A federal judge in Florida has forbidden the Navy from removing a commander of a destroyer while he seeks a religious exemption from the vaccine, even though he has allegedly disobeyed the service's rules for coronavirus mitigation, Military News has reported.
The judge's ruling is part of a case that seeks to be a class-action lawsuit on the military's vaccine mandate filed by more than 30 unnamed officers and enlisted personnel from all the military branches in November 2021.
Judge Steven Merryday said he issued the order for the sake of "preservation of the status quo" while the case is being decided and reflected his opinion that the Navy is likely unable to prove that it was considering religious exemptions on a case-by-case basis, as required by the Religious Freedom Restoration Act (RFRA), according to Military News.
Merryday's order also criticized the Navy's contention that "mitigation measures other than vaccination 'are simply not as effective as vaccination' " as "reaching disputed medical conclusions."
A hearing to further decide whether the Navy can reassign the commander will be held on Thursday.
The officer at the center of the dispute is an unnamed commander of a destroyer based in Norfolk, Virginia, and is part of Destroyer Squadron 26. The Navy said the judge's ruling "indefinitely sidelines" a warship.
The commander filed his religious accommodation request on Sept. 13, 2021. It was denied in October, and he appealed in November.
Capt. Frank Brandon, the commander's boss, said the Navy's objection to keeping him in place is not about the commander's request for an exemption but his disregard for policies meant to protect his own crew.
Brandon testified to two incidents that made him lose faith in the commander's ability to lead the destroyer, including going to work with symptoms, Military News reported
After that first incident, Brandon reprimanded him on Dec. 3.
The second incident took place last month when Brandon said the commander told him he needed to take leave, but not that he was leaving the area. This, Brandon said, is a breach because the Navy needs to know a sailor's whereabouts while on leave in case the ship needs to recall its crew in an emergency.
"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. "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."
Vice Adm. Daniel Dwyer, commander of the Norfolk-based Second Fleet, also testified that Merryday's order not only "directly interferes" with the Navy's ability to enforce policy but has operational impacts as well, because "it is untenable that a subordinate commander may choose to disregard, modify, or half-heartedly execute a senior officer's orders due to his or her personal beliefs," according to Military News.
Merryday said he does not dispute the legality of the vaccination order, that there is no dispute on the benefits of vaccination, and that the Navy's argument that it is not for the courts to dictate how it runs itself is "largely correct, but insists that RFRA allows service members to challenge the vaccination order regardless of other issues."
Last year Merryday also blocked a CDC order that limited cruise ship operations due to the pandemic.
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