The commander of a Navy destroyer who refused the COVID-19 vaccine and sued the service has been removed from command, according to a court filing in his case.
"On Monday, April 11, instead of getting underway with his ship, Navy Commander was 'temporarily reassigned' for 60 days under a new Navy policy that prohibits unvaccinated personnel from going underway on Navy ships," a declaration from the officer's lawyer reported to the court.
The commander, along with more than 30 unnamed officers and enlisted personnel from all the military branches, sued the military over the vaccine mandate in November 2021 in a federal court in Florida. Since then his case, along with one filed by Navy SEALs in Texas, touched off a legal debate about how much power the military has to enforce the vaccine mandate and the nature of the religious exemption process.
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Judge Steve Merryday, who is presiding over the commander's case, ruled in early February that, for the sake of "preservation of the status quo" while the suit is being decided, the Navy was barred from reassigning or demoting the commander. A second order, reaffirming and lengthening the term of the injunction, followed Feb. 18.
The order set off a series of filings from the service that argued the order forcing it to keep an officer who refused to take the vaccine in a place of command "indefinitely sidelines a Navy warship."
However, on March 25, the Supreme Court ruled that the Navy is allowed to make its own decisions about whether to deploy sailors who refuse the coronavirus vaccine. On March 30, "following the Supreme Court's lead," the Court of Appeals for the 11th Circuit stayed Merryday's injunction.
Since that time, neither the Navy nor the Justice Department, which has been handling the messaging for the case, would say if the commander had, in fact, been reassigned.
Legal filings say the officer, who is not identified in the lawsuit, joined the Navy in 2004 and now has "nearly 18 years in the service." Other documents filed by the Navy show that the destroyer he commanded is based in Norfolk, Virginia, and belongs to Destroyer Squadron 26.
According to the complaint, the commander filed a religious accommodation request in September 2021 but was denied a month later; he appealed in November. The Navy tried to remove the man from the post but, according to court documents, it wasn't over the accommodation request or his refusal to get the vaccine.
The commanding officer's boss -- Capt. Frank Brandon -- told the court that the Navy's objection to keeping the skipper in place was over his disregard for policies designed to protect his own crew.
Brandon testified to two incidents that made him lose faith in the commander's ability to lead the destroyer.
The first incident happened in early November when, according to Brandon, the commander gave a briefing to "roughly 50-60 personnel ... in shoulder-to-shoulder proximity," despite the fact that "he could barely speak." When Brandon questioned the commander in his cabin, the man conceded that he had a sore throat but blamed it on a jog in the cold air. The unvaccinated commander was ordered to get a COVID-19 test, which came back positive.
The second incident occurred three months later in early February 2022. According to Brandon, the commander told him he needed to take leave but failed to tell his boss that he was leaving the Norfolk area "in order to testify in this litigation." This was not only a breach of Navy travel policy amid the pandemic but a breach of trust as well, he said.
"My loss of confidence in [the ship's commander] is not based on his vaccination status or his denied request for a religious exemption," Brandon wrote in the filing. "It is based on the fact that I cannot trust his judgment, I cannot trust him to look after the welfare of his sailors, and I cannot trust him to be honest with me."
A service policy, published in November 2021, notes that "Navy service members who are not vaccinated, regardless of exemption status, may be temporarily reassigned with concurrence of the first flag officer in the administrative chain of command based on operational readiness and mission requirements."
-- Konstantin Toropin can be reached at konstantin.toropin@military.com. Follow him on Twitter @ktoropin.
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