoj.gov>; Holland, Liam C. (CIV) <Liam.C.Holland@usdoj.gov>
Subject: RE: Navy SEALs 1-26 v Biden, 4:21-cv-01235
Heather,
Happy to jump on a call. Does 12pm EST work?
We are proposing that the Navy be allowed the authority to manage the employment conditions
of Plaintiffs as necessary; short of involuntary administrative separation and formal discipline (i.e
courts-martial/Article 15) for not receiving the COVID-19 vaccine.
For example, the Navy is seeking to preserve the freedom for its commanders to reassign
Plaintiffs from their current billets and units, cancel orders (including PCS and training orders),
and remove them from a deployable and medically qualified status due to their unvaccinated
status during the pendency of the litigation. Given the language on page 23-24 of the order as
well as the fact that NAVADMIN 225/21 and NAVADMIN 256/21 are enjoined as to Plaintiffs
we believe such actions are prohibited by the court’s current order.
Best regards,
Drew
Drew Carmichael
Senior Trial Counsel | United States Department of Justice
Civil Division | Federal Programs Branch
Tel: (202) 514-3346
From: Heather Hacker <heather@hackerstephens.com>
Sent: Monday, January 24, 2022 9:58 AM
App.004
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To: Carmichael, Andrew E. (CIV) <Andrew.E.Carmichael@usdoj.gov>; Andrew Stephens
<andrew@hackerstephens.com>; Powell, Amy (CIV) <Amy.Powell@usdoj.gov>; Enlow, Courtney D.
(CIV) <Courtney.D.Enlow@usdoj.gov>
Cc: David Hacker <dhacker@firstliberty.org>; Mike Berry <mberry@firstliberty.org>; Justin
Butterfield <jbutterfield@firstliberty.org>; Holly Randall <hrandall@firstliberty.org>; Avallone,
Zachary A. (CIV) <Zachary.A.Avallone@usdoj.gov>; Robinson, Stuart J. (CIV)
<Stuart.J.Robinson@usdoj.gov>; Holland, Liam C. (CIV) <Liam.C.Holland@usdoj.gov>
Subject: [EXTERNAL] RE: Navy SEALs 1-26 v Biden, 4:21-cv-01235
Drew,
I think we would benefit from some discussion on this. If we had an idea of what specifically you
were proposing, it might be possible for us to enter into a stipulation or joint motion for clarification
of the injunction. But we’d need a little more info first.
We’re available to discuss today, let us know.
Heather
From: Carmichael, Andrew E. (CIV) <Andrew.E.Carmichael@usdoj.gov>
Sent: Friday, January 21, 2022 4:56 PM
To: Andrew Stephens <andrew@hackerstephens.com>; Powell, Amy (CIV)
<Amy.Powell@usdoj.gov>; Enlow, Courtney D. (CIV) <Courtney.D.Enlow@usdoj.gov>; Heather
Hacker <heather@hackerstephens.com>
Cc: David Hacker <dhacker@firstliberty.org>; Mike Berry <mberry@firstliberty.org>; Justin
Butterfield <jbutterfield@firstliberty.org>; Holly Randall <hrandall@firstliberty.org>; Avallone,
Zachary A. (CIV) <Zachary.A.Avallone@usdoj.gov>; Robinson, Stuart J. (CIV)
<Stuart.J.Robinson@usdoj.gov>; Holland, Liam C. (CIV) <Liam.C.Holland@usdoj.gov>
Subject: RE: Navy SEALs 1-26 v Biden, 4:21-cv-01235
Counsel,
We plan to seek a stay pending appeal of the Court’s preliminary injunction order to the extent it
precludes Defendants from making the assignment and reassignment decisions that the military
deems appropriate, taking into account Plaintiffs’ vaccination status, including with respect to
deployment and training.
Could you please let us know your position on such a stay? We plan to file on Monday so please
let us know your position by 10am EST Monday. Thank you and have a nice weekend.
Best regards,
Drew
Drew Carmichael
Senior Trial Counsel | United States Department of Justice
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Civil Division | Federal Programs Branch
Tel: (202) 514-3346
From: Andrew Stephens <andrew@hackerstephens.com>
Sent: Thursday, January 20, 2022 10:44 AM
To: Powell, Amy (CIV) <Amy.Powell@usdoj.gov>; Enlow, Courtney D. (CIV)
<Courtney.D.Enlow@usdoj.gov>; Heather Hacker <heather@hackerstephens.com>
Cc: David Hacker <dhacker@firstliberty.org>; Mike Berry <mberry@firstliberty.org>; Justin
Butterfield <jbutterfield@firstliberty.org>; Holly Randall <hrandall@firstliberty.org>; Carmichael,
Andrew E. (CIV) <Andrew.E.Carmichael@usdoj.gov>; Avallone, Zachary A. (CIV)
<Zachary.A.Avallone@usdoj.gov>; Robinson, Stuart J. (CIV) <Stuart.J.Robinson@usdoj.gov>; Holland,
Liam C. (CIV) <Liam.C.Holland@usdoj.gov>
Subject: [EXTERNAL] RE: Navy SEALs 1-26 v Biden, 4:21-cv-01235
Amy,
We are planning to file an amended complaint which is likely to change the scope of discovery. Once
we get the amended complaint on file we’ll get you a draft 26(f) report.
Andrew
Andrew B. Stephens
Partner
www.hackerstephens.com
This message contains information that may be confidential and privileged. Unless you are the intended recipient (or
authorized to receive for the intended recipient), you may not use, copy, or disclose to anyone the message or any
information contained in the message. If you have received the message in error, please advise the sender by replying or by
phone at (512) 399-3022 and delete the message.
From: Powell, Amy (CIV) <Amy.Powell@usdoj.gov>
Sent: Tuesday, January 18, 2022 5:35 PM
To: Andrew Stephens <andrew@hackerstephens.com>; Enlow, Courtney D. (CIV)
<Courtney.D.Enlow@usdoj.gov>; Heather Hacker <heather@hackerstephens.com>
Cc: David Hacker <dhacker@firstliberty.org>; Mike Berry <mberry@firstliberty.org>; Justin
Butterfield <jbutterfield@firstliberty.org>; Holly Randall <hrandall@firstliberty.org>; Carmichael,
Andrew E. (CIV) <Andrew.E.Carmichael@usdoj.gov>; Avallone, Zachary A. (CIV)
<Zachary.A.Avallone@usdoj.gov>; Robinson, Stuart J. (CIV) <Stuart.J.Robinson@usdoj.gov>; Holland,
Liam C. (CIV) <Liam.C.Holland@usdoj.gov>
Subject: RE: Navy SEALs 1-26 v Biden, 4:21-cv-01235
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Andrew:
I think the way we left it on the call was that Plaintiffs’ counsel was going to take the first stab at a
draft 26(f) report. Have you been able to do that? I’m working on some language for our
“Defendants’ Position” sections as needed, but we may be able to come to joint language on some
items.
Amy
Amy Elizabeth Powell
Senior Trial Counsel, Federal Programs Branch
Civil Division, Department of Justice
150 Fayetteville St, Suite 2100
Raleigh, NC 27601
Phone: 919-856-4013
Email: amy.powell@usdoj.gov
From: Andrew Stephens <andrew@hackerstephens.com>
Sent: Thursday, January 06, 2022 9:38 AM
To: Enlow, Courtney D. (CIV) <Courtney.D.Enlow@usdoj.gov>; Powell, Amy (CIV)
<Amy.Powell@usdoj.gov>; Heather Hacker <heather@hackerstephens.com>
Cc: David Hacker <dhacker@firstliberty.org>; Mike Berry <mberry@firstliberty.org>; Justin
Butterfield <jbutterfield@firstliberty.org>; Holly Randall <hrandall@firstliberty.org>; Carmichael,
Andrew E. (CIV) <Andrew.E.Carmichael@usdoj.gov>; Avallone, Zachary A. (CIV)
<Zachary.A.Avallone@usdoj.gov>; Robinson, Stuart J. (CIV) <Stuart.J.Robinson@usdoj.gov>; Holland,
Liam C. (CIV) <Liam.C.Holland@usdoj.gov>
Subject: [EXTERNAL] RE: Navy SEALs 1-26 v Biden, 4:21-cv-01235
Great, thanks Courtney. Dial-in info below:
Dial-In Number 833 548 0282 (US Toll Free)
Conference ID 381 300 9255
Participant Passcode 030527
Andrew B. Stephens
Partner
www.hackerstephens.com
This message contains information that may be confidential and privileged. Unless you are the intended recipient (or
App.007
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Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 10 of 83 PageID 3766
authorized to receive for the intended recipient), you may not use, copy, or disclose to anyone the message or any
information contained in the message. If you have received the message in error, please advise the sender by replying or by
phone at (512) 399-3022 and delete the message.
From: Enlow, Courtney D. (CIV) <Courtney.D.Enlow@usdoj.gov>
Sent: Thursday, January 6, 2022 8:31 AM
To: Andrew Stephens <andrew@hackerstephens.com>; Powell, Amy (CIV)
<Amy.Powell@usdoj.gov>; Heather Hacker <heather@hackerstephens.com>
Cc: David Hacker <dhacker@firstliberty.org>; Mike Berry <mberry@firstliberty.org>; Justin
Butterfield <jbutterfield@firstliberty.org>; Holly Randall <hrandall@firstliberty.org>; Carmichael,
Andrew E. (CIV) <Andrew.E.Carmichael@usdoj.gov>; Avallone, Zachary A. (CIV)
<Zachary.A.Avallone@usdoj.gov>; Robinson, Stuart J. (CIV) <Stuart.J.Robinson@usdoj.gov>; Holland,
Liam C. (CIV) <Liam.C.Holland@usdoj.gov>
Subject: RE: Navy SEALs 1-26 v Biden, 4:21-cv-01235
Good morning Andrew,
Yes, we are available on Monday at 10:00 EST/9:00 CST. Can you send a dial-in?
Thanks,
Courtney
Courtney Enlow
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W., Room 12102
Washington, D.C. 20005
(202) 616-8467
courtney.d.enlow@usdoj.gov
From: Andrew Stephens <andrew@hackerstephens.com>
Sent: Wednesday, January 05, 2022 2:52 PM
To: Powell, Amy (CIV) <Amy.Powell@usdoj.gov>; Enlow, Courtney D. (CIV)
<Courtney.D.Enlow@usdoj.gov>; Heather Hacker <heather@hackerstephens.com>
Cc: David Hacker <dhacker@firstliberty.org>; Mike Berry <mberry@firstliberty.org>; Justin
Butterfield <jbutterfield@firstliberty.org>; Holly Randall <hrandall@firstliberty.org>; Carmichael,
Andrew E. (CIV) <Andrew.E.Carmichael@usdoj.gov>; Avallone, Zachary A. (CIV)
<Zachary.A.Avallone@usdoj.gov>; Robinson, Stuart J. (CIV) <Stuart.J.Robinson@usdoj.gov>; Holland,
Liam C. (CIV) <Liam.C.Holland@usdoj.gov>
App.008
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Subject: [EXTERNAL] RE: Navy SEALs 1-26 v Biden, 4:21-cv-01235
Amy,
By my calculation, January 10th is the deadline for the Rule 26 conference. We would propose 9am
CST on Monday if that works for you.
Best regards,
Andrew
From: Powell, Amy (CIV) <Amy.Powell@usdoj.gov>
Sent: Tuesday, January 4, 2022 4:35 PM
To: Andrew Stephens <andrew@hackerstephens.com>; Enlow, Courtney D. (CIV)
<Courtney.D.Enlow@usdoj.gov>; Heather Hacker <heather@hackerstephens.com>
Cc: David Hacker <dhacker@firstliberty.org>; Mike Berry <mberry@firstliberty.org>; Justin
Butterfield <jbutterfield@firstliberty.org>; Holly Randall <hrandall@firstliberty.org>; Carmichael,
Andrew E. (CIV) <Andrew.E.Carmichael@usdoj.gov>; Avallone, Zachary A. (CIV)
<Zachary.A.Avallone@usdoj.gov>; Robinson, Stuart J. (CIV) <Stuart.J.Robinson@usdoj.gov>; Holland,
Liam C. (CIV) <Liam.C.Holland@usdoj.gov>
Subject: RE: Navy SEALs 1-26 v Biden, 4:21-cv-01235
Thanks, Andrew. It has been a busy week here. We tend to believe discovery and a rule 26
conference is likely to be premature at this point, although we would be happy to discuss that
position at a convenient time. Would early next week work? Perhaps Monday morning?
Amy
Amy Elizabeth Powell
Senior Trial Counsel, Federal Programs Branch
Civil Division, Department of Justice
150 Fayetteville St, Suite 2100
Raleigh, NC 27601
Phone: 919-856-4013
Email: amy.powell@usdoj.gov
From: Andrew Stephens <andrew@hackerstephens.com>
Sent: Tuesday, January 04, 2022 5:14 PM
To: Enlow, Courtney D. (CIV) <Courtney.D.Enlow@usdoj.gov>; Heather Hacker
<heather@hackerstephens.com>
Cc: David Hacker <dhacker@firstliberty.org>; Mike Berry <mberry@firstliberty.org>; Justin
Butterfield <jbutterfield@firstliberty.org>; Holly Randall <hrandall@firstliberty.org>; Carmichael,
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Andrew E. (CIV) <Andrew.E.Carmichael@usdoj.gov>; Powell, Amy (CIV) <Amy.Powell@usdoj.gov>;
Avallone, Zachary A. (CIV) <Zachary.A.Avallone@usdoj.gov>; Robinson, Stuart J. (CIV)
<Stuart.J.Robinson@usdoj.gov>; Holland, Liam C. (CIV) <Liam.C.Holland@usdoj.gov>
Subject: [EXTERNAL] RE: Navy SEALs 1-26 v Biden, 4:21-cv-01235
Courtney,
Could you please let me know your availability Thursday or Friday for a Rule 26 conference?
Thanks,
Andrew
Andrew B. Stephens
Partner
www.hackerstephens.com
This message contains information that may be confidential and privileged. Unless you are the intended recipient (or
authorized to receive for the intended recipient), you may not use, copy, or disclose to anyone the message or any
information contained in the message. If you have received the message in error, please advise the sender by replying or by
phone at (512) 399-3022 and delete the message.
From: Andrew Stephens <andrew@hackerstephens.com>
Sent: Tuesday, January 4, 2022 5:48 AM
To: Enlow, Courtney D. (CIV) <Courtney.D.Enlow@usdoj.gov>; Heather Hacker
<heather@hackerstephens.com>
Cc: David Hacker <dhacker@firstliberty.org>; Mike Berry <mberry@firstliberty.org>; Justin
Butterfield <jbutterfield@firstliberty.org>; Holly Randall <hrandall@firstliberty.org>; Carmichael,
Andrew E. (CIV) <Andrew.E.Carmichael@usdoj.gov>; Powell, Amy (CIV) <Amy.Powell@usdoj.gov>;
Avallone, Zachary A. (CIV) <Zachary.A.Avallone@usdoj.gov>; Robinson, Stuart J. (CIV)
<Stuart.J.Robinson@usdoj.gov>; Holland, Liam C. (CIV) <Liam.C.Holland@usdoj.gov>
Subject: Re: Navy SEALs 1-26 v Biden, 4:21-cv-01235
Courtney,
Heather is on vacation but since the court ruled yesterday we should proceed with normal
deadlines. Also we would like to schedule a Rule 26 conference for this Thursday or Friday. Does
10am CST Thursday or Friday work for you all?
Andrew
Andrew B. Stephens
Partner
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Hacker Stephens LLP
www.hackerstephens.com
This message contains information that may be confidential and privileged. Unless you are the intended recipient (or
authorized to receive for the intended recipient), you may not use, copy, or disclose to anyone the message or any
information contained in the message. If you have received the message in error, please advise the sender by replying or by
phone at (512) 399-3022 and delete the message.
From: Enlow, Courtney D. (CIV) <Courtney.D.Enlow@usdoj.gov>
Sent: Monday, January 3, 2022 2:12 PM
To: Heather Hacker
Cc: Andrew Stephens; David Hacker; Mike Berry; Justin Butterfield; Holly Randall; Carmichael,
Andrew E. (CIV); Powell, Amy (CIV); Avallone, Zachary A. (CIV); Robinson, Stuart J. (CIV); Holland,
Liam C. (CIV)
Subject: Navy SEALs 1-26 v Biden, 4:21-cv-01235
Good afternoon Heather,
I hope you had a pleasant holiday season and a happy new year.
I wanted to touch base about motion to dismiss briefing. Our motion to dismiss is currently
due Friday, January 14. We think it would be a better use of the parties’ time and resources to
hold off on the motion to dismiss briefing until after the Court has ruled on plaintiffs’ motion
for a preliminary injunction. We propose that we file our motion to dismiss three weeks after
the Court rules on the motion for a preliminary injunction. We would agree to plaintiffs
taking additional time to file your response if desired. Please let me know if you agree with
this proposal, and I’ll draft a motion.
Thanks,
Courtney
Courtney Enlow
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, N.W., Room 12102
Washington, D.C. 20005
(202) 616-8467
courtney.d.enlow@usdoj.gov
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Exhibit 2
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App.015
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App.016
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Exhibit 3
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1
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
U.S. NAVY SEALs 1-26;
U.S. NAVY SPECIAL WARFARE
COMBATANT CRAFT CREWMEN 1-5;
U.S. NAVY EXPLOSIVE ORDNANCE
DISPOSAL TECHNICIAN 1; and
U.S. NAVY DIVERS 1-3,
Plaintiffs,
v.
JOSEPH R. BIDEN, JR., in his official
capacity as President of the United States of
America; LLOYD J. AUSTIN, III,
individually and in his official capacity as
United States Secretary of Defense; UNITED
STATES DEPARTMENT OF DEFENSE;
CARLOS DEL TORO, individually and in
his official capacity as United States
Secretary of the Navy,
Defendants.
Case No. 4:21-CV-01236-O
DECLARATION OF CAPTAIN MERY-ANGELA SANABRIA KATSON, U.S. NAVY
I, Captain Mery-Angela Sanabria Katson, U.S. Navy, hereby state and declare as follows:
1.
I am a captain in the United States Navy, currently serving as the Branch Head,
Enlisted Plans and Policy (OPNAV N132), located in Arlington, Virginia. I make this
declaration in my official capacity, based upon my personal knowledge and upon information
that has been provided to me in the course of my official duties.
2.
The Navy requires immunizations for all Service members, based on its
compelling interest in preventing the spread of diseases to support mission accomplishment,
including military readiness and health and safety, at the individual, unit, and organizational
levels. Navy policy also works to support a Service member’s religious practices to the broadest
App.018
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2
extent possible within the bounds of military readiness, unit cohesion, good order, discipline,
health and safety. Navy policy concerning requests for the accommodation of religious practices
generally, including immunizations, is outlined in Bureau of Naval Personnel Instruction
(“BUPERSINST”) 1730.11A (attached as Exhibit A to this declaration). Specific guidance
related to immunization exemptions for religious beliefs is found in the Naval Military Personnel
Manual (“MILPERSMAN”), Article 1730-020 (attached as Exhibit B to this declaration).
Religious Accommodation Request Process Overview
3.
An active duty or reserve Navy Service member1 seeking an exemption of
immunization for religious reasons must initiate the request in in accordance with BUPERSINST
1730.11A, ¶ 5.e. The requirements include a written request via his or her commander stating
the waiver sought, followed by an interview with a Navy chaplain. A template for the Service
member’s request is provided in BUPERSINST 1730.11A, enclosure (1). Navy commanders are
required to ensure the applicant receives counseling related to the potential health and travel
impacts they may incur as a consequence of their waiver, and the possibility that their waiver
may be revoked in the event they are at imminent risk of disease. MILPERSMAN 1730-020 ¶
6.2 The required counseling is recorded using a standard “Administrative Remarks” form (i.e.
NAVPERS 1070/613, commonly known as a “Page 13”), which documents that the Service
member has been advised of potential consequences of the immunization waiver request.
MILPERSMAN 1730-020 ¶ 4.c.
1 “This instruction applies to all active and reserve members of the Navy, including applicants for entry into the
Navy and Navy Reserve, as well as midshipmen at the U.S. Naval Academy (USNA) and in the Naval Reserve
Officers Training Corps (NROTC), and officers and officer candidates in Navy officer accession program.”
BUPERSINST 1730.11A ¶ 3.a
2 The authority to revoke approved an approved religious accommodation exemption from COVID-19 vaccination is
withheld per NAVADMIN 225/21 ¶ 7.g.
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3
4.
Action on a Service member’s written request for accommodation must be
handled in a timely manner. Within the Navy, the approval authority for requests for
immunization exemptions for religious beliefs is the Deputy Chief of Naval Operations
(Manpower, Personnel, Training and Education) (hereinafter DCNO N1).3 BUPERSINST
1730.11A, ¶ 5.a.(4). Requests for religious accommodation forwarded from an O-6 commanding
officer or immediate superior in command (“ISIC”) to DCNO N1 for adjudication must be
forwarded within seven days from the date the requestor submitted the request to his/her
immediate commander. Review and final action must be completed in accordance with
Department of Defense Instruction (“DoDI”) 1300.17, which provides that action on requests
must generally be completed 30 to 60 days from receipt of the Service member’s request. See
DoDI 1300.17, ¶ 3.2.c., Table 1. However, exceptions to those timelines are authorized in
exceptional circumstances by DODI 1300.17, ¶ 3.2.c. and SECNAVINST 1730.11B, Ch-1, ¶ 5.c.
No disciplinary or administrative action will be initiated while a request for an exemption for
religious accommodations is pending. If a request for a religious accommodation for vaccination
is denied, the Navy Service member may appeal the DCNO N1 decision to the Chief of Naval
Operations (CNO).4 BUPERSINST 1730.11A, ¶ 5.f. Commanders routing requests to DCNO
N1 must forward the matter within seven days from the date of the Service member’s request, in
accordance with BUPERSINST 1730.11A, ¶ 5.c.
Evaluation of Religious Accommodation Requests
5.
Within the Navy, requests for religious accommodation are evaluated on a case-
by-case basis using criteria outlined in paragraph 5 of BUPERSINST 1730.11A. The instruction
3 DCNO N1 is identified by the alternate designation of CNP (Chief of Naval Personnel) in MILPERSMAN 1730-
020). DCNO N1 and CNP interchangeable acronyms and refer to the same position and official. The current DCNO
N1 is Vice Admiral John Nowell, Jr.
4 The current CNO is Admiral Michael Gilday.
App.020
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4
advises commanders that “[i]t is essential that [they] 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.” Id. ¶ 5.a.(2). A template for the commander’s
endorsement is found in BUPERSINST 1730.11A, enclosure (4). The endorsement must also
provide information required by MILPERSMAN 1730-020 ¶ 5, including: (1) the negative effect
(if any) of the requested accommodation on the unit’s military readiness, health, or safety; (2) the
number of Service members in the command that have been granted a similar exemption; and (3)
when recommending denial, a determination that the denial furthers a compelling government
interest and there is no less restrictive means of furthering that interest. MILPERSMAN 1730-
020 ¶ 5. a.-b. Navy commanders are directed to evaluate each request considering the following
factors:
a. Applicable operational or regional policies,
b. Importance of the military policy, practice or duty in terms of mission
accomplishment, including military readiness, unit cohesion, good order,
discipline, health, or safety,
c. Importance of the practice to the requestor,
d. Cumulative impact of repeated accommodations of a similar nature; and
e. Alternate means to fulfill the request.
BUPERSINST ¶ 5.a.(1).
6.
If an applicant carries his or her burden of demonstrating that the requirement
would result in a substantial burden on the applicant’s exercise of his or her religion, Navy
commanders will not deny or recommend denial of a religious accommodation unless the denial
or partial denial furthers a compelling governmental interest and is the least restrictive means of
furthering that compelling government interest. Id. ¶ 5.a.(2). Factors for commanders to
consider include (but are not limited to) whether approving the accommodation would pose a
App.021
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5
health or safety hazard, or otherwise impair mission accomplishment, good order, discipline,
morale or unit cohesion. Id. While commanders are directed to consider the cumulative impact
of accommodations of a similar nature, they are advised not to approve or deny requests to
accommodate religious practices simply because similar requests were approved or denied. Id. ¶
5.a.(1).
Sincerely Held Religious Beliefs
7.
The Navy chaplain interview assesses the sincerity of the requestor’s religious
belief using a standard checklist found in BUPERSINST 1730.11A, enclosure (2). The interview
checklist directs the chaplain to assess the requestor’s sincerity using one or more of the
following factors:
a. Requestor was credible (consistently keeps tenets, practices, etc.).
b. Requestor’s demeanor and pattern of conduct are consistent with the request.
c. Requestor participates in activities associated with the belief(s).
d. Other persons supporting the claim are credible.
e. Request is supported by letter(s) of verification or endorsement from an
organization espousing the beliefs which are the basis for the claim.
Id.
A requestor is not required to provide responses to each of these factors in order to show a
sincere religious belief, and chaplain may find the requestor’s beliefs sincere based on any of the
factors above. The chaplain does not assess the validity of the requestor’s beliefs. The Navy
chaplain is also directed to explore alternate means of accommodating the requestor’s practice in
the interview. Id. After the interview, the chaplain provides the requestor’s commander a
written summary of the Service member’s request, the religious belief(s) upon which the request
is made, and a “professional and objective opinion regarding the religious importance of the
request to the member.” BUPERSINST 1730.11A, enclosure (3). Finally, the chaplain provides
the commander an assessment of the sincerity of the Service member’s personal religious belief,
App.022
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6
including any information provided during the interview. Id. A copy of this memorandum is
provided to the requestor. Id.
8.
The chaplain assessment is not itself a determination of the sincerity of the
requestor’s belief. While not questioning the validity of the beliefs, the approval and appeal
authority (i.e. DCNO N1 and CNO, respectively) for the Navy will consider the chaplain’s input
and assess the sincerity of the religious belief on a case-by-case basis using the same criteria in
BUPERSINST 1730.11A, enclosure (2). The chaplain’s conclusion of the sincerity of the
requestor’s religious beliefs is not binding on either the approval or appeal authority.
Substantial Burden
9.
Where there is a sincerely held religious belief, the Navy’s approval and appeal
authority (if applicable) determine if the requirement to be immunized imposes a substantial
burden on an exercise of religion based upon that belief. This is also a case-by-case
determination. Some exercises of religion may not be substantially burdened if the requester has
demonstrated acquiescence to the purported burden in other portions of their life (e.g., receiving
other vaccinations or using other products developed with aborted fetal cells). Additionally, if
the requester’s sincerely held religious belief concerns objections to the mRNA vaccines, the
requestor’s belief may not be substantially burdened by receiving a different type of vaccine.
10.
Requests for religious exemption from the COVID-19 vaccine have been
adjudicated exclusively based on the Navy’s compelling governmental interests and the least
restrictive means for furthering those interests. As such, the requestor’s professed sincere
religious beliefs and the asserted substantial burden to those beliefs are presumed, and neither
have been scrutinized or challenged in the course of adjudicating COVID-19 religious
accommodation requests.
App.023
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7
Compelling Government Interest
11.
Where a mandatory vaccination policy substantially burdens a Service member’s
exercise of religion, the Navy must establish that the substantial burden is required in furtherance
of a compelling Navy interest and is the least restrictive means of accomplishing that interest.
The Navy has a compelling governmental interest in mission accomplishment at the individual,
unit, and organizational levels, including such necessary elements of mission accomplishment as
military readiness, unit cohesion, good order and discipline, and health and safety.
Least Restrictive Means
12.
The approval and appeal authority will consider whether there are less restrictive
means to achieve the Navy’s compelling government interest. This is a case-by-case review that
is highly dependent on the particular facts applicable to the individual requester. Under some
circumstances, the review of the least restrictive means available to achieve the Navy’s
compelling interest is so clear that this factor takes precedence over all other considerations. As
noted below, specific duty assignments and the requirement for Sailors to be immediately
available to deploy in the event of military exigencies will result in less restrictive means not
being feasible in most circumstances. A religious accommodation will be approved if it does not
adversely impact the Navy’s compelling government interest in preventing the spread of diseases
to support mission accomplishment, including military readiness, unit cohesion, good order and
discipline, or health and safety, at the individual, unit, and organizational levels.
13.
Communicable diseases such as COVID-19 can interfere with the ability of
Service members to accomplish the Navy’s mission at the individual, unit, and organizational
levels, decrease the overall health of the force, degrade military readiness, and place additional
strain on already limited medical resources. Spread of communicable diseases among Sailors
App.024
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8
who live and work in confined quarters aboard ships, or in austere deployed environments with
limited access to immediate medical care, or for those who live or work in close proximity to
others in the shore establishment, has the potential to cause mission failure if one or more
personnel become too sick to perform their jobs. Logistical challenges and operational risk
inherent in moving personnel to and from deployed ships and other deployed environments
makes it difficult, if not impossible, to quickly or safely evacuate sick personnel and replace
them with healthy personnel. Navy ships have limited medical and long-term placement
capabilities. If even one Sailor infected with a communicable disease requires treatment beyond
the capabilities of a ship’s medical department, or if multiple Sailors must be placed in critical
care, a decision will have to be made whether the ship may have to abandon its mission and
transit to a location that offers more adequate treatment. Transit time is not instantaneous and
depends on factors such as ship location, current mission requirements, and port access or
availability. That time variable creates additional health risk for infected Sailors and the potential
for disease transmission to the remaining crew. Finally, the spread of communicable diseases
from U.S. Navy personnel to foreign or host-nation personnel would have a detrimental impact
on U.S. foreign relations, especially if the illness was viewed as preventable.
14.
As the COVID-19 pandemic unfolded, the Navy was compelled to implement
stringent restrictions across the force to protect the health of the force and ensure military
readiness. For all personnel, severe restrictions were imposed on travel (both official and
unofficial), permanent change of station (PCS) transfers, and activities such as dining in
restaurants or engaging in activities outside of military installations. Sailors on deployment or
preparing for deployment were ordered to quarantine within “bubbles” for two weeks before
getting underway (this quarantine is referred to as Restriction of Movement (“ROM”)).
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9
Additionally, almost all quality of life port visits were prohibited, further exacerbating the mental
and physical toll of the deployment. Personnel at sea and ashore were ordered to adhere to
health protection policies, to include requirements to sanitize workspaces, wash hands
frequently, wear masks, and maintain 6-foot social distancing.
15.
The effectiveness of these measures is extremely limited on ships, where Sailors
must live, work, eat, and sleep in close proximity to other Sailors. On board a ship, Sailors must
navigate narrow passageways that do not permit sufficient social distancing. Ships have almost
no windows, and fresh air circulation is intentionally limited, as ships are designed to be able to
seal off compartments to protect against water intrusion or chemical, biological, or radiological
weapons attacks. Though Sailors work to keep their ships clean, safe transit up and down
ladders and through watertight doors requires everyone to touch all of the same handrails and
handles frequently. Ships typically have limited space to quarantine Sailors from the rest of the
crew, if such facilities exist at all. Frequent handwashing is not generally feasible because Sailors
have to transit up and down ladders, using those shared handrails, to get between their
workspaces and the restrooms (“heads”) in which they can wash their hands. Almost all enlisted
berthing compartments feature three-foot by six-foot bunks (“racks”) that are generally stacked
three high with narrow passages between rows. Enlisted berthing compartments have as few as
12 and as many 210 personnel sleeping in the same space. Sailors in larger berthing
compartments are typically never alone in the head when they use the facilities, shower, or brush
their teeth, because the head is a shared space used by 200 or more personnel.
16.
Health protection measures are more feasible ashore, but the effectiveness is
highly dependent on the type of work a Sailor does and the configuration of their workspace.
Additionally, even for shore-duty commands, COVID-19 restrictions impose a substantial and
App.026
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unsustainable administrative cost. Commands across the Navy Service have been obligated to
adopt telework policies, where feasible,5 or implement staggered shift rotations to avoid possible
exposure of personnel. For Sailors placed on ROM, commands are required to track and report
their status, as well as provide rooms, meals and essentials to Sailors in a ROM status.6
Restrictions on official travel limited training opportunities for Sailors, while restrictions on
unofficial travel limited, and in some instances precluded, personal leave for Sailors outside of
extremely circumscribed geographic areas. Finally, Sailors’ assignments typically alternate
between sea duty and shore duty; however, every Sailor must be deployable. See OPNAVINST
1300.20, Deployability Assessment and Assignment Program (requiring administrative
separation processing or referral to the Disability Evaluation System for any Sailor who is
undeployable for 12 months or longer). Sailors assigned to shore duty or the Navy Reserve need
to be ready to deploy at a moment’s notice as military exigencies require. Even a Sailor on shore
duty pending retirement can be called up to deploy if necessary to achieve mission requirements.
Staffing Process
17.
Every day, military commanders make decisions, both operational and
administrative in nature, that are critical to our Nation’s security. Commanders rely on their
experience and judgment, their planners, and their staff officers, in order to resolve a broad range
of simple, routine, and complex problems. Navy staff work is a dynamic process that requires
close cooperation and involvement between the commander and staff to ensure that time is used
efficiently and that the most effective process is implemented to meet the commander’s guidance
5 Telework is not an option for many Sailors, including those performing work using classified networks, those who
work with specialized equipment, or for any work, training, or maintenance on military assets (e.g. ships, aircraft,
submarines).
6 The DoD even instituted a new pay entitlement, “Hardship Duty Pay – Restriction of Movement (HDP-ROM),” in
order to compensate Service members for the hardship associated with being ordered to self-monitor in isolation
(i.e., restriction of movement) somewhere other than at their home or a government-funded lodging facility, if such
facilities were unavailable.
App.027
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11
and intent. Staff work is often conducted in a resource and time-constrained environment,
necessitating effective and flexible interaction during the process to ensure the commander is
presented with all available information to make an informed decision in an efficient manner.
Consequently, Standard Operating Procedures (“SOPs”) are frequently used tools by military
staff officers to implement efficient and uniform administrative procedures across a wide-range
of military issues.
18.
I am aware Plaintiffs have provided the court with an unidentified Service
member’s complaint of wrongs under Article 138, which includes a SOP tailored to the staffing
process for religious accommodation requests from the COVID-19 vaccine, and which the
complainant alleges violates the Religious Freedom Restoration Act (RFRA) and DoD policy.
See ECF 62, Ex. 1. In fact, the SOP was developed in order to efficiently process the
unprecedented influx of religious accommodation requests related to the COVID-19 vaccine
requirement.7 The SOP outlines the following six-phase, 50-step process to ensure that all
religious accommodation requests are complete in order to ensure they are fairly adjudicated:
a. Phase 0 (Steps 1-5) outlines the process from receipt of a RA request,
confirmation of receipt, and the initial steps to create a local file for the request for
processing.
b. Phase 1 (Steps 6-13) outlines the initial intake phase, during which the RA
request is added to a spreadsheet for tracking purposes and evaluated to ensure all
necessary documents are present.
7 Based on a review of records available, only 66 requests for religious accommodation from any vaccine (excluding
the COVID-19 vaccines) were received from 2015 to the present. By contrast, 4,175 religious accommodation
requests from the COVID-19 vaccine have been received as of February 14, 2022.
App.028
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c. Phase 2 (Steps 14-15) includes a step that renames the files to organize them,
and includes the addition of a letter template. Specific information within the template is
tailored to reflect the requestor’s name and dates of related materials.
d. Phase 3 (Steps 16-29) describes the process by which the RA request is added
to DON Tracker, the Navy’s current task management system. Specific offices are tasked
to provide a response within given deadlines, and the point of contact is able to monitor
the responders’ progress within the system. Once all responders have provided inputs,
they are compiled and placed in a new folder to indicate the request is ready for review.
e. Phase 4 (Steps 30-44) compiles RA requests that are ready for processing into
batches of 10 packages for review and adjudication. The packages are organized by
priority and an action memo is added to provide the adjudication authority with an
overview of the contents and recommended disposition. At Step 35, data related to the
RA requests is input into a spreadsheet. Specifically, a summary of the member’s request,
the chaplain’s assessment, a least restrictive means analysis, in addition to medical, legal,
and professional recommendations, are provided. The compiled files are then forwarded
to the processor’s assigned reviewer, who is notified that the package is ready for review.
f. Phase 5 (Steps 45-47) outlines the process by which the request package is
routed, first through OPNAV N13 for recommendation to DCNO N1, and then to DCNO
N1 for review and adjudication. Step 46 provides that, “[o]nce a final decision has been
made on the request, N1 will return the signed [response letter].” In the event changes are
required to be made to the letter (e.g., to change the disposition, correct typos or other
errors, request clarification or additional information, etc.) the document may be returned
App.029
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13
to the processor to be further modified before be resubmitted to DCNO N1 for
adjudication.
g. Phase 6 (Steps 48-50) describes the manner in which the adjudicated RA
request is returned to the requestor via his or her chain of command.
19.
Significantly, the SOP does not dictate the manner in which the adjudicating
authority, i.e., DCNO N1, assesses any particular RA request. The SOP is entirely devoted to the
administrative processing of RA requests to promptly field new RA requests, efficiently compile
the necessary information for DCNO N1 action, and return adjudicated requests to the Service
member. Indeed, Steps 1-45 are solely concerned with actions below the level of DCNO N1, and
Steps 46-50 describe the actions taken subsequent to DCNO N1’s decision. All of the steps
described in the SOP are performed by administrative clerks who do not provide any
recommendation with respect to the request, nor do they have any decision-making authority.
Finally, DCNO N1 does not refer to the SOP in the course of his review of RA requests, nor does
the SOP provide any procedural guidance to such a review. Rather, the SOP ensures that DCNO
N1 is provided with all necessary information and materials in order to evaluate each case
separately, as required by DoD policy and RFRA.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true
and correct. Executed this 15th day of February, 2022.
Mery-Angela Sanabria Katson
Captain, U.S. Navy
App.030
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Katson Declaration
Exhibit A
App.031
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DEPARTMENT OF THE NAVY
CHIEF OF NAVAL PERSONNEL
701 SOUTH COURTHOUSE ROAD
ARLINGTON VA 22204-2472
BUPERSINST 1730.11A
N13
16 Mar 2020
BUPERS INSTRUCTION 1730.11A
From: Chief of Naval Personnel
Subj: STANDARDS AND PROCEDURES GOVERNING THE ACCOMMODATION OF
RELIGIOUS PRACTICES
Ref:
(a) DoD Instruction 1300.17 of 10 February 2009
(b) SECNAVINST 1730.8B
(c) NAVPERS 15665I
(d) BUMEDINST 6230.15B
Encl: (1) Sample Request for Waiver of Policy to Accommodate a Religious Practice
(Template)
(2) Chaplain Interview Checklist (Template)
(3) Chaplain Memorandum for the Record (Template)
(4) Religious Accommodation Approval or Endorsement (Template)
1. Purpose. To provide policy, guidance, procedures and responsibilities for the
accommodation of practices in support of sincerely held religious beliefs for Sailors and
prospective accessions, per references (a) and (b). Reference (c) provides the Navy’s manner of
wear policy for the most commonly requested waivers of uniform and grooming standards in
support of religious practices, as delineated in paragraph 5.
a. This revision updates policy, guidance and procedures for the accommodation of
practices in support of sincerely held religious beliefs.
b. This is a complete revision and should be reviewed in its entirety.
2. Cancellation. BUPERSINST 1730.11.
3. Scope and Applicability
a. This instruction applies to all active and reserve members of the Navy, including
applicants for entry into the Navy and Navy Reserve, as well as midshipmen at the U.S. Naval
Academy (USNA) and in the Naval Reserve Officers Training Corps (NROTC), and officers and
officer candidates in Navy officer accession programs. Nothing in this instruction precludes
disciplinary or administrative action for conduct that is proscribed by the Uniform Code of
Military Justice or supporting policies.
App.032
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BUPERSINST 1730.11A
16 Mar 2020
2
b. Conscientious Objectors. Conscientious objections are not covered under this instruction.
See DoD Instruction 1300.06 (Conscientious Objector) of 12 July 2017.
c. Peyote Use. Peyote use is not covered under this instruction. See Assistant Secretary of
Defense for Force Management Policy Memorandum of 25 April 1997, Sacramental Use of
Peyote by Native American Service Members.
3. Background. This policy complies with references (a) and (b) and supports the Navy’s
culture of diversity, tolerance and inclusion. In line with section 2000bb-1 of Title 42, United
States Code, requests for religious accommodation from a military policy, practice or duty that
substantially burdens a Sailor’s exercise of religion may be denied only when the military policy,
practice or duty furthers a compelling government interest and is the least restrictive means
available of furthering that compelling government interest. Religious liberty is more than
freedom to worship. It includes the freedom to integrate one’s religion into every aspect of one’s
life. When the policies or procedures of the Navy conflict with a Sailor’s religious practices, the
Navy works to support the Sailor’s religious practices to the broadest extent possible within the
bounds of military readiness, unit cohesion, good order, discipline, health and safety. Many
religious practices such as (but not limited to) religious observances and dietary practices do not
need a request for waiver of policy and can be accommodated at the command level.
4. Roles and Responsibilities
a. Sailors. Sailors seeking accommodation of a religious practice that requires a waiver of
Navy policy (“requestors”) must submit a request in writing to their commander, consistent with
enclosure (1). Prospective accessions seeking accommodation of a religious practice that
requires a waiver of Navy policy (“requestors”) should use the accession source chain of
command, consistent with subparagraph 5b, enclosure (1) and Table 2.
(1) A requestor must comply with the applicable policy, practice, direction or duty from
which he or she is requesting a religious accommodation until the request is adjudicated.
Additionally, commanders and commanding officers (“commanders”) may temporarily modify
or suspend a religious accommodation, consistent with subparagraph 5g.
(2) A requestor with an approved religious accommodation must inform his or her chain
of command of the approved accommodation upon checking in to a new command or changing
duties. A requestor must retain a copy of the approved accommodation and be able to produce it
within five working days.
b. Chaplains. Command chaplains are responsible for advising and assisting commands
with religious accommodation policy execution. In line with SECNAVINST 1730.7E,
chaplains, assisted by Religious Program Specialists, provide for and facilitate religious
requirements of Sailors and authorized users and advise commanders on command religious
program matters throughout the Department of the Navy (DON).
App.033
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(1) A Navy chaplain will conduct an administrative interview for each religious
accommodation request that requires a waiver of policy. Local chaplains should be used if
available. Chaplains may use any means available to ensure the interview takes place promptly,
such as telephone or video conference. The chaplain should use enclosure (2) during the
interview and must produce a memorandum for the record consistent with enclosure (3).
(2) The chaplain will inform the Sailor or prospective accession that the interview is for
the purpose of preparing a memorandum for the record and advising the command, and that the
content of the interview is not privileged or confidential as defined in SECNAVINST 1730.9A
and the Manual for Courts-Martial Military Rule of Evidence 503.
c. Commanders and Commanding Officers (CO). Commanders must process requests
according to the timelines, routing and criteria set forth in this instruction.
(1) When forwarding a request for adjudication or appeal, commanders will use
enclosure (4).
(2) Commanders must obtain the advice of a judge advocate and a chaplain prior to
acting on a request that involves a waiver of Navy policy.
(3) Commanders will include a religious needs assessment upon check-in to the
command in line with OPNAVINST 1730.1E to include identification of Sailors who may need
previously-approved religious accommodation waivers reviewed.
d. Deputy Chief of Naval Operations (Manpower, Personnel, Training and Education)
(CNO N1). CNO N1 is responsible for overseeing this religious accommodation policy and will
review and act on religious accommodation requests that require waiver of Department of Navy
(DON) policy and are routed to CNO N1 for approval as indicated in Tables 1 and 2.
5. Policy. In accordance with Article 0820 of United States Navy Regulations, 1990,
commanders will provide maximum opportunity for the free exercise of religion by members of
the naval service.
a. Standards-Based Approach. The Navy has a compelling governmental interest in mission
accomplishment at the individual, unit and organizational levels, including such necessary
elements of mission accomplishment as military readiness, unit cohesion, good order, discipline,
health and safety. The military is a specialized community within the United States, governed by
a discipline separate from the rest of society. All Navy personnel must expeditiously review and
act on requests for religious accommodations. Many religious practices do not require an
exception to Navy policy and can be accommodated at the command level. The term “religious
practice” includes any exercise of religion, whether or not compelled by, or central to, a system
of religious belief.
App.034
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(1) Each request for religious accommodation must be reviewed on a case-by-case basis,
giving consideration to the full range of facts and circumstances relevant to the specific request.
Requests to accommodate religious practices should not be approved or denied simply because
similar requests were approved or denied. The following factors should be considered:
(a) applicable operational or regional policies,
(b) importance of the military policy, practice or duty in terms of mission
accomplishment, including military readiness, unit cohesion, good order, discipline, health, or
safety,
(c) importance of the practice to the requestor,
(d) cumulative impact of repeated accommodations of a similar nature and
(e) alternate means to fulfill the request.
(2) To comply with the intent of section 2000bb-1 of Title 42, U.S. Code, commanders
and their staffs should remain objective in considering requests to accommodate religious
practices. Commanders will not deny or recommend denial of a religious accommodation unless
the denial or partial denial furthers a compelling governmental interest and is the least restrictive
means of furthering that compelling government interest. 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.
Factors to consider include (but are not limited to) whether approving the accommodation
would:
(a) pose a health or safety hazard (such as flammable materials or loose clothing that
could become caught in a piece of equipment),
(b) interfere with the wear or proper function of special or protective clothing or
equipment (such as a respirator, protective helmet or communication gear) or
(c) otherwise impair mission accomplishment, good order, discipline, morale or unit
cohesion.
(3) Sometimes it is necessary for commanders to recommend an alternative manner by
which the religious requirement may be met. For example, there may be options and resources
not known to the member at the time of his or her request that might be known to the
commander. Those alternatives should be discussed and offered to the member to determine if
they might satisfy some or all of the member’s religious requirement. Where appropriate, the
chaplain memorandum may discuss alternative means available to address the requested
accommodation.
App.035
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(4) Religious practices and corresponding approval authorities are listed in Table 1.
Many religious practices, such as (but not limited to) religious observances and dietary practices
do not need a request for waiver of policy and can be accommodated at the command level.
Other religious accommodations may be approved by the first O-6 in the chain of command,
whether the requestor’s CO or Immediate Superior in Command (ISIC). Per reference (a),
exceptions to Table 1 are not permitted without CNO N1 approval.
Type of Religious Practice
Authority
Religious observances per subparagraph
5d(1)
CO
Dietary practices per subparagraph 5d(2)
CO
Neat, conservative head covering in line with
subparagraph 5d(4)(a), which requires
waiver of uniform regulation provisions in
reference (c)
Approvals authorized at O-6 CO/
ISIC level. O-6 CO/ISIC send
recommendation for disapproval
directly to CNO N1
Unshorn hair on men in line with
subparagraph 5d(4)(b), which requires
waiver of uniform regulation provisions in
reference (c)
O6 CO/ISIC send recommendation
directly to CNO N1
Beard, which requires waiver of requirement
for male Sailors to be clean shaven found in
reference (c), in line with subparagraph
5d(4)(c)
O6 CO/ISIC send recommendation
directly to CNO N1
Uniform, grooming or religious apparel
waivers not authorized at the CO or O-6
CO/ISIC level in line with reference (c)
O-6 CO/ISIC send recommendation
directly to CNO N1
Immunizations per subparagraph 5d(3)
O-6 CO/ISIC send recommendation
directly to CNO N1
All other types of religious practices that
require a waiver of Navy policy to support
O-6 CO/ISIC send recommendation
directly to CNO N1
Table 1. Authorities and Religious Practices
Note 1: Pre-accession authority examples are listed below in subparagraph 5b.
App.036
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b. Accessions
(1) Navy accession sources, Navy Recruiting Command, Naval Service Training
Command, USNA and U.S. Navy Bureau of Medicine and Surgery (BUMED), are the
designated chains of command for pre-accession requests in line with Table 2. Accession source
headquarters are responsible for ensuring active and reserve enlisted and officer accessions are
informed of uniform and grooming standards and policies, as well as procedures for seeking
religious accommodations. Accession source headquarters must document this opportunity in
writing and ensure all accession requests for religious accommodation are adjudicated prior to
entering service. The following language should be used to document the applicant
understanding of the Navy’s religious accommodation policy:
“I understand that Department of the Navy policy is to accommodate religious
practices whenever possible, unless doing so would have an adverse impact on
mission accomplishment, including military readiness, unit cohesion, good order,
discipline or health and safety.
I understand accommodation of my religious practices cannot be guaranteed at
all times. I understand that determination of military necessity rests entirely with
my Navy chain of command, and that I will be expected to comply with the
Navy’s policy, practice or duty from which I am requesting accommodation
unless and until approved by the designated authority.
I do NOT desire to request support for specific religious practices at this time
__________________________
(Applicant Signature)
I DO desire to request support for the following religious practice(s):
______________________________________
(Type of Request)
__________________________
(Applicant Signature)
Applicants requesting religious accommodation may not enlist or commission
until they receive a final response in writing. Accession commands must
immediately process the request in line with BUPERSINST 1730.11A
(Standards and Procedures Governing the Accommodation of Religious
Practices).
(Typed or Printed Name and Signature of Witnessing Recruiting
Representative)”
App.037
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(2) Additionally, prospective accessions must be given the opportunity to route a
religious accommodation request prior to departure for a Military Entrance Processing Station.
Many pre-accession religious practices such as (but not limited to) religious observances and
dietary practices do not need a request for waiver of policy and can be accommodated at the
command level. Certain requests for religious accommodation may be approved by local
commanders as listed in Table 2, below. Per reference (a), exceptions to this table are not
permitted without CNO N1 approval.
Type of Religious Practice
Process
Notes
Religious observances
Route to RTC/OTCN CO for
approval
RTC/OTCN CO send
recommendation for
disapproval directly to CNO
N1
Dietary practices
Route to RTC/OTCN CO for
approval
RTC/OTCN CO send
recommendation for
disapproval directly to CNO
N1
Religious head covering
during RTC/OTCN
RTC/OTCN CO may approve
religious head covering
during religious
ceremonies/services only
If religious head covering
during religious
ceremonies/services only is
not acceptable by applicant,
then send to CNO N1
Unshorn hair on men in line
with subparagraph 5d(4)(b),
which requires waiver of
uniform regulation provisions
in reference (c)
RTC/OTCN CO send
recommendation directly to
CNO N1
Any request for beards during
RTC/OTCN
RTC/OTCN CO send
recommendation directly to
CNO N1
Uniform, grooming or
religious apparel
accommodation that do not
require waiver of DON policy
Route to RTC/OTCN CO for
approval
Disapproval
recommendations must be
routed to CNO N1
Immunizations
RTC/OTCN CO may approve
use of any available
alternative vaccinations
If no alternative vaccines are
available, then send
recommendation directly to
CNO N1
All other requests that require
a waiver of Navy policy
Route to CNO N1
App.038
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Table 2. Authorities and Religious Practices for Pre-Accession and Recruit Training
c. Timelines. For waivers of policy requiring adjudication at the commander or O-6
CO/ISIC level, final review and written notification to the requestor will be completed no later
than 7 days from the date the requestor submitted the request to his or her immediate
commander. Extensions for good cause may be granted by the Director, Military Personnel,
Plans and Policy (OPNAV N13). Examples of good cause for an extension include operational
necessity or lack of immediate access to a judge advocate or chaplain. All religious
accommodation cases forwarded from an O-6 CO/ISIC or RTC/OTCN to CNO N1 for
adjudication must be forwarded within 7 days from the date the requestor submitted the request
to his/her immediate commander, and will be expeditiously adjudicated in line with references
(a) and (b). To ensure timely and consistent adjudication of all requests, active and reserve
Sailors will not submit a request for a religious accommodation that would require a waiver of
Navy policy if they are expected to execute permanent change of station orders within 90 days.
Written notification should be given to the requestor within 5 days upon any decision,
modification, suspension or revocation of a waiver of policy.
d. Religious Practice Type
(1) Observances of Worship and Holy Days. Worship practices, holy days and Sabbath
or similar religious observance requests will be accommodated except by necessity, consistent
with mission accomplishment, U.S. Navy Regulations, and Navy Military Personnel Manual
(MILPERSMAN) article 1731-010. These requests do not normally require a waiver of policy.
(2) Dietary Practices. Commanders should support religious dietary observances to the
fullest extent possible. Commanders normally support religious dietary observances through a
standard core menu that supports many religious dietary requirements or by issuing Meals Ready
to Eat, Religious. In certain circumstances, commanders may consider other alternative
solutions.
(3) Immunizations. The Navy requires immunizations for all Sailors, based on its
compelling interest in mission accomplishment, including military readiness, unit cohesion, good
order, discipline, health and safety. Local commanders should make a reasonable effort to
acquire alternative vaccinations, when available, that meet both religious needs of Sailors and the
Navy’s immunization requirements as determined by BUMED. Refer to MILPERSMAN 1730-
020 as needed. Medical waivers of immunization requirements not associated with religious
belief will continue to be adjudicated by the health care provider as addressed in reference (d).
(4) Uniform and Grooming. Pursuant to subparagraph 5a above, to determine whether a
religious accommodation might interfere with the accomplishment of the unit or individual
mission(s), a commander should consider such factors as the safe and effective operation of
weapons, work center equipment and machinery, as well as wear of protective clothing or
equipment. Commanders should also state in the endorsement or approval how the religious
accommodation may need to be modified in operational, non-operational or training
environments.
App.039
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(a) Head Coverings. As delineated in Table 1, religious accommodations for Sailors
on all duty types to wear neat and conservative religious head coverings such as (but not limited
to) a hijab, turban, kufi, kippah or yarmulke may be authorized at the O-6 CO/ISIC level based
upon the operational environment and in line with reference (c). Except in the case of safety or
protective headgear required by a Sailor’s duties, position or assignment, Sailors granted a
religious accommodation for head coverings are not required to wear military headgear in
addition to their religious head covering if such military headgear would violate their sincerely
held religious beliefs.
(b) Unshorn/Long Hair. As delineated in Table 1, waivers of Navy policy for male
Sailors on all duty types to wear unshorn/long hair must be sent to CNO N1 for decision.
(c) Beards. As delineated in Table 1, waivers of Navy policy for Sailors on all duty
types to wear a beard must be sent to CNO N1 for decision. Approved unshorn beards must be
worn in a neat and conservative manner. When a Sailor is authorized to wear a beard of greater
than 2 inches in length, the beard must be rolled, tied and/or otherwise groomed to achieve a
length not to exceed 2 inches when measured from the bottom of the chin.
(5) Deoxyribonucleic Acid (DNA) Specimen Sampling. Waiver requests from
participation in DNA specimen collection should be forwarded to CNO N1 for final adjudication.
BUMED will be consulted prior to final adjudication.
(6) Other Religious Accommodation Requests. All other religious accommodation
requests requiring a policy waiver not specified under this section will be routed to CNO N1 via
OPNAV N13 for adjudication.
e. Routing. For those requests that require a waiver of policy:
(1) A requestor seeking a waiver of Navy policy must submit a request in writing through
his or her commander using the template at enclosure (1). The requestor must state the waiver
sought and may elaborate on the sincerely-held religious beliefs or circumstances motivating the
request.
(2) Every requestor seeking religious accommodation requiring a waiver of Navy policy
must interview with a Navy chaplain. The chaplain will assess whether the requestor’s religious
beliefs appear sincerely-held, and will forward an evaluation to the commander using the
templates provided in enclosures (2) and (3).
(3) Commanders will take appropriate action on requests to stay within the timelines
in subparagraph 5(c). Requests forwarded by a commander to the O-6 CO/ISIC or to CNO N1
must include enclosures (1) through (4). There are no additional requirements.
(4) A copy of all waivers of uniform or grooming policy authorized at the O-6 CO/ISIC
level must be forwarded via e-mail to OPNAV N13 for record keeping purposes at
App.040
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ALTN_Navy_Religious_Accommodations@navy.mil. Requests forwarded from the O-6
CO/ISIC level to CNO N1 for adjudication must also be sent to that email address. Forwarding
waiver requests to OPNAV N13 via mail is highly discouraged and can potentially delay a
decision for a Sailor.
(5) For commands that do not have regular Navy/Marine Corps Intranet email accounts
(e.g., overseas, sea duty or joint commands), email OPNAV N13 at
ALTN_Navy_Religious_Accommodations@navy.mil first before sending attachments.
(6) If the request contains Personally Identifiable Information (PII), the request must be
labelled and encrypted appropriately.
(7) A requestor who reports directly to another U.S. military service must route religious
accommodation requests to the authority specified in the policies of that military service. Sailors
assigned to a Joint command will route requests to their respective Navy Element Commander
for approval or recommendation to CNO N1 as delineated in Table 1. In all circumstances
Sailors will adhere to the provisions set forth in subparagraph 4a.
(8) Questions from commands and requesters concerning religious accommodation
requests may be referred to ALTN_Navy_Religious_Accommodations@navy.mil.
f. Appeals
(1) Appeals of command-level adjudication will be forwarded to the commander’s O-6
CO/ISIC for adjudication. Appeals of O-6 CO/ISIC level adjudication will be forwarded to
CNO N1 for adjudication within 15 days from the date the requestor submits the appeal.
Appeals of CNO N1 adjudication will be forwarded to the Chief of Naval Operations (CNO) for
final adjudication, unless other direction is provided in reference (a) or (b).
(2) When a religious accommodation request is denied, the requestor may renew the
request upon a change in physical, operational or geographical environment, or at any time in
which there is a change to pertinent policy.
g. Approval Duration, Withdrawal and Suspension. Religious accommodations are subject
to review, suspension or revocation, in whole or in part, any time there is a change in the
circumstances upon which the initial religious accommodation was based (e.g., new duty
assignment, temporary duty or other material change in circumstances). However, an approved
religious accommodation remains in effect until the commander or future commander notifies
the Sailor or candidate in writing that a compelling government interest requires suspension or
revocation of the accommodation. The written notification must include the nature of the
changed circumstances and specify the reason for the revocation and the length of the
suspension.
App.041
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(1) The authority to temporarily suspend a previously approved religious accommodation
resides with the Sailor’s CO, while the authority to permanently revoke a previously approved
religious accommodation remains with CNO N1. A commander may suspend or initiate
revocation of an approved religious accommodation only upon a determination that a compelling
government interest requires such suspension or revocation and that no less restrictive means of
furthering that compelling government interest are available. The decision to suspend or initiate
revocation of an approved religious accommodation must be informed by the factors enumerated
in this instruction.
(2) A commander may require immediate compliance with suspension of a religious
accommodation only if necessary due to an imminent threat to health or safety. In any case in
which there is no imminent threat, the Sailor or candidate must be given five business days to
submit an appeal using the process described in subparagraph 5f(1). The religious
accommodation will remain in effect until the appeal process is completed. When necessary, a
Sailor may be assigned to temporary additional duty orders to protect him or her from
circumstances that are incompatible with the religious accommodation while the appeal is being
adjudicated.
(3) When there is a change in military duties or requirements, a commander may suspend
a previously approved religious accommodation if the suspension furthers a compelling
government interest and is the least restrictive means available to further that interest. For
example, a Sailor with a grooming waiver authorizing him to wear a beard may be required to
shave the beard to deploy to an area in which there is a high risk that the Sailor will have to don a
gasmask. When the conditions that required the suspension are no longer present, the Sailor may
resume the religious practice per the original waiver. There is no requirement for a Sailor to
resubmit a request for a religious accommodation that has been suspended.
6. Records Management
a. Records created as a result of this instruction, regardless of format or media, must be
maintained and dispositioned for the standard subject identification codes (SSIC) 1000 through
13000 series per the records disposition schedules located on the Department of the
Navy/Assistant for Administration (DON/AA), Directives and Records Management Division
(DRMD) portal page at https://portal.secnav.navy.mil/orgs/DUSNM/DONAA/DRM/Records-
and-Information-Management/Approved%20Record%20Schedules/Forms/AllItems.aspx.
b. For questions concerning the management of records related to this instruction or the
records disposition schedules, please contact your local records manager or the DON/AA DRMD
program office.
7. Review and Effective Date. Per OPNAVINST 5215.17A, OPNAV N13 will review this
instruction annually on the anniversary of its issuance date to ensure applicability, currency and
consistency with Federal, Department of Defense, SECNAV and Navy policy and statutory
authority using OPNAV 5215/40 Review of Instruction. This instruction will be in effect for 5
years unless revised or cancelled in the interim, and will be reissued by the 5-year anniversary
App.042
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date if it is still required, unless it meets one of the exceptions in OPNAVINST 5215.17A,
paragraph 9. Otherwise, if the instruction is no longer required, it will be processed for
cancellation following the guidance in OPNAV Manual 5215.1 of May 2016.
Releasability and distribution:
This instruction is cleared for public release and is available electronically only via
BUPERS/NAVPERSCOM Web site, https://www.public.navy.mil/bupers-
npc/reference/Pages/default.aspx
App.043
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Enclosure (1)
SAMPLE REQUEST FOR WAIVER OF POLICY TO ACCOMMODATE A RELIGIOUS
PRACTICE (TEMPLATE)
(Date)
From: Rate or rank, as applicable, full name, branch and type of service as applicable
To:
Appropriate authority per Table 1 or Table 2 (i.e., O-6 CO/ISIC or CNO N1)
Via:
Appropriate authority per Table 1 or Table 2 (i.e., CO, O-6 CO/ISIC)
Subj: REQUEST FOR WAIVER OF POLICY IN SUPPORT OF RELIGIOUS PRACTICE
Ref:
(a) DoD Instruction 1300.17 of 10 February 2009
(b) SECNAVINST 1730.8
(c) BUPERSINST 1730.11
(d) Other references as needed
Encl: (1) Photograph or graphic (as needed to show the neat and conservative color, manner of
wear, etc.)
(2) Optional enclosures (e.g., religious leader endorsement or research in applicable area)
1. Pursuant to references (a) through (c), I hereby request religious accommodation from Navy
policy (use reference as needed) to ___(describe the specific practice(s)) _____ due to my
religious belief that _____(paraphrase religious basis of the request)__.
2. My request is based on my religious belief that____________ (provide a detailed explanation
here as desired)_______ and reference enclosure (1) or (2) as needed/desired.
3. (Required statement) I certify that I understand that any approved or partially approved
waiver may not be appropriate for future duty to which I may be assigned, including operational,
non-operational or training command(s), and may be suspended or withdrawn in accordance with
reference (c).
________________________
(Signature)
App.044
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Enclosure (2)
CHAPLAIN INTERVIEW CHECKLIST TEMPLATE
Requestor:
Interview Date:
Name:
Chaplain Interviewer:
Phone:
Phone:
Email:
E-mail:
Command:
Chaplain’s Command:
Interview Preliminaries
Yes
No
N/A
Chaplain reviewed policy and doctrine on religious accommodation and the policy for
which the requestor is seeking accommodation.
Applicant was notified that the interview is not confidential and will be used to advise the
command.
Chaplain explained to the applicant that confidential support can be received from
another chaplain.
Applicant has been granted a waiver for this practice previously.
Applicant’s Page 2 (NAVPERS 1070/602) reflects the belief cited in the application.
Type of Waiver Requested
Yes
No
N/A
Uniform standards
Grooming standards
Immunization requirements
DNA sampling
Other (Please describe):
Interview
Yes
No
N/A
Requestor’s religious beliefs seemed honestly and sincerely held using one or more of the
following factors:
1. Requestor was credible (consistently keeps tenets, practices, etc.).
2. Requestor’s demeanor and pattern of conduct are consistent with the request.
3. Requestor participates in activities associated with the belief(s).
4. Other persons supporting the claim are credible.
5. Request is supported by letter(s) of verification or endorsement from an
organization espousing the beliefs which are the basis for the claim.
Alternate means of accommodating the practice were explored in the interview.
Process Checklist
Yes
No
N/A
Chaplain has prepared a memorandum documenting the interview.
Chaplain reviewed memorandum with applicant and provided a copy.
Chaplain submitted the memorandum and this document to the commanding officer via
chain of command.
Chaplain referred applicant to command to process request.
App.045
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Enclosure (3)
CHAPLAIN MEMORANDUM FOR THE RECORD (TEMPLATE)
From: [Chaplain’s rank and name], CHC, USN
To:
[Commanding Officer of requestor]
Subj: REQUEST FOR A WAIVER OF POLICY TO ACCOMMODATE PRACTICE
BASED ON RELIGIOUS BELIEF ICO [REQUESTOR’S RANK, NAME]
Ref:
(a) SECNAVINST 1730.8
(b) SECNAVINST 1730.9
1. (Requestor’s rank and name) has submitted a request for accommodation of a religious
practice per reference (a). Per BUPERSINST 1730.11A, I interviewed the requestor on (date). I
explained that this interview would not be a confidential communication as defined by reference
(b) and informed the requestor that referral for confidential chaplain support was available.
2. Nature of the request. (Provide a narrative summary of the request for religious
accommodation and whether or not the requestor has previously had this or any other related
request approved or denied)
3. Basis. (Identify the religious beliefs on which the accommodation request is based and
provide a professional and objective opinion regarding the religious importance of the request to
the member. Include the requestor’s religion as listed on NAVPERS 1070/602 (Page 2).
4. Alternate Means. (Indicate alternate means of meeting the request)
5. Sincerity. (Assess the sincerity of the requestor. The memorandum should focus on the
sincerity of the member’s personal religious beliefs, including the information provided during
the interview.)
6. My contact information is (telephone number and e-mail address).
[Signature]
Copy to:
(Rank and name of requestor)
App.046
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Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 49 of 83 PageID 3805
BUPERSINST 1730.11A
XX Mar 2020
Enclosure (4)
RELIGIOUS ACCOMMODATION APPROVAL OR ENDORSEMENT (TEMPLATE)
(Date)
From: Appropriate authority per Table 1 or Table 2
To:
Appropriate authority per Table 1 or Table 2
Via:
As applicable with appropriate authority per Table 1 or Table 2
Subj: APPROVAL (or) APPROVAL/DISAPPROVAL RECOMMENDATION ICO (INSERT
NAME HERE) RELIGIOUS ACCOMMODATION
Ref:
(a) DoD Instruction 1300.17
(b) SECNAVINST 1730.8
(c) BUPERSINST 1730.11A
(d) Other references as needed including regional or operational policy
Encl: (1) Sailor/accession request of DD MMM YY
(2) Chaplain Memorandum and Interview Checklist
(3) Other enclosures as needed (e.g., operational or regional policy)
1. Per references (a) through (c)/(d), I am approving this request or I am forwarding this request
recommending approval/disapproval in full or in part during the following environments (as
applicable to the command):
a. Operational recommendation:
b. Non-operational recommendation:
c. Training environment recommendation:
2. The following information was considered or is provided for consideration as applicable
(articulate the factual basis underlying any compelling government interest and why the denial or
partial denial is the least restrictive means available to protect the compelling government
interest over the individual request):
a. The importance of the military policy, practice or duty from which religious
accommodation is sought in terms of mission accomplishment, including:
(1) Military readiness:
(2) Unit cohesion:
(3) Good order and discipline:
(4) Health and safety:
App.047
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 50 of 83 PageID 3806
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 50 of 83 PageID 3806
BUPERSINST 1730.11A
XX Mar 2020
2
Enclosure (4)
b. The religious importance of the practice to the requestor.
c. The cumulative impact of repeated accommodations of religious practices of a similar
nature.
d. Alternate means available to accommodate the practice in whole or in part.
3. Other pertinent issues or information associated with this request.
4. My point of contact (POC) for this matter is ____________ (insert POC here) who can be
reached at ____________(insert e-mail and telephone number here).
5. This approval/recommendation will be emailed to OPNAV N131 for review/decision within
the timelines in reference (c). Otherwise, Commander should provide the timeline/waiver of
timeline here as applicable.
________________________
(Signature)
Copy to:
OPNAV N131
Operational Commander(s),
Requestor, etc.
App.048
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 51 of 83 PageID 3807
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 51 of 83 PageID 3807
Katson Declaration
Exhibit B
App.049
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 52 of 83 PageID 3808
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 52 of 83 PageID 3808
1730-020
CH-72, 15 Aug 2020
Page 1 of 4
MILPERSMAN 1730-020
IMMUNIZATION EXEMPTIONS FOR RELIGIOUS BELIEFS
Responsible
Office
OPNAV
(N131)
Phone: DSN
COM
664-5015
(703) 604-5015
MyNavy Career Center
Phone: Toll Free
E-mail:
MyNavy Portal:
1-833-330-MNCC (6622)
askmncc@navy.mil
https://my.navy.mil/
________________________________________________________________
References
(a) DoD Instruction 1300.17 of 10 February 2009
(b) BUPERSINST 1730.11A
(c) BUMEDINST 6230.15B
(d) SECNAVINST 1730.9A
(e) SECNAVINST 1920.6D
1. Policy. The Navy requires immunizations for all Sailors,
based on its compelling interest in the health and safety of the
military workforce. Pursuant to references (a) and (b),
religious exemptions of immunization requirements will include
the justification and endorsements in paragraphs 4 and 5 of this
article prior to routing to the Chief of Naval Personnel
(CHNAVPERS) for decision. Non-religious medical waivers of
immunization requirements will be adjudicated by the health care
provider as addressed in reference (c).
2. Authority. Authority to grant medical waivers of
immunization requirements is vested at the Bureau of Medicine
and Surgery (BUMED). Authority to grant religious exemptions of
immunization requirements is vested with CHNAVPERS.
3. Application Procedure. Service members requesting
religious exemption of immunization requirements will forward
their requests to CHNAVPERS via their commanding officers (CO)
or immediate superiors in command. Submission guidance for
commands is provided in reference (b).
4. Contents of Service Member’s Request. The request will
include the following information:
a. Full name and grade,
App.050
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 53 of 83 PageID 3809
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 53 of 83 PageID 3809
1730-020
CH-72, 15 Aug 2020
Page 2 of 4
b. Immunization(s) exemption requested and the reason why
the exemption is needed, and
c. The following signed NAVPERS 1070/613 Administrative
Remarks, using the following format:
“I request a waiver of the (state the type) immunization. I hereby
state that my request is based upon (religious objection to
immunization or other reasons specifically described). I acknowledge
having received the following counseling:
1. Failure to obtain immunization poses additional risk to my health
upon exposure to disease.
2. In the event of foreign travel, I may be detained during travel
across foreign borders due to international health regulations.
3. If granted, a waiver may be revoked by my commanding officer if I
am at imminent risk of disease or due to international health
regulations.
4. If my job duties change, I may need to route a new request.
5. If I am at my permanent change of station while my waiver is in
effect, I may need to route a new request if my job duties change, my
geographic region exposes me to the aforementioned disease, or other
factors exist that could put me at imminent risk of disease.
Service Member’s Signature
Witnessed:
5. Content of Commander’s Endorsement. In line with reference
(b), COs must endorse every request for religious accommodation
through waiver of immunization requirements. The content of the
endorsement must include:
a. An endorsement from a military chaplain in line with
reference (d),
b. A recommendation to approve or disapprove the request,
c. Relevant information concerning the applicable
operational or regional policies,
App.051
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 54 of 83 PageID 3810
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 54 of 83 PageID 3810
1730-020
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Page 3 of 4
d. Negative effect (if any) on mission accomplishment
(i.e., military readiness, unit cohesion, good order,
discipline, health, and safety),
e. The number of Service members in the command that have
been granted a similar exemption for non-religious purposes, and
f. When recommending denial of the request, a determination
that the denial furthers a compelling governmental interest
(such as those identified in subparagraph 5d above), and that
there is no less restrictive means of accommodating the request,
such as an available alternative vaccination that meets both the
religious need and the Navy’s immunization requirements as
determined by BUMED.
6. Applicant Counseling. COs will ensure applicants are
counseled concerning the following, in line with subparagraph 4c
above:
a. The additional risk to health on exposure to disease
against which the applicant will not be protected by a military
physician who informs Service member of diseases concerned, and
benefits and risks of vaccine;
b. The possibility that the applicant may be detained
during travel across international borders due to international
health regulations; and
c. The possibility that individuals granted such exemptions
may have their waivers revoked if they are at imminent risk of
disease (e.g., exposure to anthrax, measles, cholera, etc.) or
due to international health regulations.
7. Revocation of Waiver by CO. COs may, without prior
approval, revoke a Service member’s authorized immunization
waiver in the event of imminent risk of disease due to exposure
or as a result of international health regulations incident to
foreign travel. If a Service member’s immunization waiver is
revoked, such action must be reported to CHNAVPERS and BUMED
Public Health and Safety Division (M44) by message as soon as
possible.
8. Administrative and Disciplinary Actions
a. In line with reference (a), Service members submitting
requests for religious accommodations will comply with the
App.052
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 55 of 83 PageID 3811
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 55 of 83 PageID 3811
1730-020
CH-72, 15 Aug 2020
Page 4 of 4
policy, practice, or duty from which they are requesting
accommodation, unless or until the request is approved.
b. Service members whose waivers have been disapproved, or
those who refuse to take immunizations without approved waivers,
may be subject to administrative and or disciplinary actions, as
deemed appropriate by COs, for violation of a lawful order.
c. Actions include:
(1) Formal counseling and warning recorded on NAVPERS
1070/613,
(2) Nonjudicial punishment,
(3) Court-martial, or
(4) Processing for administrative separation.
d. See MILPERSMAN 1910-120, 1910-142, 1910-164, and 1910-
402 for guidance on enlisted separations. See reference (d) for
officer separations.
App.053
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 56 of 83 PageID 3812
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 56 of 83 PageID 3812
Exhibit 4
App.054
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 57 of 83 PageID 3813
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 57 of 83 PageID 3813
1
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
NAVY SEAL #1, et al.
Plaintiffs,
v.
JOSEPH R. BIDEN, in his official capacity as
President of the United States, et al.
Defendants.
Case No. 8:21-cv-02429-SDM-TGW
DECLARATION OF CAPTAIN MERY-ANGELA SANABRIA KATSON, U.S. NAVY
I, Captain Mery-Angela Sanabria Katson, U.S. Navy, hereby state and declare as follows:
1.
I am a captain in the United States Navy, currently serving as the Branch Head,
Enlisted Plans and Policy (OPNAV N132), located in Arlington, Virginia. I make this
declaration in my official capacity, based upon my personal knowledge and upon information
that has been provided to me in the course of my official duties.
2.
Subject to the data limitations and important context provided in my previous
declaration, the attached exhibit reflects the data available as of February 3, 2022.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true
and correct. Executed this 3rd day of February, 2022.
Mery-Angela Sanabria Katson
Captain, U.S. Navy
App.055
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 58 of 83 PageID 3814
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 58 of 83 PageID 3814
App.056
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 59 of 83 PageID 3815
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 59 of 83 PageID 3815
Exhibit 5
App.057
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 60 of 83 PageID 3816
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 60 of 83 PageID 3816
DOD INSTRUCTION 1332.45
RETENTION DETERMINATIONS FOR NON-DEPLOYABLE
SERVICE MEMBERS
Originating Component:
Office of the Under Secretary of Defense for Personnel and Readiness
Effective:
July 30, 2018
Change 1 Effective:
April 27, 2021
Releasability:
Cleared for public release. Available on the Directives Division Website
at https://www.esd.whs.mil/DD/.
Incorporates and Cancels: Office of the Under Secretary of Defense for Personnel and Readiness
Memorandum, “DoD Retention Policy for Non-Deployable Service
Members,” February 14, 2018
Approved by:
Robert L. Wilkie, Under Secretary of Defense for Personnel and
Readiness
Change 1 Approved by:
Virginia S. Penrod, Acting Under Secretary of Defense for Personnel and
Readiness
Purpose: In accordance with the authority in DoD Directive 5124.02, this issuance:
• Establishes policy, assigns responsibilities, and provides direction for retention determinations for
non-deployable Service members.
• Provides guidance and instructions for reporting deployability data for the Total Force.
App.058
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 61 of 83 PageID 3817
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 61 of 83 PageID 3817
DoDI 1332.45, July 30, 2018
Change 1, April 27, 2021
TABLE OF CONTENTS
2
TABLE OF CONTENTS
SECTION 1: GENERAL ISSUANCE INFORMATION .............................................................................. 4
1.1. Applicability. .................................................................................................................... 4
1.2. Policy. ............................................................................................................................... 4
1.3. Information Collections. ................................................................................................... 4
1.4. Summary of Change 1. ..................................................................................................... 4
SECTION 2: RESPONSIBILITIES ......................................................................................................... 6
2.1. Under Secretary of Defense for Personnel and Readiness (USD(P&R)). ........................ 6
2.2. Assistant Secretary of Defense for Manpower and Reserve Affairs (ASD(M&RA)). ..... 6
2.3. Assistant Secretary of Defense for Health Affairs. ........................................................... 6
2.4. Secretaries of the Military Departments. .......................................................................... 6
SECTION 3: PROCEDURES ................................................................................................................ 8
3.1. Tracking. ........................................................................................................................... 8
3.2. Reporting........................................................................................................................... 8
3.3. Deployable with Limitations............................................................................................. 9
3.4. Training and Transient. ..................................................................................................... 9
a. Initial Entry Training...................................................................................................... 9
b. Cadets and Midshipman. .............................................................................................. 10
c. All Other Training. ....................................................................................................... 10
d. Transient. ..................................................................................................................... 10
3.5. Temporary Non-Deployable Categories. ........................................................................ 10
a. Medical. ........................................................................................................................ 10
b. Legal. ........................................................................................................................... 11
c. Administrative. ............................................................................................................. 11
3.6. Permanent Non-Deployable Categories. ......................................................................... 13
a. Medical. ........................................................................................................................ 13
b. Administrative.............................................................................................................. 13
c. Approved for Retention................................................................................................ 14
3.7. IMR Deficits. .................................................................................................................. 14
a. Overdue PHA. .............................................................................................................. 14
b. Dental Readiness (Dental Class 3). .............................................................................. 14
c. Overdue Dental Screening (Dental Class 4). ............................................................... 14
d. Additional IMR Categories. ......................................................................................... 15
3.8. Prioritization of Service Members by Category. ............................................................ 15
a. Deployed. ..................................................................................................................... 15
b. Deployable with Limitations........................................................................................ 15
c. Approved for Retention................................................................................................ 15
d. Permanent Non-Deployable. ........................................................................................ 15
e. Training and Transient. ................................................................................................ 16
f. Temporary Non-Deployable. ........................................................................................ 16
g. IMR Deficits. ............................................................................................................... 16
SECTION 4: RETENTION DETERMINATION ..................................................................................... 18
4.1. Retention Authority for Non-Deployable Service Members. ......................................... 18
App.059
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Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 62 of 83 PageID 3818
DoDI 1332.45, July 30, 2018
Change 1, April 27, 2021
TABLE OF CONTENTS
3
4.2. Retention Determination. ................................................................................................ 18
4.3. Special Categories. .......................................................................................................... 19
SECTION 5: AUTHORITIES FOR SEPARATIONS AND RETIREMENTS ................................................. 20
GLOSSARY ..................................................................................................................................... 21
G.1. Acronyms. ...................................................................................................................... 21
G.2. Definitions. ..................................................................................................................... 21
REFERENCES .................................................................................................................................. 23
App.060
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 63 of 83 PageID 3819
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 63 of 83 PageID 3819
DoDI 1332.45, July 30, 2018
Change 1, April 27, 2021
SECTION 1: GENERAL ISSUANCE INFORMATION
4
SECTION 1: GENERAL ISSUANCE INFORMATION
1.1. APPLICABILITY.
This issuance applies to OSD, the Military Departments, the Office of the Chairman of the Joint
Chiefs of Staff and the Joint Staff, the Combatant Commands, the Office of Inspector General of
the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other
organizational entities within the DoD (referred to collectively in this issuance as the “DoD
Components”).
1.2. POLICY.
It is DoD policy that:
a. To maximize the lethality and readiness of the joint force, all Service members are
expected to be deployable.
b. Service members who are considered non-deployable for more than 12 consecutive
months will be evaluated for:
(1) A retention determination by their respective Military Departments.
(2) As appropriate, referral into the Disability Evaluation System (DES) in accordance
with DoD Instruction (DoDI) 1332.18 or initiation of processing for administrative separation in
accordance with DoDI 1332.14 or DoDI 1332.30. This policy on retention determinations for
non-deployable Service members does not supersede the policies and processes concerning
referral to the DES or the initiation of administrative separation proceedings found in these
issuances.
c. Implementation for this policy is October 1, 2018.
1.3. INFORMATION COLLECTIONS.
The Monthly Non-deployable Report, referred to in Paragraph 3.2. of this issuance, has been
assigned report control symbol DD-P&R(M)2671 in accordance with the procedures in Volume
1 of DoD Manual 8910.01. The expiration date of this collection is listed in the DoD
Information Collections Website at https://www.esd.whs.mil/Directives/collections_int/.
1.4. SUMMARY OF CHANGE 1.
The changes to this issuance:
a. Reflect updates to reporting tracking procedures (Paragraph 3.1. of this issuance) and
timelines (Paragraph 3.2. of this issuance).
App.061
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 64 of 83 PageID 3820
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DoDI 1332.45, July 30, 2018
Change 1, April 27, 2021
SECTION 1: GENERAL ISSUANCE INFORMATION
5
b. Provide additional clarity for reporting temporary non-deployable categories (Paragraph
3.5. of this issuance) and individual medical readiness (IMR) deficits (Paragraph 3.7. of this
issuance).
c. Update the formatting according to new issuance template guidelines.
App.062
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 65 of 83 PageID 3821
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 65 of 83 PageID 3821
DoDI 1332.45, July 30, 2018
Change 1, April 27, 2021
SECTION 2: RESPONSIBILITIES
6
SECTION 2: RESPONSIBILITIES
2.1. UNDER SECRETARY OF DEFENSE FOR PERSONNEL AND READINESS
(USD(P&R)).
The USD(P&R) establishes and oversees policy on retention determinations for non-deployable
Service members.
2.2. ASSISTANT SECRETARY OF DEFENSE FOR MANPOWER AND RESERVE
AFFAIRS (ASD(M&RA)).
Under the authority, direction, and control of the USD(P&R), the ASD(M&RA):
a. Develops policy on the retention of non-deployable Service members.
b. Monitors the implementation of this guidance.
c. Tracks the number of non-deployable Service members and those non-deployable Service
members retained in military service and the justification for such retention, in accordance with
Section 3 of this issuance.
2.3. ASSISTANT SECRETARY OF DEFENSE FOR HEALTH AFFAIRS.
Under the authority, direction, and control of the USD(P&R), the Assistant Secretary of Defense
for Health Affairs:
a. Develops policy recommendations to the USD(P&R) for uniform retention medical
standards in coordination with the Secretaries of the Military Departments.
b. Provides oversight of related medical policies and programs.
2.4. SECRETARIES OF THE MILITARY DEPARTMENTS.
The Secretaries of the Military Departments:
a. Will:
(1) Determine the deployability status of Service members.
(2) Make retention determinations consistent with this issuance for Service members
who have been non-deployable for more than 12 consecutive months.
(3) Submit monthly reports identifying the number of non-deployable Service members
for all components within their Departments to the Office of the USD(P&R) in accordance with
Paragraph 3.2. of this issuance.
App.063
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 66 of 83 PageID 3822
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 66 of 83 PageID 3822
DoDI 1332.45, July 30, 2018
Change 1, April 27, 2021
SECTION 2: RESPONSIBILITIES
7
(4) Monitor compliance with requirements established in DoDI 6025.19 to ensure
required evaluations, assessments, and other medically related actions are accomplished to
improve individual and overall unit readiness.
b. May:
(1) Retain in service those Service members whose period of non-deployability exceeds
the 12 consecutive month limit in Paragraph 1.2. of this issuance if determined to be in the best
interest of the Military Service.
(2) Delegate the authority in Paragraph 2.4.(b)(1) of this issuance to retain in service
those Service members whose period of non-deployability exceeds the 12 consecutive month
limit. Such a delegation must be in writing, and may only be made to Presidentially Appointed,
Senate-Confirmed officials; Senior Executive Service members; or general/flag officers serving
at the Military Department or Service headquarters.
(3) Initiate administrative separation processing, or referral to the DES, as appropriate,
prior to a non-deployable Service member being in a non-deployable status for 12 months when
the Military Service determines there is a reasonable expectation that the reason will not be
resolved and the Service member will not become deployable.
App.064
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 67 of 83 PageID 3823
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 67 of 83 PageID 3823
DoDI 1332.45, July 30, 2018
Change 1, April 27, 2021
SECTION 3: PROCEDURES
8
SECTION 3: PROCEDURES
3.1. TRACKING.
a. The Military Departments will monitor and track the number of Service members by
Military Service that are:
(1) Non-deployable in accordance with the categories established in Paragraphs 3.5. and
3.6. of this issuance.
(2) Deployable with limitations in accordance with Paragraph 3.3. of this issuance.
(3) Deployable but have IMR deficits in accordance with Paragraph 3.7. of this issuance.
(4) In training or in a transient status in accordance with the category defined in
Paragraph 3.4. of this issuance.
b. To ensure accurate and consistent accounting across the DoD, Military Services will
account for Service members in only one category.
(1) If a Service member can be accounted for in more than one category, the Service
member will be counted only once and in the category with the highest priority listed in
accordance with Paragraph 3.8. of this issuance.
(2) This restriction does not apply to Service members who may also be counted as IMR
deficits in accordance with Paragraph 3.7. of this issuance. In addition to the categories listed in
Paragraphs 3.3. through 3.6. of this issuance, Service members with IMR deficits will also be
counted in accordance with Paragraph 3.8.g. of this issuance.
3.2. REPORTING.
a. The Secretaries of the Military Departments will report to the ASD(M&RA) the number
of non-deployable personnel (and other categories as provided in this section) for all Military
Services, and their respective components, on a monthly basis.
(1) The format for the Monthly Non-deployable Report can be found at
https://prhome.defense.gov/M-RA/Inside-M-RA/MPP/OEPM/.
(2) Reports are due no later than the 20th of each month with data current as of the last
day of the previous month. For example, the May Non-deployable Report is due by June 20th
with non-deployable data as of May 31st. Reports will be accepted earlier if available.
b. The number of non-deployable Service members is reported by categories, either
temporary or permanent, and grouped into medical, legal, or administrative sub-categories. Each
sub-category is further broken down to account for the specific reasons or conditions that make a
Service member non-deployable.
App.065
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 68 of 83 PageID 3824
Case 4:21-cv-01236-O Document 121 Filed 02/15/22 Page 68 of 83 PageID 3824
DoDI 1332.45, July 30, 2018
Change 1, April 27, 2021
SECTION 3: PROCEDURES
9
c. The number of Service members who are deployable with limitations, in accordance with
Paragraph 3.3. of this issuance, will be categorized separately on the monthly report. Such
Service members are not to be counted in the non-deployable populations.
d. The number of Service members who require urgent or emergent dental treatment for
dental readiness (Dental Class 3), are overdue for annual dental screening (Dental Class 4), or
are overdue for a Periodic Health Assessment (PHA) are reported as IMR Deficits in accordance
with Paragraph 3.7. of this issuance. Such Service members are not counted in the non-
deployable populations.
e. The number of Service members who are in a training or transient status are reported in
one of the four categories listed in Paragraph 3.4. of this issuance.
3.3. DEPLOYABLE WITH LIMITATIONS.
Service members with a medical condition that requires additional medical screening, or
Combatant Command approval prior to deployment outside the continental United States, will be
categorized as Deployable with Limitations. This includes, but is not limited to, conditions
referred to in DoDI 6490.07.
3.4. TRAINING AND TRANSIENT.
The Training and Transient category provides a means to track the human resources necessary to
maintain a healthy force, within current end strength constraints. This category contains Service
members who are not immediately ready for deployment and fall into one of the following four
categories:
a. Initial Entry Training.
These Service members are:
(1) Enlisted Service members at recruit training, initial skill training, and other
proficiency or developmental training accomplished before moving to the member’s first
permanent duty assignment. This includes all in-transit time commencing upon entry into active
service, through completion of the final course of initial entry training that terminates enlisted
trainee status.
(2) Enlisted trainees who enter officer candidate school, officer training school, and
Service academy preparatory school following enlistment on active duty. These members will
be considered:
(a) Enlisted trainees from initial entry on active duty until commissioning.
(b) Upon commissioning, officer accession students and will remain in the initial
entry training category for any subsequent initial entry training, or until they begin travel to their
first permanent duty assignment.
App.066
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SECTION 3: PROCEDURES
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(3) Officers at officer basic courses, and all initial skill and proficiency training taken
before travel to the Service member’s first permanent duty assignment. This includes all in-
transit time from entry on active duty until completion of the last initial entry course of
instruction.
(4) Reserve Component (RC) Service members (enlisted and officer) who enter the
Ready Reserve and are awaiting initial entry training.
b. Cadets and Midshipman.
These are individuals currently attending the U.S. Military Academy, the U.S. Air Force
Academy, or the U.S. Naval Academy. In accordance with Section 115 of Title 10, United
States Code (U.S.C.), cadets and midshipman are counted in the active duty end strength for their
respective Service, but by policy are non-deployable while attending school.
c. All Other Training.
These are Service members who are attending training that is 20 weeks or more in length,
and is conducted after their initial entry training. Examples include Command and Staff
Colleges, Senior Service College, the United States Army Sergeants Major Academy, medical
residencies, and all other post-graduate professional education opportunities.
d. Transient.
These are Service members who are not available for duty while executing permanent change
of station orders at the time of the report. This category does not include military personnel who
are:
(1) On temporary duty for training between permanent duty stations, or;
(2) Moving between entry-level courses of instruction, specifically Service members
who have departed from one duty station and are in transit but have not yet reported for duty at
the next permanent duty station.
3.5. TEMPORARY NON-DEPLOYABLE CATEGORIES.
a. Medical.
Service members are considered temporarily non-deployable for one of three reasons:
(1) Patient.
In accordance with DoDI 1120.11, Service members who are hospitalized and are
projected to heal, recover, and return to full duty in less than 12 months are temporarily non-
deployable.
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(2) Medical Condition That Limits Full Duty.
Service members who have temporary profiles or are in limited duty status are counted as
temporarily non-deployable. Light duty will not be reported as non-deployable unless the
duration exceeds 30 days, with discretion given to the medical officer to extend light duty status
for up to 60 days, making light duty no longer than 90 days for conditions expected to recover or
stabilize within that time. Service members who are considered to be classified as light duty are
considered deployable and expected to be able to deploy, at the local commander’s discretion,
despite the medical condition causing their light duty status.
(3) Pregnancy (including post-partum).
Service members who are pregnant or in the post-partum phase are temporarily non-
deployable. The post-partum phase ranges from 6 to 12 months after childbirth for female
Service members and is determined by individual Service policy.
b. Legal.
Service members are considered temporarily non-deployable for one of two reasons:
(1) Prisoner.
Service members convicted by civilian or military authorities and sentenced to
confinement of more than 30 days, but for 6 months or less, are temporarily non-deployable.
Service members confined for more than 6 months are not included in end strength numbers and
will not be included in the monthly non-deployability report.
(2) Legal Action.
Service members who are under arrest, confined 30 days or less, pending military or civil
court action, under investigation, a material witness, on commander directed hold, pending non-
judicial punishment action under Section 815 of Title 10, U.S.C., also known as Article 15 of the
Uniformed Code of Military Justice (UCMJ), or pending discharge based on action under the
UCMJ are temporarily non-deployable.
c. Administrative.
These Service members are considered temporarily non-deployable for one of eight reasons:
(1) Absent Without Leave or Unauthorized Absence.
Service members who are absent without leave, as defined in Section 886 of Title 10,
U.S.C., also known as Article 86 of the UCMJ, will be considered as temporarily non-
deployable.
App.068
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(2) Family Care Plan.
In accordance with DoDI 1342.19, Service members required but failing to have a family
care plan in place are temporarily non-deployable.
(3) Adoption.
Service members who are single parents or one member of a dual military couple and are
adopting a child are temporarily non-deployable. They are non-deployable for at least 6 months
after the child is placed in the home, or longer dependent on the administrative stabilization
period prescribed by the jurisdiction in which the adoption occurred.
(4) Service Member Under 18.
Service members who are not yet 18 years of age are temporarily non-deployable. The
Child Soldier Prevention Act of 2007 prohibits Service members under the age of 18 from taking
part in hostilities as a member of governmental armed forces.
(5) Humanitarian Assignment.
Service members assigned to a location to provide support to a family member are
temporarily non-deployable. These Service members typically receive 12 to 24 months
stabilization by Military Service policy.
(6) Service Discretion.
Military Services may designate Service members temporarily non-deployable when the
previous categories do not apply. Examples include:
(a) Simultaneous Membership Program or Officer Candidate School.
(b) Education stabilization; mobilization deferral for affiliation after release from
Active Component.
(7) Pending Administrative Separation.
Service members being processed for administrative separation are temporarily non-
deployable.
(8) Unsatisfactory Participants or Administrative Action Pending (RC Only).
Service members who are determined to be unsatisfactory participants (defined in DoDI
1215.13 as a Service member that has nine unexcused absences within a 12-month period or fail
to perform prescribed periods of active duty for training), are considered temporarily non-
deployable, after the 90 day recovery period has elapsed. The Military Services will have no
more than 90 days to recover the unsatisfactory participant before the unsatisfactory participant
is counted as temporarily non-deployable. The Military Services will determine when an RC
App.069
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13
Service member who was classified as an unsatisfactory participant is considered recovered, and
no longer counted as non-deployable.
3.6. PERMANENT NON-DEPLOYABLE CATEGORIES.
a. Medical.
Service members are considered non-deployable for one of three reasons listed below.
(1) Permanent Limited Duty.
Service members with a medical condition that permanently prevents deployment are
non-deployable. This includes Service members processed through the DES who are not
deployable and were retained in the Military Service. In accordance with Section 1214a of Title
10, U.S.C., Service members cannot be involuntarily administratively separated or denied
reenlistment due to unsuitability based solely on the medical condition considered in the
evaluation unless the request to separate the Service member is approved by the Secretary of
Defense. The Military Service may direct the Service member to reenter the DES process to be
reconsidered for retirement or separation for disability.
(2) Enrolled in DES.
In accordance with DoDI 1332.18, Service members currently enrolled in the DES
process are non-deployable. That includes those pending separation or retirement after receiving
a “not fit for duty” determination through the DES.
(3) Permanent Profile Non-duty Related Action Needed (RC).
Those RC Service members who have a permanent profile and are pending a decision on
a line of duty determination are non-deployable.
b. Administrative.
These Service members are considered non-deployable for one of three reasons:
(1) Sole Survivor, Surviving Family Member, or Deferred from Hostile Fire Zone.
Service members who acquired the status in accordance with DoDI 1315.15 are non-
deployable.
(2) Unable to Carry a Firearm.
Service members who are subject to the provisions of Section 922 of Title 18, U.S.C. are
non-deployable.
App.070
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(3) Conscientious Objector.
Service members who are granted restriction of military duties in accordance with DoDI
1300.06 are non-deployable.
c. Approved for Retention.
This category accounts for Service members who are retained by the Military Department
despite being in a non-deployable status for 12 months or longer. Service members who the
Military Departments retained in Service and are considered non-deployable for one of two
reasons:
(1) Combat Wounded.
These are Service members whose injuries were the result of hostile action, meet the
criteria for awarding of the Purple Heart, and whose injuries were not the result of their own
misconduct.
(2) Other.
These are Service members who are not designated as combat wounded but are non-
deployable and retained in the Military Service by the Secretary of the Military Department in
accordance with Paragraph 2.4. of this issuance.
3.7. IMR DEFICITS.
These IMR categories are not considered non-deployable conditions. While Service members
who do not have a current PHA (completed) or whose dental readiness assessment is classified
as either Dental Class 3 or Dental Class 4 are not medically ready to deploy, they will not be
reported in the non-deployable population. Components are expected to immediately correct all
IMR deficits to ensure Service members are medically ready to deploy.
a. Overdue PHA.
These Service members are not compliant with the requirement to complete a PHA in
accordance with DoDI 6025.19.
b. Dental Readiness (Dental Class 3).
Service members who require urgent or emergent dental treatment.
c. Overdue Dental Screening (Dental Class 4).
Service members who are not compliant with the requirement to complete a dental screening
in accordance with DoDI 6025.19.
App.071
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d. Additional IMR Categories.
In addition to dental categories (Dental Classes 3 and 4) and PHAs, the Military Departments
track three additional areas of IMR: immunization status, medical readiness and laboratory
studies, and individual medical equipment. In accordance with DoDI 6025.19, Service members
who are not current in these areas are considered partially-medically ready.
3.8. PRIORITIZATION OF SERVICE MEMBERS BY CATEGORY.
This paragraph sets the prioritization for the grouping of Service members into categories to
provide consistent reporting among the Military Departments, in accordance with Paragraph
3.1.b. of this issuance. With the exception of Service members who may be accounted for in
IMR deficits, in accordance with Paragraph 3.1.b.(2) of this issuance, Service members will be
counted only once, in a single category; Service members who may fall into more than one
category will be reported in the priorities established in this paragraph. These categories are
listed below in descending order of priority.
a. Deployed.
This category includes Service members who are currently deployed. These Service
members will not be counted in any other category (including deployable with limitations or
approved for retention).
b. Deployable with Limitations.
c. Approved for Retention.
(1) Combat wounded – Non-deployable but retained.
(2) Other – Non-deployable but retained.
d. Permanent Non-Deployable.
(1) Medical permanent limited duty.
(2) Administrative.
(a) Sole survivor, surviving family member, or deferred from hostile fire zone.
(b) Unable to carry a firearm (e.g., Lautenberg Amendment).
(c) Conscientious objector.
(d) Ex-prisoner of war.
(3) Medical Enrolled in DES.
(4) Permanent profile non-duty related action needed (RC).
App.072
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16
e. Training and Transient.
(1) Initial entry training.
(2) Cadets or Midshipmen.
(3) All other training.
(4) Transient (permanent change of station).
f. Temporary Non-Deployable.
(1) Medical.
(a) Patient (assigned to “Individuals Account”).
(b) Medical condition that limits full duty.
(c) Pregnancy (including post-partum).
(2) Legal.
(a) Prisoner.
(b) Legal Action.
(3) Administrative.
(a) Absence without leave.
(b) Family Care Plan.
(c) Adoption.
(d) Service member under 18.
(e) Humanitarian assignment.
(f) Service Discretion.
(g) Pending Administrative Separation.
(h) Unsatisfactory participants or admin action pending (RC).
g. IMR Deficits.
Service members with IMR deficits may be counted as both overdue PHA and as either
Dental Class 3 or Dental Class 4.
(1) Overdue PHA.
App.073
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(2) Dental readiness (Dental Class 3).
(3) Overdue dental screening (Dental Class 4).
App.074
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DoDI 1332.45, July 30, 2018
Change 1, April 27, 2021
SECTION 4: RETENTION DETERMINATION
18
SECTION 4: RETENTION DETERMINATION
4.1. RETENTION AUTHORITY FOR NON-DEPLOYABLE SERVICE MEMBERS.
In accordance with Paragraph 2.4. of this issuance, the Secretaries of the Military Departments
have retention authority.
4.2. RETENTION DETERMINATION.
a. The Secretaries of the Military Departments may retain Service members who are non-
deployable in excess of 12 consecutive months, on a case-by-case basis, if determined to be in
the best interest of the Service, based on:
(1) The Service member’s ability to perform appropriate military duties commensurate
with his or her office, grade, rank, or skill.
(2) The likelihood that the Service member will resolve the condition or reason that is
the underlying cause of his or her non-deployable status.
b. The Secretaries of the Military Departments may approve retention for Service members
who are non-deployable in excess of 12 consecutive months for up to:
(1) The length of time remaining on a Service member’s enlistment contract; or
(2) Three years for officers, including warrant officers, and those enlisted members
serving on indefinite contracts.
(3) Upon expiration of the retention period, the Secretary of the Military Department
concerned may renew retention for a Service member on a case-by-case basis for periods stated
in this paragraph.
c. The Secretaries of the Military Departments may establish procedures for Service
members who are or will be non-deployable for 12 months or longer due to an administrative
reason to request retention consideration.
d. Approval of the retention for Service members who are non-deployable for 12 months or
longer will only be made for individual Service members, not an entire cohort or skill set of
Service members.
e. Except as required by DoDI 1332.18, the Secretaries of the Military Departments may
request from the Secretary of Defense the authority to automatically exempt Service members
serving in specified positions from the requirement for a retention determinations pursuant to
Paragraph 2.4.b.
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SECTION 4: RETENTION DETERMINATION
19
f. When appropriate, Service members not recommended for further retention will be
considered for processing for administrative separation in accordance with DoDI 1332.14 or
DoDI 1332.30, or referral for disability separation in accordance with DoDI 1332.18.
4.3. SPECIAL CATEGORIES.
a. Pregnant and post-partum Service members, as a group, are exempt from Paragraph 2.4.a.,
for pregnancy-related health conditions during pregnancy through the post-partum period.
b. The Secretaries of the Military Departments have the authority to retain combat wounded
Service members who have been evaluated through the DES and whose reason for non-
deployability is a direct result of their combat wounds, if requested by the Service member.
(1) Disapproval of retention for non-deployable combat wounded Service members, who
wish to be retained and whose reason for non-deployability is a direct result of their combat
wounds, may not be delegated.
(2) Retention will be authorized in accordance with Paragraph 4.2.b.
c. Unless found unfit for duty through the DES, Service members serving in specified
positions approved by the Secretary of Defense pursuant to Paragraph 4.2.e. are exempt from
requiring a retention determination based solely on being in a non-deployable status for
12 months or longer. Upon reassignment, these Service members will again require a retention
determination in accordance with Paragraph 4.2.a.
d. Unless sooner discharged or retired under another provision of law, or discharged due to
misconduct or sub-standard performance, the Secretaries of the Military Departments may retain
those Service members who are, or will be, non-deployable for 12 months or longer due to
administrative reasons and who have attained such years of creditable service so as to be within 3
years of qualifying for:
(1) Regular retirement (or in the case of enlisted members of the Navy or Marine Corps,
transfer to the Fleet Reserve or Fleet Marine Corps Reserve, as the case may be) pursuant to
Sections 3911, 3914, 6323, 6330, 8911, or 8914 of Title 10, U.S.C.; or
(2) Non-regular retirement (but for age) pursuant to Sections 12731 and 12735 of Title
10, U.S.C., if, in the case of RC members other than RC members within 3 years of qualifying
for regular retirement, they have attained at least 17 years of qualifying creditable service as
computed in accordance with Section 12732 of Title 10, U.S.C., and continue to attain qualifying
creditable service as computed under Section 12732 of Title 10, U.S.C. to become eligible for
non-regular retirement within the 3-year period.
App.076
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Change 1, April 27, 2021
SECTION 5: AUTHORITIES FOR SEPARATIONS AND RETIREMENTS
20
SECTION 5: AUTHORITIES FOR SEPARATIONS AND RETIREMENTS
5.1. In accordance with Paragraph 1.2. of this issuance, a Service member who has been non-
deployable for an administrative reason (not medical or legal) for more than 12 consecutive
months, will be processed for administrative separation in accordance with DoDI 1332.14 or
DoDI 1332.30. Military Services should ensure expeditious administrative separation
proceedings in accordance with Military Department and Military Service policies.
5.2. A Service member who has been non-deployable due to a physical disability that makes him
or her potentially unfit for the duties of his or her office, grade, rank, or rating for more than
12 consecutive months will be referred into the DES in accordance with DoDI 1332.18.
App.077
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GLOSSARY
21
GLOSSARY
G.1. ACRONYMS.
ACRONYM
MEANING
ASD(M&RA)
Assistant Secretary of Defense for Manpower and Reserve Affairs
DES
Disability Evaluation System
DoDI
DoD instruction
IMR
individual medical readiness
PHA
periodic health assessment
RC
Reserve Component
UCMJ
Uniformed Code of Military Justice
U.S.C.
United States Code
USD(P&R)
Under Secretary of Defense for Personnel and Readiness.
G.2. DEFINITIONS.
Unless otherwise noted, these terms and their definitions are for the purpose of this issuance.
TERM
DEFINITION
active duty
Defined in the DoD Dictionary of Military and Associated Terms.
active service
Defined in Section 101(d)(3) of Title 10, U.S.C.
active status
Defined in Section 101(d)(4) of Title 10, U.S.C.
combat wounded
Service members whose injuries were the result of hostile action,
who meet the criteria for awarding of the Purple Heart, and whose
injuries were not the result of their own misconduct.
deployable
A Service member who does not have a Service-determined reason
that precludes him or her from deployment.
App.078
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GLOSSARY
22
TERM
DEFINITION
deployment
The movement of personnel into and out of an operational area or in
support of operations. Deployment encompasses all activities from
origin or home station through destination, specifically including
inter-theater, and intra-theater movement legs, staging, and holding
areas.
Military
Departments
The Departments of the Army, Navy, and Air Force.
Military Service
Headquarters
Headquarters, United States Army; Headquarters, United States
Navy; Headquarters, United States Air Force; and Headquarters,
United States Marine Corps.
Military Services
The United States Army, the United States Navy, the United States
Air Force, the United States Space Force, and the United States
Marine Corps.
military specialty
A military occupational specialty in the Army and the Marine Corps;
an Air Force specialty code in the Air Force; or a rating or Navy
enlisted classification in the Navy.
non-deployable
A Service member who has a Service-determined reason that
precludes him or her from deployment.
permanently non-
deployable
A Service member who has a reason that precludes them from
deployment, and there is a Service expectation that the reason will
not be resolved and the Service member will never be deployable.
profile
A document used to communicate to commanders the individual
medical restrictions for Soldiers and Airmen.
Ready Reserve
Defined in the DoD Dictionary of Military and Associated Terms.
reason code
The term used to define non-deployable categories.
separation
A general term that includes discharge, release from active duty,
release from custody and control of the Military Services, transfer to
the Individual Ready Reserve, and similar changes in Active and
Reserve status.
temporarily non-
deployable
A Service member who has a reason or reasons that precludes him or
her from deployment, and there is a Service expectation that the
reason or reasons will be resolved and the Service member will be
deployable.
App.079
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REFERENCES
23
REFERENCES
DoD Directive 5124.02, “Under Secretary of Defense for Personnel and Readiness
(USD(P&R)),” June 23, 2008
DoD Instruction 1120.11, “Programming and Accounting for Active Component (AC) Military
Manpower,” March 17, 2015
DoD Instruction 1215.13, “Ready Reserve Member Participation Policy” May 5, 2015
DoD Instruction 1300.06, “Conscientious Objectors,” July 12, 2017
DoD Instruction 1315.15, “Special Separation Policies for Survivorship,” May 19, 2017
DoD Instruction 1332.14, “Enlisted Administrative Separations,” January 27, 2014, as amended
DoD Instruction 1332.18, “Disability Evaluation System (DES),” August 5, 2014, as amended
DoD Instruction 1332.30, “Commissioned Officer Administrative Separations,” May 11, 2018,
as amended
DoD Instruction 1342.19, “Family Care Plans,” May 7, 2010, as amended
DoD Instruction 6025.19, “Individual Medical Readiness (IMR),” June 9, 2014, as amended
DoD Instruction 6490.07. “Deployment-Limiting Medical Conditions for Service Members and
DoD Civilian Employees” February 5, 2010
DoD Manual 8910.01, Volume 1, “DoD Information Collections Manual: Procedures for DoD
Internal Information Collections,” June 30, 2014, as amended
Office of the Chairman of the Joint Chiefs of Staff, “DoD Dictionary of Military and Associated
Terms,” current edition
The Child Soldier Prevention Act of 2007, 110th Congress, S.1175
United States Code, Title 10
United States Code, Title 18
App.080
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