My COVID-19 Religious Accommodation Request Was Denied. Should I Appeal?

With over 12,000 service members having submitted religious accommodation requests to be exempted from the COVID-19 vaccine, and only two approvals to date, it’s clear that the Department of Defense’s (DoD) religious accommodation process is simply a ruse, with no real regard for servicemembers’ sincerely held religious beliefs.

Given the tidal wave of denials, servicemembers might understandably feel discouraged and want to give up the fight by not filing an appeal. This is a MISTAKE. The fight to preserve religious liberties in the face of the DoD’s senseless COVID-19 policies is a marathon, not a sprint. To have the best chance for success, it is critical that servicemembers seeking religious exemptions exhaust every potential remedy, including timely filing an appeal.

MJA has successfully helped servicemembers fight unjust separation actions and is actively engaged in the battle against the DoD’s unjust COVID-19 actions. If your religious accommodation request was denied and you want to appeal, contact us today for your free consultation.

RELIGIOUS ACCOMMODATION PROCESS IS “THEATER”

Media outlets report that over 12,000 service members have submitted religious accommodation requests to be exempted from the COVID-19 vaccine. This includes approximately 4,700 religious exemption requests in the Air Force; 2,700 in the Navy; 3,100 in the Marine Corps; and 1,700 Army requests. Until recently, none of those requests had been approved, drawing criticism from servicemembers, lawmakers, and the courts.

However, federal judges are catching on.

On November 22, 2021, a district court judge in Florida wrote that “the [military] plaintiffs’ contention is — based on current data — quite plausible that each branch’s procedure for requesting a religious exemption is a ruse that will result inevitably in the undifferentiated (and therefore unlawful under RFRA) denial of each service member’s request.”

On January 3, 2022, a district court judge in Texas wrote that “The Navy provides a religious accommodation process, but by all accounts, it is theater. The Navy has not granted a religious exemption to any vaccine in recent memory. It merely rubber stamps each denial.”

These harsh critiques of the military’s religious accommodation process appear to have had some immediate effect. A few days later, the Marine Corps announced that it granted two service members permanent religious exemptions from the COVID-19 vaccine.

Not surprisingly, the Marine Corps did not provide any details on the circumstances surrounding the two exemptions. It would not be shocking to learn that the exempted Marines already had one foot out the door (e.g. retirement eligible, medical discharge, etc), giving the Marine Corps an easy excuse to grant the exemptions while creating the appearance of fairness.

Regardless of the circumstances, the Marine Corps’ approvals open the door for the other branches to follow suit and provides hope that more approvals will come.

REASONS TO APPEAL

An initial denial of a religious accommodation request does NOT end the process. Service members can, and should, appeal the denial! Appealing the denial is important because it:

Gives you a second shot. Different authorities are responsible for reviewing religious accommodations requests and appeals. For example, the Deputy Chief of Naval Operations (DCNO) (N1) is responsible for acting on initial religious accommodation requests in the Navy, but appeals are reviewed by the Chief of Naval Operations for final adjudication. Submitting an appeal puts your case in front of a second reviewing authority and gives you another chance for approval.
Exhausts administrative remedies. Federal courts and DoD administrative appeal boards often require petitioners to “exhaust all available administrative remedies” before bringing an action. In the context of religious exemptions, this could mean not only filing the initial request but also appealing the denial. Filing an appeal shows that you exhausted all available military processes to seek relief.
Creates more time for courts intervene. Filing an appeal also creates more time for federal courts to intervene. The DoD’s almost total refusal to grant religious accommodations remains the subject of ongoing litigation. On 3 January 2022, a federal judge in Texas granted a preliminary injunction stopping the Navy from acting against 35 Navy Seals for refusing the COVID-19 vaccine on religious grounds. The judge explained that the Sailors’ case seeks to “vindicate the very freedoms they have sacrificed so much to protect” and that “[t]here is no COVID-19 exemption to the First Amendment.” If the DoD does not respect the religious liberties of servicemembers, federal courts may well intervene.

DEADLINE TO APPEAL

Like all things COVID-19 related in the military, the deadline to appeal denial of a religious accommodation request varies between the branches.

Generally, the Army requires that appeals be submitted within seven (7) calendar days from notification of the denial; the Navy five (5) business days; the Marine Corps ten (10) business days to appeal; and the Air Force allows only five (5) calendar days from denial to submit an appeal.

The appeal timeline SHOULD begin from the date you acknowledge receipt of the denial and are informed of your right to appeal. This is usually different than the date listed on the denial letter, which can be dated many days or even weeks earlier.

The general deadlines listed above may be subject to change, however, and individual units may demand that you submit your appeal sooner. For this reason, it is critical that you understand exactly when the command says your appeal is due and contact an attorney immediately after your accommodation request is denied.

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