Full text
Exhibit 3
Case 5:22-cv-00009-TES Document 92-4 Filed 05/11/22 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
AIR FORCE OFFICER, et al.,
)
)
Plaintiffs,
)
)
v.
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No. 5:22-CV-00009
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LLOYD J. AUSTIN, III, et al.,
)
)
Defendants.
)
)
DECLARATION OF COLONEL JAMES A. RIGSBEE
I, James A. Rigsbee, hereby state and declare as follows:
1.
I am a Colonel in the United States Air Force currently assigned at Headquarters, Air
Force Reserve Command (AFRC) located at Robins Air Force Base, Georgia. I serve as the
Chief, Readiness and Integration Division within the HQ AFRC Directorate of Manpower,
Personnel, and Services. I have been in this position since August, 2019. As a part of my duties, I
am responsible for procedural guidance and advisory support leveraging military Human
Resource systems, data, and analytics in order to evaluate and execute command readiness and
personnel programs. Recently, I have assumed responsibility for leading the HQ AFRC
Operational Planning Team (OPT) related to the COVID-19 vaccine policy. As such, I oversee
implementation and tracking of the policy’s enforcement for the 70,000-member command.
2.
I am generally aware of the allegations set forth in the pleadings filed in this matter. I
make this declaration in my official capacity and based upon my personal knowledge and upon
information that has been provided to me in the course of my official duties. I know the identities
of Air Force Officer (the original, single Plaintiff in this case) and Air Force NCO. Air Force
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Officer is a Colonel in my Directorate in the Resilience and Development Division and Air Force
NCO is a Master Sergeant in the HQ AFRC Directorate for Logistics, Engineering, and Force
Protection. I can provide their names if required, consistent with the protective order in place in
this case. I am aware of the status of Air Force Officer’s and Air Force NCO’s religious
accommodation appeals and any subsequent actions taken.
3.
Air Force NCO’s religious accommodation request was denied on appeal on December
27, 2021. Upon denial, Air Force NCO submitted a request for retirement on January 30, 2022,
which the Air Force is still processing. Air Force NCO requested an effective retirement date of
June 1, 2022. Given Air Force NCO’s pending retirement request, his Active Guard Reserve
(AGR) tour was not curtailed pending his retirement and he did not receive adverse action in
accordance with the Secretary of the Air Force’s policy dated December 7, 2021.
4.
At the time of drafting this declaration, the Air Force application virtual personnel center
(vPC) is degraded. As such, the defendants are unable to provide standalone evidence of Air
Force NCO’s retirement request processing. However, attached is a screenshot of information the
degraded vPC shows as of the date this declaration is executed. Beginning along the top, it lists
the “type” as “retirement” as submitted by the member Air Force NCO. The date created is the
date he submitted the request, January 30, 2022. The retirement application progress bar across
the middle shows the request’s current status as pending audit after command coordination was
received by Air Reserve Personnel Center (ARPC). Below that lists the “retirement date” as June
1, 2022. This is the retirement effective date Air Force NCO requested. The screenshot bottom
displays “coordination actions,” which correspond to the green “coordination” checkmark in the
retirement application progress bar. It shows Air Force NCO’s two levels of required command
approval before the application was submitted to ARPC. Coordination was completed by his G-
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Series order commander, Lieutenant Colonel Regina Reyes, on February 16, 2022 and his
Director, Brigadier General William Kountz, on February 22, 2022.
5.
Pursuant to the December 7, 2021 policy, members normally are required to begin
terminal leave no later than 60 days after notification of the religious accommodation request
denial. However, despite his requested retirement date, Air Force NCO has not begun terminal
leave due to his pending Medical Evaluation Board (MEB) processing. The MEB process will
determine whether he is entitled to further evaluation for possible disability benefits through the
Disability Evaluation System (DES) due to a potentially medically-disqualifying condition that is
unrelated to his unvaccinated status. The MEB’s purpose is to determine if a member’s duty-
interfering condition is potentially unfitting for continued military service. Air Force NCO’s
commander must fill out a mission impact statement after coordinating with the medical
provider. An MEB will then be appointed to examine the case. If the MEB determines Air Force
NCO’s condition is not potentially unfitting, then he will be returned to duty. If the MEB
determines the condition is potentially unfitting, then the case will proceed to an Informal
Physical Evaluation Board (IPEB) that examines the case based on the paper record only. If the
IPEB’s determination is unfavorable to Air Force NCO, he has the option to appeal the finding to
a Formal Physical Evaluation Board (FPEB) where he has the right to a hearing. The MEB, and
further DES processing if warranted, will likely require at a minimum several months to
complete. Air Force NCO’s medical processing may impact the retirement processing and
retirement date. Air Force NCO’s AGR orders are presently current through February 23, 2023,
meaning he is in an active duty status through such date. He has not been transferred to the
Individual Ready Reserve (“IRR”). Discharge proceedings have not been initiated against him,
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much less completed.1 Accordingly, these actions have not been reviewed by the Discharge
Review Board and/or the Air Force Board for Correction of Military Records (AFBCMR).
6.
Air Force Officer was notified that her religious accommodation request was denied on
appeal on December 6, 2021. Upon denial, Air Force Officer submitted a request for military
retirement on December 11, 2021. Air Force Officer requested an effective retirement date of
June 1, 2022. Pursuant to Air Force policy, Air Force Officer was placed in a no pay/no points
military status on February 4, 2022. However, this Court issued a preliminary injunction on
February 15, 2022 enjoining the Air Force from enforcing the vaccination mandate or from
taking any adverse action against Air Force Officer on the basis of this lawsuit or her religious
accommodation request. This included “forcing her to retire.” Based on the injunction, the Air
Force rescinded Air Force Officer’s no pay/no points status on February 15, 2022 and Air Force
Officer submitted a request to withdraw her retirement application. Her supervisor, Colonel
Harold Linnean, concurred with the request on February 16, 2022. As of this date, the Air
Reserve Personnel Center (ARPC) confirmed that Air Force Officer is not currently being
processed for a military retirement. She has not been transferred to the IRR. Discharge
proceedings have not been initiated against her, much less completed. Accordingly, these actions
have not been reviewed by the Discharge Review Board and/or the AFBCMR.
7.
Air Force Officer serves as an Air Reserve Technician (ART), and as such maintains an
equivalent position in her civilian status. She submitted a religious accommodation request from
the civilian vaccination mandate in her civilian capacity on November 4, 2021. That request has
not been acted upon as of the date of this declaration in accordance with DoD guidance on
1 Absent additional issues, Air Force policy is to not discharge traditional reservists who continue to refuse to follow
an order to vaccinate. When a service member is subject to administrative discharge and an MEB, the member
cannot be discharged until the MEB process is completed.
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processing civilian religious accommodation requests after a nationwide injunction was granted
in Feds for Medical Freedom et al v. Biden et al. Pending further guidance after that injunction
was overturned, civilian requests are still in a hold posture and have not been processed.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true
and correct. Executed this 11th day of May 2022.
JAMES A. RIGSBEE, Colonel, USAF
Chief, Readiness and Integration Division
Attachment:
Screenshot of “Air Force NCO” Retirement Application Progress in Air Force MyPers Virtual
Personnel Center (vPC), undated
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