A Norfolk, Va.-based warship is “out of commission” after a federal judge barred the Navy from removing its commanding officer over his refusal to get vaccinated against Covid-19 despite the ship’s service commanders saying they have lost their faith in his ability to lead, according to reports.
The unnamed Navy commander was part of a class-action lawsuit in October with several other service members challenging the military’s Covid-19 vaccine mandate on religious grounds, according to Stars and Stripes. The commander later refiled a suit against the military in January with an unnamed Marine lieutenant colonel.
Last month, Judge Steven Merryday, a federal judge in Florida, ruled that while the case is being decided, the Navy cannot reassign or demote the unnamed commander for the “preservation of the status quo,” Military.com reported.
The Navy requested an emergency stay on the injunction on February 28, claiming the order would keep the service “from removing an officer from … commanding officer billets who the military has deemed unfit for command,” according to court documents.
“The order is an extraordinary intrusion upon the inner workings of the military that presents a direct and imminent threat to national security during a global military crisis, and it indefinitely sidelines a Navy warship,” the service argued in its appeal on the injunction.
Merryday denied the service’s request to issue an immediate pause on the temporary injunction and accused the Navy’s attorneys of trying “to evoke the frightening prospect of a dire national emergency resulting from allegedly reckless and unlawful overreaching by the district judge.”
However, he will hold a hearing Thursday to consider allowing the reassignment of the commander.
“This peculiarly subjective determination of ‘lost confidence,’ arriving suddenly after 17 stellar years of service by [the commander] and after, to say the least, tense exchanges with his superior officer about vaccination and about his religious exemption claim does not warrant immediate deference but, rather, demands a closer examination,” Merryday said in his response.
The commander, who joined the Navy in 2004, commands a guided-missile destroyer belonging to Destroyer Squadron 26, according to court records. He filed a religious accommodation request on September 13, 2021, which was denied the next month. He appealed the denial in November.
The judge found that the military is violating the commander’s and lieutenant colonel’s religious rights, while the Navy argued in its appeal that “the threat to military readiness and national security outweighs the impact on these plaintiffs of additional military proceedings while an appeal is pending in this matter.”
Higher ranking officers say they have “lost confidence in [the commander’s] ability to lead and will not deploy the warship with him in command” for reasons outside of his refusal to get vaccinated, according to court documents.
“The court’s order effectively requires the Navy to leave a subordinate commander in command of a warship despite his senior officer’s questions related to his fitness to discharge his duties as ordered,” Vice Admiral Daniel Dwyer, the commander of 2nd Fleet, wrote in testimony to the court.
The commander’s boss, Captain Frank Brandon, says the Navy objects to keeping the commander in his role not because of the vaccine refusal but because he has allegedly disregarded policies intended to protect the crew.
Brandon testified about an incident in November in which the commander attended a navigational meeting with 50 to 60 other people though he could “barely speak” and had a sore throat. Brandon later ordered the commander to take a Covid-19 test, which came back positive.
“If there was any question on the need to get tested, then he should have taken the test to remove any doubt and protect his crew from the spread of [the coronavirus,]” Brandon said, adding that the commander’s actions violated Navy rules that symptomatic personnel must be tested, according to Stars and Stripes.
Brandon wrote the commander an administrative letter of instruction “intended to document deficiencies and prescribe corrective action.”
In a second incident two months later, the commander allegedly lied when he requested a leave, saying he would remain in the local area to spend time with family. Brandon discovered the commander flew to Florida to testify in his court case.
“I consider [the commander’s] failure to notify me that he was traveling out of area to be an egregious breach of trust,” Brandon wrote in his testimony. “I believe that [he] intentionally misled me. This is cause alone for removal.”
The commander did not fill out a required risk assessment of his travel before his leave. In “most cases” the Navy requires unvaccinated sailors to quarantine when returning from travel, according to the testimony.
“If I cannot trust the commanding officer of a guided-missile destroyer to honestly apprise me of his whereabouts, I cannot trust him with command of the ship or [its] crew,” Brandon said.
Brandon also expressed concern that allowing the commander to remain in his role would place him in charge of enforcing policies “from which he is immunized.” Brandon questioned whether the commander would enforce Navy orders to require vaccination for his 320-person crew.
“In my professional judgment, I cannot leave him in command of a Navy warship, regardless of his vaccination status or religious exemption request,” Brandon said. “[The commander] put his crew at risk due to his personal actions and failed to comply with the Navy’s [coronavirus] policies.”
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