Liberty Counsel filed a motion seeking to extend the temporary restraining order (TRO) to federal Judge Steven Merryday for a U.S. Air Force Academy Cadet who faced immediate discipline after being denied his appeal for a religious accommodation from the COVID shot mandate.
On June 2, 2022, the Court extended the TRO for Cadet through June 30, 2022, and stayed this action pending the resolution of the motions for class certification in Air Force Officer v. Austin. However, without this extension now, the Cadet still faces the same irreparable harm he faced when the Court previously granted his TRO.
The Cadet is a Christian with sincerely held religious beliefs that compel him to abstain from accepting or receiving anything that has connection to abortion. During the hearing, the Cadet told the judge that his fellow cadets don’t have a problem with his vaccination status and that the Air Force Academy is now open to the public, where unvaccinated visitors may explore the grounds and dine with cadets in the mess hall.
The Cadet received an award for “Outstanding C4C of the Semester” for being the most outstanding cadet in the entire freshman class (approx. 1,070 cadets). He became a member of the U.S. Air Force Academy last fall. His grandfather served in the Army, and his father, aunt and uncle all attended the Air Force Academy.
When the Cadet was informed of the shot mandate, he was required to attend counseling with his commanding officer concerning his religious accommodation “to discuss if [he] even qualif[ies] and what the process is.” The Cadet’s command then informed him that he should “manage his expectations” because he would not be receiving a religious accommodation from the mandate. The Cadet submitted a request for a religious accommodation and he received word from his command on September 10, 2021 that the review board had recommended his religious accommodation request for disapproval. On October 29, 2021, his chaplain recommended religious accommodation request be approved. Other members of the review committee noted, “I understand that in their current position, being unvaccinated may not have a large impact…”, but the committee denied the Cadet’s lawful right to religious accommodation anyway.
The Cadet’s command further informed him that his “chances of it being approved are looking slim” and that nobody who had submitted a request for religious accommodation had been approved. Cadet formally received the denial of his request for religious accommodation on December 22, 2021. On March 30, 2022, the Air Force ordered the Cadet to choose between the shot or “voluntary” resignation from the Air Force Academy within five calendar days or face “disciplinary action” and “initiation of administrative separation.” The Air Force then extended the Cadet’s compliance deadline to April 25.
During the hearing, Liberty Counsel presented evidence of March 2022 memos from Major General Richard D. Burke (Two-Star General), Deputy Principal Cyber Advisor to the Secretary of Defense and Senior Military Advisor for Cyber, and Lieutenant General Michael Howard (Three-Star General), who oversees the U.S. European Command (EUCOM) as Deputy Commander, regarding the approval of mission critical travel for unvaccinated service members who have “no discernable negative impact” on military readiness.
The memo dated March 5, 2022, from Maj. Gen. Burke requested certain “unvaccinated” service members be approved for “mission essential” travel and deployment. He wrote, “Assessed risk to force for co-mingling vaccinated and unvaccinated personnel is low.” In a second memo written the same day, Maj. Gen. Burke wrote: “Headquarters and Headquarters’ Battalion (HHBN), V Corps is 97% fully vaccinated. Assessed risk to force for comingling vaccinated and unvaccinated personnel is low.”
On March 6, 2022, Lt. Gen. Michael Howard’s response to Maj. Gen. Burke’s request regarding “unvaccinated” service members for “mission essential” deployments, wrote “The request…is approved.”
In addition, on January 6, 2022, Brigadier General Paul Moga, a one-star general and commandant of the Air Force Academy, announced to the cadets at a lunch meeting regarding the Omicron variant that “there is very little danger to the force.”
In Congressional testimony on February 17, 2021, Joint Chiefs of Staff Vice Director for Operations, Maj. Gen. Jeff Taliaferro, a two-star general, said the military was “fully capable of operating in a COVID environment before vaccinations were available.” Rep. Mike Rogers (R-AL), Ranking Member of the House Homeland Security Committee, asked: “So I take that to mean yes, they’re deployable even if they have not been vaccinated?” Maj. Gen. Taliaferro responded: “Yes, Sir.”
Liberty Counsel also introduced evidence regarding a new change by the Marine Corps for “Quarantine and Isolation” (Q&I). Based on the data, the Marine Corps no longer requires COVID-positive Marines to Q&I from healthy Marines. Now, they are in the same barracks as Marines who do not have COVID and there is no longer any testing required.
Liberty Counsel Founder and Chairman Mat Staver said, “This Air Force Cadet deserves protection from making the choice between his religious convictions and his service to our nation. Liberty Counsel will continue to fight for them until this abuse ends.”
