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SECDEF Austin rejects OK Nat’l Guard vaccine exemption request; unvaccinated troops may lose federal pay

Secretary of Defense Lloyd J. Austin III briefs the media on Afghanistan, the Pentagon, Washington, D.C., Aug. 18, 2021. (DoD photo by Lisa Ferdinando)
November 30, 2021

On Monday, Secretary of Defense Lloyd Austin rejected a request by Republican Oklahoma Gov. Kevin Stitt to exempt his state’s National Guard from the Pentagon COVID-19 vaccine mandate. Austin said troops not in compliance with the vaccine mandate could jeopardize their National Guard status, thus losing federal pay and benefits.

Stitt had requested in early November for the Pentagon to exempt members of the Oklahoma Guard from the federal vaccine mandate. In a response letter to Stitt, which was provided to the Associated Press, Austin said all members of the Oklahoma Army and Air National Guard, “regardless of duty status,” must follow the specified vaccination directions of the Army and Air Force service secretaries.

“Failure to do so may lead to a prohibition on the member’s participation in drills and training” conducted under Title 32 of the U.S. Code, “and jeopardize the member’s status in the National Guard,” Austin added.

One of the underlying issues with applying the vaccine mandate to states’ National Guard troops is a question of whether the federal government or the state’s governors have the higher authority over the National Guard forces of the states.

National Guard troops can be mobilized either at the state level or at the federal level, under Title 10 of the U.S. Code. Under Title 10, National Guard troops fall under the command of the federal government. National Guard troops can also be called up under the authority of the states, but with funding from the federal government through Title 32.

Title 32 mobilizations typically involve a state governor calling up their state’s National Guard troops to respond to a localized need, such as disaster relief, but at the direction of a federal request. Title 32 is also used to mobilize troops for federal training.

The nature of Title 32 mobilizations has created a question about whether National Guard troops can still be mandated to be vaccinated for what is still considered state-level service.

The Pentagon’s position is that National Guard troops mobilized under Title 32 can be mandated to take the vaccines.

“National Guard, as you know, even under Title 32 is funded by the federal government,” Pentagon press secretary John Kirby said in a Monday press briefing. “So, training operations that come under Title 32, much less Title 10 come into the Secretary’s purview. So, one could elect not to take the vaccine, of course, but then you would be putting at jeopardy your ability to stay in the National Guard.”

Stitt maintains that even though troops receive federal funding under Title 32, they remain under the state’s authority and therefore should not be made to follow an order not given by their current commander-in-chief, the state’s governor. Charlie Hannema, a spokesman for Stitt’s office, told the Associated Press that even under Title 32, Stitt “maintains his position” at the head of the Oklahoma National Guard’s chain of command.

Retired Brig. Gen. J. Roy Robinson, president of the National Guard Association of the U.S. also told the Associated Press, that he believes until a service member is activated in Title 10 status, under the control of the federal government, the state retains any authority for enforcing requirements, including vaccinations.

According to the Associated Press, in his response letter to Stitt, Austin left open the question of how the Pentagon will handle Oklahoma National Guard troops who do not comply with the vaccine mandate. With the Air Force deadline of Dec. 2 for Air National Guard troops to be vaccinated, it is unclear if unvaccinated troops who arrive for federally funded training in December and January will be made to get a vaccine shot upon arriving at training, sent home or reassigned if they refuse. During his Monday press briefing, Kirby said such questions should be answered by the Oklahoma National Guard.

“As to the specifics of how that would play out, I’d refer you, in this case, specifically to the Oklahoma National Guard to speak to,” Kirby said.

The Pentagon confirmed that states’ National Guard troops who are not fully vaccinated could jeopardize their individual status as National Guard members and instead only hold status as a member of their state’s militia, subject to the state’s own authorities.

According to Stitt’s office, more than 1,000 service members from both the Oklahoma Army and Air National Guard components — about 13 percent of the state’s approximately 8,200 troops — have said they won’t get the vaccine altogether. In mid-November, Oklahoma National Guard Adjutant General Thomas Mancino issued a memo which said no Guardsmen will be ordered to take the COVID-19 vaccines and “no negative administrative or legal action will be taken against Guardsmen who refuse the COVID-19 Vaccine.”