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Pentagon prepping answer to Oklahoma request to exempt National Guard from Covid vaccination mandate

"This is a political grenade rolling around the kitchen floor, and we don’t know where it’s going to stop," said a military law expert.
Members of the Oklahoma National Guard at the state Capitol in Oklahoma City on Jan. 17.
Members of the Oklahoma National Guard at the state Capitol in Oklahoma City on Jan. 17.Sue Ogrocki / AP file

The Defense Department is "preparing a written response" to the request by Oklahoma’s governor that his state’s National Guard be exempt from the Pentagon mandate that all military personnel be vaccinated against Covid-19, Pentagon spokesman John Kirby said.

Three senior military officials said the Pentagon is not expected to approve the request from Gov. Kevin Stitt, a Republican who asked this month that the 8,000 members of the Oklahoma National Guard be exempted.

Still at issue, however, is whether the Pentagon has the power or the means to force members of the National Guard — who take their commands from state governors in most circumstances — to get vaccinated. More than 400,000 Americans serve in the National Guard.

Two U.S. military officials said the military is concerned that other governors could follow Oklahoma’s lead and exempt their Guard members from the vaccination mandate. "We know other states are watching what happens with Oklahoma," an official said. 

Kirby said Wednesday that he is not aware of any other states that have reached out to the Pentagon with requests for exemptions. "If there’s a snowball effect, we haven’t seen it yet," he said.

Oklahoma Gov. Kevin Stitt gives the thumbs up after getting the Johnson & Johnson vaccine shot March 29 in Oklahoma City. Sue Ogrocki / AP file

Eugene Fidell, who teaches military law at New York University Law School, said he is also concerned by the potential impact of Stitt’s actions.

"This is a political grenade rolling around the kitchen floor, and we don’t know where it’s going to stop," Fidell said. "This is a very ill-advised initiative by the governor of Oklahoma."

In August, Defense Secretary Lloyd Austin ordered "all members of the Armed Forces under DoD authority on active duty or in the Ready Reserve, including the National Guard," to get vaccinated.

Stitt sent a letter to the Pentagon this month asking Austin not to enforce the mandate on the Oklahoma Army and Air National Guard.

"It is irresponsible for the federal government to place mandatory vaccine obligations on Oklahoma national guardsmen which could potentially limit the number of individuals that I can call upon to assist the state during an emergency," Stitt wrote.

Stitt then fired the commander of the Oklahoma National Guard and appointed Army Brig. Gen. Thomas Mancino as the new commander. He ordered Mancino to create a policy allowing members of the Guard to decline vaccinations. Mancino complied and announced that he would not enforce the mandate, unleashing a legal back-and-forth about who has authority over state National Guard members. 

Congress established a dual structure for the National Guard, under which members of the Guard answer to both the president and to their states’ governors.

When the Guard is training, it is serving under Title 32 of the U.S. Code, but it is state-controlled, and members take orders from their governors.

On state active duty — for example, when responding to tornadoes or wildfires — the Guard still takes orders from governors.

When it is activated by the president, however, the Guard serves under Title 10 of the U.S. Code and takes orders from the president and the federal government. Examples would include overseas training or military service, as in Iraq and Afghanistan.

National Guard members thus spend most of their time on state duty, answering to their governors. 

Mancino said Saturday that Stitt and those in his chain of command are the only people who can give Oklahoma Guard members "lawful" orders while they are on state duty.

"If you [Oklahoma Guard members] are not mobilized on Title 10 orders, the only entity that can give you a ‘lawful’ order — that is an order backed by the authority of law — is the governor and his designated state chain of command," Mancino said. "This is easily seen by the fact that the [Uniform Code of Military Justice] does not apply to you in Title 32 status. Instead, you are governed by the Oklahoma Code of Military Justice (OCMJ)."

Mancino said he would carry out the federal mandate if the Oklahoma National Guard is placed on Title 10 federal duty.

Kirby, the Pentagon spokesman, asserted Wednesday, however, that Austin has the authority to enforce the vaccination mandate among members of the Guard even if they are not on Title 10 federal duty status.

"The secretary of defense, as well as the service secretaries, have the authorities to establish readiness requirements for all members of the Department of Defense, and that includes the National Guard in a Title 32 status,” Kirby said at a Pentagon briefing. “So the secretary has the authorities he needs to require this vaccine across the force, including the National Guard.

"It is a lawful order for National Guardsmen to receive the Covid vaccine,” he said. “It’s a lawful order, and refusing to do that, absent of an approved exemption, puts them in the same potential as active-duty members who refuse the vaccine. It’s a lawful order, and they are subject to that order."

However, Fidell, the military law expert, said that Mancino is correct that Oklahoma National Guard members are not subject to the Uniform Code of Military Justice when they are not on Title 10 federal duty and that therefore the federal government’s powers to enforce the mandate are constrained.

The Pentagon could put the entire Oklahoma National Guard on Title 10 duty and enforce the mandate, Fidell said. "In theory you could federalize the National Guard, but the cost to the taxpayers would be considerable."

Another option, he said, would be for the Pentagon to punish the individual Guard members for obeying the orders issued by their state chain of command. The Pentagon would withdraw the individual service members’ federal recognition, Fidell said, meaning they would remain in the Guard but not get paid or have the federal reservist status they need for promotion and retirement requirements.

A senior defense official said Wednesday that ultimately vaccination mandates are an issue of medical readiness and that the requirements are set by the Pentagon. 

"Whether or not a governor enforces that under his or her own authority is another matter, but it in no way relieves members of the National Guard from compliance with medical readiness requirements established by the secretary of defense and the secretaries of the military departments,” the official said. 

Mancino, the commander of the state Guard, said Saturday that he is vaccinated and encourages all Guard members to get vaccinated.